NY IHO #594729-20240122: Impartial...

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CASE NUMBER: 594729

FINDINGS OF FACT AND DECISION

Student’s Name^[1]: [Redacted] (“Student”)

Date of Birth: [Redacted]

School District: [Redacted] CENTRAL SCHOOL DISTRICT

Hearing Requested by: [Redacted] (“Parents”)

Request Date/Date Complaint Filed: January 5, 2023

Date(s) of Hearing: April 17, 2023

April 25, 2023

April 26, 2023

June 27, 2023

July 26, 2023

August 14, 2023

September 18, 2023

November 1, 2023

Actual Record Closed Date: January 8, 2024

Date of Decision: January 22, 2024

Date of Distribution if Different than Decision Date: January 22, 2024

Hearing Officer: Linda Agoston

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

[Redacted], First Grade Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

[Redacted], OT Provider

[Redacted], Resource Room Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 26, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 27, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

[Redacted], Ph.D., Neuropsychologist

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 27, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

[Redacted], Ph.D., Neuropsychologist

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 18, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

[Redacted], Speech Pathologist

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 1, 2023

For the Student:

[Redacted], ESQ. Attorney

[Redacted], Parent

[Redacted], Ph.D., Neuropsychologist

For the District:

[Redacted], ESQ. Attorney

[Redacted], ESQ. District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about January 5, 2023 (P-Exh. A)^[2].

On January 11, 2023, I was designated by the [Redacted] Central School District ("District") as impartial hearing officer, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program in the matter of [Redacted] (hereinafter "[Redacted]"). A pre-hearing conference was held on February 21, 21, 2023. Hearings were held on April 17, 2023, April 25, 2023, April 26, 2023, June 27, 2023, July 26, 2023, August 14, 2023, September 18, 2023 and November 1, 2023 via zoom video conference. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than the consequences of any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted (IHO-Exhs. II-XII). The compliance date was extended as a result of the request for additional hearing dates and for the submission of briefs. The District's representative submitted her brief on January 8, 2024 (IHO-Exh. XIII) and the parents' representative submitted her brief on January 8, 2024 (IHO-Exh. XIV). The record close date is January 8, 2024 and the decision due date is January 22, 2024.

It was a closed hearing, and parents were represented by [Redacted], Esq. and the District was represented by [Redacted], Esq. and [Redacted], Esq. The parent entered into evidence exhibits (P-Exhs. A-TT). The District entered into evidence exhibits (D-Exhs.1-66)^[3].

The record was closed on January 8, 2024.

The hearing was requested by the parents of [Redacted] to challenge the review and recommendation of the Committee on Special Education ("CSE") to classify [Redacted], residing in the territorial jurisdiction the District, and request the following: (1) an order finding that the District failed to provide a free and appropriate public education ("FAPE") during the 2020-2021 school year("sy") as the parents challenged the Individualized Education Program ("IEP") dated September 9, 2021 (D-Exh. 33) and challenged the IEP for the 2022-2023 sy dated May 27, 2022 (D-Exh. 61); (2) an order finding that the [Redacted] School ("[Redacted]") was appropriate and that the equities favor the parents and (3) an order that the District provide tuition reimbursement / prospective payment for the unilateral placement at the [Redacted] for the 2021-2022 and 2022-2023 sys (P-Exh A at 12). [Redacted] is a non-State-approved private school for learning disabled ("LD") students located in [Redacted], New York for kindergarten through the 9^th grade. The parents brought the hearing seeking tuition reimbursement/direct funding for the 2021-2022 and 2022-2023 sys. The parents requested an undefined amount of compensatory education for the lack of a FAPE for the 2020-2021 sy(Id.).

The parents alleged in their DPC dated January 5, 2023, that the District failed to provide a FAPE for the 2021-2022 sy and the 2022-2023 sys for the following: the failure to adequately evaluate [Redacted]; the failure to offer strategies based on "peer-reviewed research"; the failure to develop a legally appropriate IEP by the lack of an appropriate Functional Behavior Assessment ("FBA") and resultant Behavior Intervention Plan ("BIP"); the failure to offer appropriate goals or related services; the failure to consider the full continuum of services. The parents further alleged that the District did no not follow the procedural requirements and did not afford the parents with meaningful participation in the development of the IEP and did not offer an extended school hear ("ESY") and did not provide adequate supports (P- Exh. A at 7-9).

The parents maintained that the District violated Section 504 / ADA as [Redacted] needed "disability-specific services in order to enjoy meaningful access to the benefits offered by a school district" and asserted that "the school district must make those services available as a reasonable accommodation" (P-Exh. A at 9-10). The parents argued that [Redacted] was appropriate and the equities favored them. The parents brought the hearing seeking tuition reimbursement for the 2021-2022 sy, in the amount of $ $[Redacted]and $[Redacted]for the 2022-2023 sy (P-Exhs. F at 4; L at 3).

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.

BACKGROUND

[Redacted] is [Redacted] years old, born on [Redacted]. He is currently attending [Redacted]. He was eligible for services through the Committee for Preschool Special Education ("CPSE”) as he experienced difficulties with holding a pencil (P-Exh. EE at 1).

[Redacted] experienced medical issues involving an adenoidectomy in October 2017(P-Exh W at 4), hospitalization for bladder issues per testing on October 2020 (D-Exh. 11) and surgery on December 18, 2020 (D-Exhs. 13, 15), eye doctor issues on April 12, 2021 (D-Exh. 36) and an emergency appendectomy on May 18, 2021 (D-Exh. 39). He had motor difficulties and ear infections creating hearing problems and oral motor difficulties causing rhyming difficulties (T.801;919).

An Occupational Therapy ("OT") evaluation was conducted on May 24, 2018 when [Redacted] was 4 years and 3 months, at the [Redacted] Center for Speech Disorders. The OT evaluator used the Beery Buktenica Development Test of Visual Motor Integration ("Beery VMI") and found that [Redacted] performed in the below average range in copying line drawings (P-Exh. EE at 6). The OT evaluator used the Peabody Development Motor Scale-Second Edition ("PDMS-2") and found that [Redacted] required OT to address deficits in motor, visual motor and sensory integration as he scored in the 1^st percentile in grasping, in the 5^th percentile in visual motor integration and was at a <11^st percentile in fine motor quotient (Id.).

A Psychological evaluation test was conducted on May 24 2018, when [Redacted] was 4 years and 4 months due to concerns about articulation and fine motor issues (P-Exh. DD at 1). The school psychologist from [Redacted] Center for Speech Disorders assessed [Redacted]'s intelligence and found average cognition scores based on the Wechsler Preschool and Primary Scale of intelligence ("WPPSI"). The WPSSI scores were as follows: verbal comprehension score was 105, (in the 63^rd percentile), visual spatial score was 91, (in the 27^th percentile), and the full-scale score was 99, (in the 47^th percentile), in the average range (P-Exh. DD at 2).

The Preschool Student Evaluation Summary report dated May 24 2018, at [Redacted] Center for Speech Disorders, indicated that [Redacted] struggled socially and displayed maladaptive behaviors that included being overly dependent as well as having eating and sleeping problems, tantrums, and was uncooperative when he did not want to do something (P-Exh. AA at 2).

The Social History dated May 24 2018, at the [Redacted] Center for Speech Disorders indicated that [Redacted] attended preschool at age 2 years old and 8 months at [Redacted]Center. At [Redacted]Center his teachers were concerned with his fine motor skills as [Redacted] had trouble staying within the line (Exh. CC at 2).

On June 4, 2018, the private speech language evaluation ("SLE") was conducted on [Redacted] at home, when he was 4 years old and 4 months. The speech and language pathologist ("SLP") measured [Redacted]’s receptive and expressive language and reported average skills on the Preschool Language Scale 5 Auditory comprehension and Expressive Language subtests (P-Exh. W at 2). The SLP used the Clinical Assessment of Phonology and Articulation -2 to assess phonology and found that [Redacted] was below average with a standard score of 81 and a percentile ranking of 9 (P-Exh. W at 3). The SLP noted that "[Redacted]"(P-Exh. W at 4) and the SLP recommended that CSE meet to decide SLT eligibility (P-Exh. W at 5).

For the 2018-2019 sy, on June 17, 2018, the District’s CPSE classified [Redacted] as a Preschool Student with a Disability on the IEP and recommended speech language therapy ("SLT") in a small group twice weekly for 30 minutes per session in school; OT once weekly for 30 minutes in the home/school setting; individual OT once weekly for 30 minutes in a facility. [Redacted] did not use language with his peers as reported by his teacher (P-Exh. GG at 1). The IEP indicated 2 SLT goals to eliminate the phonological process of deletion of final consonants and eliminate the use of the phonological process cluster simplification. The annual goals were to eliminate the phonological process liquid simplification and to produce 5 intelligible sentences (P-Exh GG. at 8-9). The IEP's social/emotional/behavior goal was to engage in cooperative play. The motor goals were to complete classroom activities for a minimum of 5 minutes without fatigue (to grasp objects, use basic cutting skills) and to visually track a moving object and trace lines and letters and draw symbols, letters with no more than 2 errors (P-Exh. GG at 9-11).

The District conducted a SLE dated March 12, 2019, when [Redacted] was [Redacted] years old and [Redacted] months (D-Exh. 65). The SLP measured [Redacted]’s receptive and expressive language and reported average skills in receptive language and just above average skills on in expressive language on the Clinical Evaluation on Language Fundamentals-Preschool Second Edition ("CELF-Preschool 2"). The CELF-Preschool 2 also found that that his articulation was within the normal range (D-Exh. 65).

For the 2019-2020 sy, [Redacted] fell into the jurisdiction of the CSE and on April 10, 2019, the District's CSE classified [Redacted] with an Other Health Impairment ("OHI") and recommended that for Kindergarten he be placed in a 10-month program in a general education classroom at [Redacted] ("[Redacted]") in his home district (D-Exh. 66 at 1, 7), and receive OT twice per week for 30 minutes per session in a 6-day cycle in a small group and the use of a slant board as an accommodation (D-Exh. 66 at 8).

The IEP indicated that [Redacted] attended a mainstream nursery school and received SLT twice per week 30 minutes per session in a group of 3 and individual OT twice per week for 30 minutes per session in a 6-day cycle and the use of a slant board as an accommodation (D-Exh. 66 at 8). The IEP indicated that the parent reported that [Redacted] had made a lot of progress in speech, but he still had difficulty with fine motor skills involved in holding a pencil and cutting (D-Exh. 66 at 2). The SLP reported that [Redacted]'s receptive and expressive language were " [Redacted] " and that [Redacted] had " [Redacted] " but [Redacted] " [Redacted] " (D-Exh. 66 at 4). The IEP indicated that the parents reported no cognitive or academic needs and that his social and emotional needs were within age expectations (D-Exh. 66 at 5).

The IEP listed 4 OT goals to hold a pencil for 3 minutes, to use basic cutting skills, to trace lines, shapes and letters and to build, duplicate and reproduce designs from visual models with 80% accuracy over 4 weeks (D-Exh. 66 at 7).

For the 2020-2021 sy, on March 26, 2020, the District’s CSE classified [Redacted] with an OHI and recommended that for 1^st grade that he be placed in a 10-month program in a general education classroom at PES and receive OT twice per week for 30 minutes per session in a 6-day cycle in a small group. The IEP indicated that [Redacted] was diagnosed with some convergence insufficiencies and was seen by an optometrist for vision therapy (D-Exh. 2 at 6).

The IEP noted that in reading [Redacted] had difficulty segmenting words independently and had difficulty distinguishing rhymes with accuracy (Id.).

The IEP indicated that in writing [Redacted] was "[Redacted]" and the social development indicated that [Redacted] had "cried on a daily basis" in the beginning of the sy and "[Redacted]” but the IEP noted that "[Redacted]"(D-Exh. 2 at 5).

For physical development, the IEP indicated that an audiological evaluation was conducted in 2017 and his hearing was in normal limits however, [Redacted] was diagnosed with convergence insufficiencies and was seen by an optometrist for vision therapy (D-Exh. 2 at 5-6).

The IEP indicated that [Redacted] had significant delays in motor skills but had that exhibited progress in the general education setting and did not require a BIP (D-Exh. 2 at 6).

The IEP listed 3 OT goals: to cut simple straight- and curved-line shapes; to write 1 sentence with time-down formation and to copy 1 sentence with differentiation between tall, short and diving letters with 80% accuracy over 4 weeks (D-Exh. 2 at 7).

The Progress Reports for Goals and Objectives for 2019-2020 sy, indicated that [Redacted] achieved the motor skills goals to correctly hold a pencil for 2 minutes, and achieved the goal to use basis cutting skills, and achieved the goal to trace lines, shapes and letters with 1/4 of an inch to assist in accuracy in letter formation and achieved the goal to build, duplicate and reproduce designs from visual models with accuracy across a variety of academic settings (D-Exhs. 4 at 1-2;6 at 1-2).

On September 16, 2020, an Educational Re-Evaluation was conducted by the District's School Psychologist on [Redacted] when he was [Redacted] years and [Redacted] months (D-Exh. 19). The Psychologist reviewed the prior test results in May 2018, and found average cognition scores based on the WPPSI. The WPSSI scores were as follows: his verbal comprehension score was 105, (in the 47^th percentile), his visual spatial score was 91, (in the 27^th percentile), and his full-scale score was 99, (in the 47^th percentile), in the average range (D-Exh. 19 at 1).

The School Psychologist assessed [Redacted] and found that he functioned in the average range of intellectual functioning with a full-scale score of 96 on the Wechsler Intelligence Scale for Children, Fourth Edition ("WISC-IV"). She reported the following scores: full scale score of 101, (in the in 53^td percentile), in the average range; his verbal comprehension score was 108, (in the 70^th percentile); his visual spatial score was 97, (in the 42^nd percentile); his fluid reasoning score was 94, (in 34^th percentile); his working memory score was 91, (in 27^th percentile) and processing speed score was 100, (in the 50^th percentile), and all scores were in the average range (D-Exh. 19 at 5). The School Psychologist noted that [Redacted] was classified at OHI and had received OT services. The evaluation was conducted to determine if [Redacted] continued to meet the eligibility as a student was a disability (Id.).

By e-mail dated December 1, 2020 to the 1^st grade teacher, [Redacted], the Parent indicated that the Student's vision therapy was helping him to learn the left from the right on a page and not write certain letters "b" and "d" backwards (D-Exh. 14).

The Progress Report for Goals and Objectives dated December 3, 2020, indicated that [Redacted] achieved the goal to decode consonant, vowel, consonant ("CVC") words with accuracy 3 out of 4 trials over a 2-week period. He achieved the goal to determine the main idea of the story. He achieved the goal to orally rehearse a sentence and copy that sentence accurately and achieved the goal to verbally identify situations where he experienced anxiety and identified strategies to deal with his anxiety. He achieved the goal to cut simple straight- and curved-line shapes. He achieved the goal to write 1 sentence with top-down formation, spacing and adherence to baseline. He achieved the goal to copy 1 sentence with differentiation between tall, short, and diving letters and adherence to baseline to strengthen visual scanning and shifting with 80 % accuracy across academic setting (D-Exh. 23 at 2-3).

The District had conducted an Updated Social History dated December 9, 2020, when [Redacted] was [Redacted] years old and [Redacted] months. The reporter indicated that [Redacted] had graduated out of vision therapy, had school anxiety, difficulty separating and that COVID caused significant restrictions on social interactions with peers (D-Exh. 20 at 1). The reporter indicated that [Redacted] had attended a general education mainstream class (D-Exh. 20 at 2).

The District had conducted an OT Re-Evaluation dated February 10, 2021, when [Redacted] was 7 years and 1 month. The OT evaluator indicated that [Redacted] participated in visual therapy outside of school and received OT twice per cycle in small group (D-Exh. 21 at 1). The OT evaluator used the Beery VMI and the WOLD Sentence Copy Test (Id.). The OT evaluator found that [Redacted] had a low average score of 78, (in the 7^th percentile) in motor coordination and had an average score in visual perception of 104, (in the 61^st percentile). His Beery VMI score indicated average visual motor integration and visual perception skills (D-Exh. 21 at 4). The WOLD score indicated that [Redacted]'s rate of copying was within age expectations, but he "demonstrated difficulties shifting his gaze from the top of the page to the bottom and often required multiple gaze shifts for single letter" (D-Exh. 21 at 3).

On March 3, 2021, The District conducted an Educational Evaluation by the 1^st grade special education teacher, who assessed [Redacted]'s educational ability and found that his academic scores were low average unlike his cognitive score on prior testing on WPPSI and WISC-V. The special education teacher used the Kaufman Test of Educational Achievement, 3^rd Edition ("KTEA-3") to assess his skills and found that he did not put effort into the test (D-Exh. 22 at 1). She found that [Redacted] demonstrated weakness in reading and math and she reported the following scores: the letter and word recognition score was 80, in the 9^thpercentile), in the low average range; the reading comprehension score was 69, (in the 2^nd percentile, in the very low range; the math concepts and applications score was 83, (in the 13^th percentile), in the below average range; the math computation score was 87, (in the 19^th percentile), in the below average range; the written expression score was 71, (in the 3^rd percentile), in the low range of ability; the spelling score was 81, (in the 10^th percentile), in the below average range (D-Exh. 22 at 2-4).

By email dated March 15, 2021, the District's Special Education Teacher and Interim Supervisor of Elementary Education wrote to the parents to state that she understood their frustration with how [Redacted]'s year was going and that [Redacted] would receive Resource Room immediately and that paperwork would be completed to add Receive Room to the IEP (D-Exh. 29).

For the 2021-2022 sy, on March 15, 2021, the District’s CSE classified [Redacted] with an OHI and recommended that for 2^nd grade he be placed in a 10-month program in a general education classroom at [Redacted] (D-Exh. 27 at 1).

The academic achievement section of the IEP indicated that he was below grade level in reading at a Fountas and Pinnell ("F&P") level D. In math and writing [Redacted] was approaching expectations (D-Exh. 27 at 3). The social development section indicated that [Redacted] would perseverate over things and ask to see the nurse if something bothers him and that his " [Redacted] " (D-Exh. 27 at 4).

The IEP recommended resource room 5 times for 45 minutes per session in a 6-day cycle in the resource room and related services of OT in a small group for 30 minutes twice in a 6-day cycle in a therapy room; individual counseling once in a 6-day cycle in the counselor's office (Id.). The IEP contained 2 reading goals:(1) to use an explicit taught strategy to decode words on an instructional level 3 out of 4 times and (2) to answer "W" questions 3 out of 4 trials (D-Exh. 27 at 6). The IEP had 2 social/emotional/behavior goals: (1) to make positive statements about his qualities and (2) to verbally identify situations where he experienced anxiety (Id). The IEP had 3 motor skills goals: (1) to improve visual spatial skills to write 2 sentences with appropriate spacing between words, (2) to complete visual scanning and tracking to improve visual endurance and attention and (3) to improve fine motor precisions skills to complete mazes and connect dots 4 out of 5 trials (D-Exh. 27 at 6-7). The IEP indicated that [Redacted] received accommodations of the use of a slant board, daily, the use of a graphic organizer daily, seating close to the instructor (Id.).

The Prior Written Notice ("PWN") dated March 21, 2021, indicated that individual counseling once in a 6-day cycle and Resource Room 5 times for 45 minutes per session in a 6-day cycle were added to the IEP and annual goals were also added as follows: in reading: to decode 10 CVC from a list with accuracy (3/4 trials over 2 weeks) and in writing: to orally rehearse one sentence with a teacher and copy that sentence accurately (2 consecutive occasions over 4 weeks) and a social / emotional goal to verbally identify situations where he experiences anxiety and identify strategies to deal with his anxiety (75% on 4 consecutive occasions) (D-Exh. 30).

The PWN to amend the IEP without a Committee meeting dated March 24, 2023, added Resource Room 5 times for 45-minute sessions per 6-day cycle and counseling once for 30 minutes per 6-day cycle and reading, writing and counseling goals as well as classroom accommodations of special seating close to the source of instruction, the use of a graphic organizer for writing and the use of a slant board (D-Exh. 31).

The IEP amendment consent form was signed by the Parent on March 24, 2021 (D-Exh. 32).

For the 2021-2022 sy, on March 24, 2021, the District’s CSE classified [Redacted] with an OHI and recommended that from March 25, 2021 to June 25, 2021, he be placed in a 10-month program in a general education classroom at PES and recommended Resource Room 5 times for 45 minutes per session in a 6-day cycle in the Resource Room and related services of OT twice 30 minutes in a 6-day cycle in a therapy room and individual counseling once for 30 minutes in a 6-day cycle in the counselor's office (D-Exh. 33 at 1).

The IEP indicated that per the fall Measuring Academic Progress ("MAP") reading assessment, a computer program that measured progress 3 times per year (T.402), [Redacted]'s results decreased in Reading from a score of 144 in the fall, (in the 59^th percentile) to a score of 146 in the winter, (in the 34^th percentile). His fall MAP math scores was 146, (in the 63^rd percentile) matched his score of 156 in the winter, (in the 63^rd percentile) (D-Exh. 33 at 4-5).

The IEP contained 2 reading goals: when given a list of 10 CVC words, the student will decode them with accuracy and to determine the main idea of a story on his instructional level and identify two supporting details (D-Exh. 33 at 7).

The IEP had a single social/emotional/behavior goal to verbally identify situations where he experiences anxiety and identify strategies to deal with his anxiety and 3 single motor skills goals:(1) to cut simple straight and curved line shapes, (2) to write 1 sentence with top-down formation spacing and adherence to baseline and (3) to copy 1 sentence with differentiation between tall, short and diving letters, spacing and adherence to baseline to strengthen visual scanning and shifting skills with 80% accuracy across academic settings( D-Exh. 33 at 7-8). The IEP indicated that [Redacted] received accommodations of the use of a slant board, daily, the use of a graphic organizer daily, and seating close to the instructor (Id.).

The PWN dated March 26, 2021, indicated that per the signed agreement the IEP was amended without an IEP meeting with the following: added resource room 5 times for 45 minutes per sessions per 6-day cycle, added counseling once for 30 minutes per 6-day cycle and added reading, writing and counseling goals as well as classroom accommodations of special seating close to the source of instruction, use of a graphic organizer for writing and use of a slant board (D-Exh. 34).

The Progress Monitoring report dated June 21, 2021 indicated that [Redacted] met the goals in decoding 10 CVC words from May 10, 2021 to May 21, 2021 and June 7, 2021 to June 21, 2021 and met the goal to determine the main idea of the story on Level D in F & P Guided Reading book on April 7 and 20, 2021 and May 6, 2021 and met the writing goal to copy a sentence on a dry erase board on April 7, 2021 and May 6, 2021 (D-Exh. 35 at 1-2).

The Supervisor of Elementary Special Education, Redacted], e-mailed the Parent to update her on [Redacted]'s reading level progress from a Level D to a Level G in F&P dated May 6, 2021 (D-Exh. 38).

On July 6, 2021, the Director of Special Education indicated [Redacted]'s progress on his IEP goals for the 3 marking periods and [Redacted] achieved the reading, writing, social / emotional goals and motor goals (D-Exh. 40).

The PWN from the Director of Special Education and Support Services dated July 14, 2021 indicated that the IEP was mailed to the Parents (D-Exh. 42).

The Grade 1 report card from [Redacted] provided a comment section that [Redacted] " [Redacted] '"(P-Exh. 25 at 2).

The 10-Day Notice ("TDN") of Unilateral Placement dated August 10, 2021 with a stamp date of August 12, 2021, from the parents to the Director of Special Education and Support Services stated that they had received the IEP for the 2021-2022 sy, on July 17, 2021. The parents maintained that the District failed to offer a FAPE and that they would consider placing [Redacted] at [Redacted] for the 2021-2022 sy and seek tuition reimbursement (D-Exh. 43 at 1). The parents indicated that [Redacted] was eligible for CPSE services with OT and SLT, but for his Kindergarten year, the CSE mandated only OT and no special education services. They stressed that his Kindergarten year at [Redacted] was not successful as he had increasing difficulty in mastering basic reading skills and had avoided classroom demands by [Redacted] and that his RIT testing declined from 59^th percentile in fall to 34^th percentile in the winter (D-Exh. 43 at 1).

The parents indicated that his 1^st grade year was also not successful as his 1^st grade teacher noted that his reading deficiencies on the F&P level B and was below expectations and yet no help was offered (D-Exh. 43 at 2). The parents challenged the psychological evaluation that was not completed until 6 months after the initial request and noted that no assessment of his emotional functioning or behavioral assessment was conducted to examine his avoidance behavior. The parents maintained that the Response to Intervention ("RTI") determined that reading instruction should be an uninterrupted 90-minutes block daily, yet Resource Room was 45 minutes daily and their request for 12-months of educational services was denied because the District did not have a program to meet their son's unique needs. They challenged the IEP goals in the amended March 2021 IEP and noted that achieving the reading goals did not place [Redacted] near 2^nd grade NYS standards and that the IEP had failed to meet [Redacted]'s needs in mathematics without mathematic goals as the Educational Evaluation had indicated that [Redacted] was in the 13^th percentile in the math computation score and in the 19^th percentile in Concepts and Applications (D-Exh. 43 at 3).

On August 26, 2021, the parents wrote to the Director of Special Education and Support Services to state that the District failed to offer a FAPE and the IEP was grossly inadequate and so they placed [Redacted] at [Redacted], a school that "specializes in teaching children with language-based learning differences such as dyslexia" for the 2021-2022 sy at public expense (D-Exh. 45).

On August 30, 2021, the Director of Special Education and Support Services wrote to the parents and maintained that the District offered a program reasonable calculated to offer [Redacted] with educational benefits and an IEP meeting would be scheduled to meet their concerns (D-Exh. 46).

On August 31, 2021, the Director of Special Education and Support Services wrote to the parents to schedule a meeting on September 15, 2021.

For the 2021-2022 sy, on September 15, 2021, the District’s CSE classified [Redacted] with LD and recommended that for the 2^nd grade, he be placed in a 10-month program in a general education classroom at [Redacted] and recommended Resource Room 5 times for 45 minutes in a 6-day cycle in the Resource Room in a group of 5 and related services of OT 2 times for 30 minutes per session in a 6-day cycle in a therapy room in a small group and individual counseling once for 30 minutes in a 6-day cycle in the counselor's office and (D-Exh. 48 at 1,8).

The IEP meeting information indicated that the parents felt that the District had failed their son and that [Redacted] could not read and that Resource Room was not sufficient to meet the NYS mandate of 90 minutes of Language Arts instruction and that [Redacted] had received support from RTI in the 2020-2021 sy until March 2021when Resource Room commenced (D-Exh. 48 at 2). The IEP indicated that the parents were concerned with the Resource Room instruction and the Resource Room teacher (Id.) The IEP indicated that the CSE team considered [Redacted] too smart for Integrated co-teacher ("ICT") class and deserved to be in a general education class and that the parents disagreed with the program (Id.).

The annual goals contained 2 reading goals:(1) to use an explicitly taught strategy to decode words on his instructional level (3 out of 4 trials over 2 weeks) and (2) to answer W questions (who, what, where, when, why) after reading a text on his instruction level correctly (3 out of 4 trials over 4 weeks) and 2 writing goals: (1) to orally rehearse his ideas with a teacher and (2) to write 3 sentences with proper punctuation and capitalization (3 out of 4 trials over 4 weeks) and (2) to demonstrate the command of the conventions of standard English spelling by spelling words with consonant blends, digraphs and common vowel patterns by the end of the marking period (D-Exh. 48 at 8). The math goal was to represent and solve 1-step addition and subtraction problems with 80 % success on 3 consecutive occasions by the end of the marking period. There were 2 social/emotional goals: (1) to make 3 positive statements about his qualities and accomplishments with 75 % success on 3 consecutive occasions by the end of the marking period and (2) to verbally identify situations where he experiences anxiety and identify strategies to deal with his anxiety (Id.). There were 3 motor skills goals: (1) to improve visual spatial skills to write 2 sentences with appropriate spacing between words, (2) to complete visual scanning and tracking to improve visual endurance and attention and (3) to improve fine motor precisions skills to complete mazes and connect dots 4 out of 5 trials over 4 weeks (Id.).

The IEP indicated that [Redacted] received accommodations of the use of a slant board and graphic organizer daily, and seating close to the instructor daily (D-Exh. 48 at 9).

The PWN dated September 21, 2021, indicated that [Redacted] was classified as a student with a disability and entitled receive special education service (D-Exh. 49).

On October 18, 2021, stamp dated received on October 20, 2021, the parents wrote to the Director of Special Education and Support Services in response to the District's request to evaluate [Redacted] by a behavior observation and stated that the evaluation should have been conducted last year and the request was not timely (D-Exh. 50 at 1).

On October 18, 2021, stamp dated October 20, 2021, the parents wrote to the Director of Special Education and Support Services to convey their disagreement with the September 15, 2021 IEP and indicated that there was misrepresentation in that the parent raised his voice during the IEP conducted on zoom as the parent did not raise his voice and was not aggressive (D-Exh. 51 at 2). The parents stated that there was no discussion of an ICT class and no member of the team knew [Redacted]'s explicit instructional level as his current teachers at [Redacted] were not invited to the CSE meeting. The parents stated that the CSE members had indicated that the March 15, 2021 IEP was appropriate and did not need revision and the recommendations of the September 15, 2021 IEP were pre-determined and nothing that the parents said would have had any impact on the outcome (D-Exh. 51 at 2).

On December 8, 2021, the District's CSE form for students placed in non-public school indicated the parent asserted that because there was no FAPE the parent placed her son in [Redacted] for the 3^rd grade for the 2022-2023 sy (D-Exh. 53 at 1).

On February 17, 2022, the Director of Special Education and Support Services wrote to the parents to schedule a Subcommittee on Special Education on May 9, 2022 (D-Exh. 56 at 1). The Meeting Notice dated February 17, 2022, indicated that the meeting was an annual review (D-Exh. 57 at 1) and the Meeting Notice dated April 28, 2022, indicated that he CSE was to meet on May 27, 2022 (D-Exh. 58 at 1) and was rescheduled to June 3, 2022 (D-Exh. 60 at 1).

[Redacted], Ph.D., a Neuropsychologist, conducted a Neuropsychological Evaluation on April 20, 21 and 23, 2022, when [Redacted] was 8 years and 3 months in 2^nd grade at [Redacted] (D-Exh. 55 at 1). She reviewed [Redacted]'s difficulties in fine motor skills and speech articulation difficulties in preschool that continued to date (Id.). She recapped the medical history and noted vision therapy was ongoing and improved [Redacted]'s eye tracking and that [Redacted] had received special education services since preschool of OT and SLT in the District's CPSE. She noted that [Redacted] had attended Kindergarten in [Redacted] with OT and that SLT was discontinued as his articulation was in the average range (D-Exh. 55 at 2). She indicated that [Redacted]'s Kindergarten teacher had reported that [Redacted] was anxious and was behind in reading and was to receive reading intervention just prior to COVID, when all in-person schooling was stopped (D-Exh. 55 at 3). She related that [Redacted] had reading difficulty in the 1^st grade level as he was a level D on F&P, at a beginning 1^st grade level at the end of the 1^st grade year (Id.). She indicated that [Redacted] had attended [Redacted] in the summer before 2^nd grade. She reported that per the IOWA Language Arts assessment, a standardized test, [Redacted] had achieved following scores: vocabulary score was in the 5^th percentile; reading was in 1^st percentile and was in the 16^th in computation and 25^th percentile for mathematics (D-Exh. 55 at 4).

She used the WISC-IV to assess cognitive functioning and [Redacted] obtained the following scores: verbal comprehension score was 121, in the superior range of functioning; perceptual reasoning score was 100, in the average range; working memory score was 85, in the low average range and processing speed score was 100, in the average range with a full-scale IQ score of 104, in the average range (D- Exh. 55 at 17). The achievement skills were assessed and [Redacted] scored on the Woodcock-Johnson Tests of Academic Achievement, 4^th Edition ("WJ-IV") as followed: letter-word identification score of 76, (in the 5^th percentile) with a grade equivalent ("GE") of 1.1; passage comprehension score of 71, (in the 4^th percentile) with a GE of mid 1.1; spelling score of 82, (in the 12^thpercentile) with a GE 1.4, applied problems score of 87, GE 1.8; calculation score of 92, GE 2.3, writing sample score of 98, GE 2.5(D-Exh. 55 at 18).

She found that [Redacted] was highly distracted and needed a large amount of redirection and that his parents and teacher had attributed " [Redacted] "(D-Exh. 55 at 11). She diagnosed [Redacted] with Generalized Anxiety Disorder. She observed difficulties with his articulating various sounds and diagnosed [Redacted] with a Speech Sound Disorder and observed that [Redacted] presented with significant weakness in language-based learning and diagnosed [Redacted] with a Special Learning Disorder in Reading (Dyslexia) as well as a Specific Learning Disorder in Written Expression and diagnosed [Redacted] with Developmental Coordination Disorder as he presented with " [Redacted] " (D-Exh. 55 at 13). She observed that [Redacted] “ [Redacted] " (D-Exh. 55 at 14).

On the Connors' Parents Rating Scale-3, she indicated that [Redacted] was at clinical levels for peer relations and was at the borderline for learning problems / executive functioning and peer relations on the Connors' Teacher Rating Scale-3(D-Exh. 55 at 19).

She concluded that based on [Redacted]'s LD profile that he was correctly placed at [Redacted] as she recommended "continued, intensive remediation" in " [Redacted] " (D-Exh. 55 at 14).

On May 26, 2022, [Redacted] was evaluated by [Redacted], the SLP, who conducted an oral sensory-motor feeding evaluation. She found that [Redacted] presented with decreased muscle tone peri and intra orally, reduced functional upper lip mobility and reduced ability to contract his cheeks and "evidenced a moderate oral-motor / speech disorder secondary to physiological dysfunction of oral mechanism" (P-Exh. M at 3) and recommended oral motor therapy for muscle strengthening (P-Exh. M at 4).

For the 2022-2023 sy, on May 27, 2022, the District’s CSE classified [Redacted] with LD and recommended that for 3^rd grade he be placed in a 10-month program in an ICT classroom at PES and recommended related services of OT for 30 minutes twice in a 6-day cycle in a therapy room in a small group; individual counseling once in a 6-day cycle in the counselor's office (D-Exh. 61 at 1). The IEP further required checks for understanding, refocusing and redirection, allowing breaks, assignments to be broken down in smaller parts, the use of a slant board, graphic organizer, special seating arrangements preview/review of materials, directions read and repeat and the allowance of time to process/formulate responses and directions and task steps provided in writing and content area materials read aloud (D-Exh. 61 at 12-13). [Redacted] was to receive testing accommodations including: directions read to student, multiple-choice responses read to [Redacted], task passages, questions, items and multiple choices read to [Redacted] and extended time (1.5) and a human reader (D-Exh. 61 at 14).

The IEP indicated that [Redacted] attended private school in a class of 6 for reading and was at Book E in F&P and scored in the below average range on the Letter & Word Recognition subtest and within the low range on the Written Expression subtest based on KTEA-III testing (D-Exh. 61 at 7). The IEP contained 4 reading goals: (1) to read with accuracy a list of 10 irregular words (3 out of 4 trials over 4 weeks); (2) to read an instructional text orally with accuracy, appropriate rate and expression at 80 words per minute with 95% accuracy(3 out of 4 trials over 4 weeks); (3) to answer 3 inferential comprehension accurately after reading a text on his instructional level(3 out of 4 trials over 4 weeks) and (4) to utilize a decoding strategy to read 10 words with digraphs, blends and suffixes accurately (3 out of 4 trials) by the end of marking period(Id.).

The IEP contained 2 writing goals:(1) to write 3-5 sentences with proper capitalization, punctuation, and spelling and (2) to demonstrate the command of the conventions of standard English and 2 mathematics goals: (1) to demonstrate knowledge of regrouping with addition and subtraction and (2) to solve 1 step addition and subtraction story problems (3 out of 4 trials) by the end of marking period (D-Exh. 61 at 11).

The IEP contained 4 motor skills goals:(1) to improve visual spatial skills to write 2 sentences with appropriate spacing between words; (2) to improve visual scanning and visual attention shifting in order to near point copy 2-3 sentences; (3) to complete fine motor precision activities with a maximum of 1 verbal or visual prompt and (4) to use correct placement of fingers on the keyboard for 5 minutes in order to become more fluent with his typing skills (Id.).

By e-mail dated June 14, 2022, the parents provide the TND to the District that [Redacted] was denied a FAPE and they intended to place [Redacted] at [Redacted] (D-Exh. 62 at 1).

On June 14, 2022, the Director of Special Education and Support Services wrote to the parents to state that the District offered a program that was reasonably calculated to produce an educational benefit and offered [Redacted] a FAPE (D-Exh. 63 at 1).

On June 15, 2022, [Redacted] Tuition Statement indicated that the family paid $66,025 and zero payment was due (P-Exh. S at 1).

On the IOWA test for the 2021-2022 sy from [Redacted] dated September 9, 2022, [Redacted] scored in the 5^th percentile in vocabulary and in the 1^st percentile in reading and in the 16^th percentile in math (P-Exh. O at 1). The [Redacted] Coding Test: Reading I dated September 9, 2021, [Redacted] was able to read 30 CVC words and correctly spell 80 CVC words and on the [Redacted] Coding Test: Reading I dated April 19, 2021, [Redacted] was able to read 60 CVC words (P-Exh. O at 4). On the [Redacted] Coding Test: Spelling dated May 23, 2022, [Redacted] was able to spell 9 CVC words (Id.).

The 2021-2022 sy Quarter 1 Progress Report indicated that [Redacted] demonstrated progress in applying decoding and spelling strategies and demonstrated progress in making logical inferences and summarizing information and needed additional practice in applying decoding strategies and needed to practice in reading comprehension and written expression (P-Exh. H at 1-2).

On the IOWA test for the 2021-2022 sy dated May 2, 2022, [Redacted] scored in the 5^th percentile in vocabulary and in the 2^nd percentile in reading and in the 24^th percentile in math (P-Exh. O at 4)

The 2021-2022 sy Quarter 4 Progress Report indicated that [Redacted] demonstrated progress in reading fluently, reading comprehension and written expression and was approaching proficiency in producing a cohesive paragraph (P-Exh. Q at 2).

On November 16, 2022, [Redacted] Tuition Statement indicated that the family paid $36,787.50 and the balance due was $31,787.50 to a total tuition of $68,575.00(P-Exh. T).

The 2022-2023 sy Quarter 1 Progress Report indicated that [Redacted] was proficient in applying decoding strategies and was approaching proficiency in applying spelling strategies and was proficient in all components of reading comprehension except for summarizing information and was approaching proficiency in written expression and demonstrated progress in producing a cohesive paragraph (P-Exh. U at 2).

ISSUES

The District maintained that it had provided [Redacted] with a FAPE in the 2020-2021 sy as it had recommended that [Redacted] who was classified as OHI be placed in an mainstream program and receive OT in a group twice in a 6-day cycle for 30 minutes in the IEP dated March 26, 2020 (D-Exh. 2 at 1). The District maintained it provided [Redacted] with a FAPE in the 2020-2021 sy in the amended IEP dated March 24, 2021 as it had recommended Resource Room in a small group of 5 for 45 minutes per period for 5 days in a 6 cycle in the Resource Room; OT in a small group twice in a 6-day cycle for 30 minutes per session in a therapy room and counseling in a small group once for 30 minutes in a small group a 6-day cycle in a counselor's officer therapy room (D- Exh. 33 at 1).

The District maintained that it had provided [Redacted] with a FAPE for the 2021-2022 sy as it had recommended that [Redacted] who was classified as LD receive Resource Room in a small group of 5 for 45 minutes per period for 5 days in a 6 cycle in the Resource Room; OT in a small group twice in a 6-day cycle for 30 minutes per session in a therapy room and individual counseling once for 30 minutes in a 6-day cycle in a counselor's officer in the IEP dated September 15, 2021 (D-Exh. 49).

The District maintained that it had provided [Redacted] with a FAPE for the 2022-2023 sy as it had recommended that [Redacted] who was classified as LD be placed in an ICT class and receive OT twice for 30 minutes in a 6-day cycle in a small group in a therapy room and individual counseling once in a 6-day cycle for 30 minutes in the counselor's office in the IEP dated May 27, 2023 (D-Exh. 61). The parents disagreed with the District's program and placement and have placed [Redacted] at [Redacted] and request tuition reimbursement for the 2021-2022 and 2022-2023 sys and compensation education services for the lack of a FAPE for the 2020-2021 sy (P-Exh. A at 12).

FINDINGS OF FACT

The following is based upon credible testimony and documentary evidence:

THE DISTRICT'S CASE

The District's case was presented in the testimony of the 1^st grade Regular Education Teacher, [Redacted] , [Redacted], the OT Provider, [Redacted], the Special Education Teacher, [Redacted], the Interim Director of special education and [Redacted], the SLP.

The 1^st grade teacher, employed by the District for 15 years and a NYS certified and licensed regular education teacher for 1^st through 6^th grades, testified that she was trained in Foundations, a guided reading instruction to teach sounds at a 1-day seminar (T.55-56;60;105;172). She stated that she had met [Redacted] over the summer of 2020 as his Kindergarten teacher had opined that he would have a difficult transition to 1^stgrade as COVID had impacted his Kindergarten year when school shut down in March 2020 and that he missed 4 months of in person instruction from March 2020 to June 2020 (T.60). She stated that in September 2020, there were 8 or 9 children in her class at PES attending in person 2 days per week and 2 days per week on zoom on a hybrid schedule as the approximately 20 students in her class alternated days in person and zoom instruction (T.66;70). She stressed the [Redacted] was an [Redacted] (T.74). She opined that allowing him to take deep breaths or go the bathroom alleviated his anxiety (T.76). She recalled that [Redacted] had received a surgery to [Redacted] in December 2020 (T.77). She explained that she left 1^st grade in mid-April on a maternity leave and another regular education teacher continued to teach 1^st grade for the remainder of the 2020-2021 sy (T.81).

When questioned about the report card (D-Exh. 25), the 1^st grade teacher indicated that [Redacted] was not making as much progress as he should as expectations increased over the year (T.84). She explained that on the MAP test, a computer-generated assessment over the course of the year, his scores had decreased and that [Redacted] was below grade level in reading. She recommended that [Redacted] receive building level support in February 2021, or RIT from the special education teacher for check-ins for 15 minutes in the morning and 15 minutes in the afternoon and support services of a single reading period per week in a small group of 3 (T.98;100;117;124;126; 198).

She reviewed her e-mail dated February 21, 2021, (D-Exh. 18) to alert the parent that [Redacted] would receive the services of the Resource Room teacher, who was the special education teacher, and that recalled that she had participated in the March 15, 2021 IEP meeting (D-Exh. 27) and noted that the Student was below grade level in reading based on the MAP reading assessment and KTEA scores (T.132). She reviewed the reading, writing and social/emotional goals and opined that the goals were appropriate (137). She recalled that for the 2021-2022 sy, the special education service of Resource room was added for 5 sessions per week for 45 minutes per session in 6-day cycle and that individual counseling once per 6-day cycle was added and that OT remained the same (T.144-148). She recalled that she had participated in the September 16, 2021 IEP (D-Exh. 48) and that the team changed the classification from OHI to LD (T.154).

On cross she acknowledged that [Redacted] had deficits in reading as he was reading at an early Kindergarten level at the beginning of the 1^st grade (T.188) and that per the MAP testing in reading [Redacted] dropped from the 59^th percentile to the 34^th percentile (T.196) and according to the report card (D-Exh. 25) for the 2020-2021 sy [Redacted] fell further behind his peers in reading and spelling and his delay was the reason RTI was started (T.200). She stated that Resource Room was added because he was making less than anticipated progress (T.221). She opined that because [Redacted] had deficits in reading his classification was changed from OHI to LD (T.226).

The OT provider, a holder of a bachelor's of science degree in OT, testified that she was a NYS licensed and board-certified OT (T.272). She stated that she had worked as an OT provider for [Redacted] during Kindergarten for the 2019-2020 sy (T.273). She described [Redacted] as a boy with low muscle tone and stated that she had worked on his grasping and cutting skills (T.278). She related that he had decreased endurance and needed breaks more frequently than his same-age peers and that she developed the goals for the 2020-2021 sy on the March 26, 2020 IEP (D-Exh. 2). She explained that she had worked with [Redacted] in 1^st grade in a hybrid model of in person and zoom instruction and recalled that [Redacted] was more engaged during the in-person OT sessions (T.284).

When questioned as to her formal OT evaluation (D-Exh. 21) on February 10, 2021, she stressed that [Redacted] made some progress, but he still had difficulty with near point copying and letter formation and required scaffolding to cut and write sentences (T.286). She recalled that she had participated in the March 15, 2021 IEP meeting, and had reviewed the motor goals and opined that while he could write letters and shapes he had difficulty with accuracy and refinement (T.295). She opined that [Redacted] would benefit from OT in 2^nd grade, in his areas of needs in visual spatial skills, fine motor precision and visual scanning (T.299).

When questioned as to the results of the Neuropsychological Evaluation, she indicated that [Redacted] had regressed in his ability to open a bathroom stall door (D-Exh. 55 at 5) as his grasp was stronger when she worked with him (T.302). She reviewed her e-mail to the parent on October 9, 2020, regarding [Redacted]'s missing an OT session due to a follow-up eye evaluation to ensure that [Redacted] progressed with his eye scanning and noted that the Neuropsychologist had recommended OT to address a range of motor concerns of fine and gross motor coordination and motor strength. She related that [Redacted] did not offer OT (T.307).

On cross the OT provider stated that she was aware that [Redacted] had vision issues and that she had observed [Redacted]'s difficulties with [Redacted] and that she addressed his issues in Kindergarten during OT sessions (T.323). She acknowledged that she was aware that Resource Room was added to the IEP in March 2021, and that in addition to convergence issues that [Redacted] reversed his letters and that she had worked with him during OT on his fine motor and visual motor and bilateral integration as she was the OT provider for Kindergarten and 1^st grade for 2 OT sessions per week for 30 minutes per session (T.330-333;335). She stated that she provided the classroom general education teachers and the Resource Room teacher with ideas to address his deficits with fine motor skills and visual motor skills in terms of his writing (T.338). She acknowledged that when she administered the WOLD test in her February 2021 evaluation, she found that his copying rate fell below a standard deviation (T.344). She was unable to explain why the March 15, 2021 IEP indicated that [Redacted] was approaching grade level expectations (D-Exh. 27 at 4), yet he scored in the 3^rd percentile in the March 2021 Education Evaluation in written expression score, in the low range of ability (D-Exh. 22 at 2). She opined that the low score was not an accurate representation of what [Redacted] could do (T.347). She stated that she was participant of the March 15, 2021 IEP meeting and that Resource Room and counseling were added, but she was unsure why (T.349). She stated that the purpose of OT was to work on motor and visual motor skills and that the general and special education teachers would work on the writing component of the IEP in terms of punctuation (T.361;366), and that she consulted with [Redacted]'s teachers and provided highlighted paper with top and bottom lines (T.367).

The Special Education Teacher, a holder of a Master's degree in education, with a certificate to teach 1^st grade through 2^nd grade for students with disabilities and 1 through 6 in childhood education and employed by the District for the past 7 years, stated that she had evaluated students for the District and had attended an official Wilson training through BOCES (T.378). She stated that she taught small group instruction and had met [Redacted] in 1^st grade with push-in support in November 2020 (T.379). She explained that she did not provide special education support in November, but provided building level support on Tier 1 such as RTI and that she pushed into the classroom with the 1^st grade teacher as a Resource Room teacher to work with a small group of children on phonics instruction and then she recalled that [Redacted] moved on to Tier 2 services with multi-tiered instruction and support with 5 students in [Redacted]'s class for 30 minutes (T.379-384;396). She stated that she conferred with the 1^st grade teacher and recalled that the class was using F&P and that she worked closely with the OT provider, to use the same strategies and that OT tools to address his motor control difficulties in writing (T.387). She explained that she worked on Tier 1 or RTI for 6 weeks and recalled that on February 21, 2021, she pushed into the 1^st grade class to work with [Redacted] during the Readers Workshop (T.407). She stated that she conducted the Educational Evaluation on [Redacted] (P-Exh. D) and that she observed a large amount of testing anxiety (T.392). She explained that her evaluation confirmed that [Redacted] had difficulty with decoding and writing and reading comprehension based on the KTEA scores (T.394). She stated that she had participated in the March 2021 IEP annual review and that she had agreed that [Redacted] needed Resource Room, or Tier 3 support of a special education program taught by a special education teacher for 45 minutes daily in a group of 3 (T.396;404). She explained that the team decided to start Resource Room immediately and not wait for September 2021 (T.206). She recalled that on March 15, 2021, that she e-mailed the parents (D-Exh. 29) to alert them that the team decided not to wait for the 6-week trial period of RTI to end, but that [Redacted] would receive Resource Room immediately (T.407). The Special Education Teacher stated that the IEP was amended to add Resource Room on March 24, 2021 (D-Exh. 33) without the need of a formal IEP meeting (T.408). She reviewed the IEP reading goals to decode and monitored the progress towards meeting the goals (D-Exh. 35). She noted that she had collaborated the OT provider to use the slant board, highlighted paper and graphic organizer to meet the writing goals (T.416) and reported [Redacted]'s progress (D-Exh. 40) confirmed he met the goals (T.417). She recalled that she participated in the September 15, 2021 IEP meeting (D-Exh. 48) and opined that the parent was upset; however, she noted that she had a very good relationship with the parents and that [Redacted] was happy to go to the Resource Room (T.419). She recalled the that the classification was changed to the more appropriate classification (T.421) and that Resource Room was more appropriate than ICT for 2^nd grade at PES (T.422). She recalled that she had attended the May 27, 2022 IEP meeting (D-Exh. 61) for the 3^rd grade and had reviewed the [Redacted] progress report (D-Exh. 54) and opined that [Redacted] did not progress as much at [Redacted] as he had progressed in her Resource Room (T.424). She opined that [Redacted] needed a special education teacher with him throughout the day (T.429;442). She reviewed the modifications of checks for understanding, refocusing and redirection, allowing breaks, assignments to be broken down in smaller parts, a slant board, a graphic organizer, special seating arrangements, a copy of the class notes (D-Exh. 61 at 12-13) and opined that the modifications were appropriate (T.433). She stressed that [Redacted] did not progress at [Redacted] as he was only able to read on P&F on a book E level, on a beginning 1^stgrade level at [Redacted] and noted that he was able to read on book G level, a 2^stgrade level during her Resource Room instruction (T.444).

On cross the Special Education Teacher stated that she received a 3-day training on Wilson program and used the Wilson curriculum to decode, encode as she found that [Redacted] was weak in these areas (T.451;454). She recalled that [Redacted] started on step 1.2 in Wilson in May 2021 and progressed to step 1.3 June 2021 (T.458;470;471). She acknowledged that she was unaware of [Redacted]'s disability (T.461). She explained that she used mostly Wilson with the 5 children in her Resource Room for 45 minutes each day and she used F&P to check if the children were implementing the skills steps from the Wilson instruction (T.465). She explained that she created the reading and writing goals for the September 15, 2021 IEP (D-Exh. 48). She acknowledged that she did not remember a discussion of the steps that [Redacted] reached in the IEP meeting (T.483) and that she split her period with 30 minutes of Wilson instruction and 15 minutes of guided reading or sentence skills (T.485-486;499). She opined that a single writing goal with 15 minutes in a 6-day cycle would address [Redacted]'s writing deficit (T.488). She acknowledged that the mastery of goals was not expected as [Redacted] needed only to master 3 out of 4 trials unlike Wilson instruction that required mastery of skills prior to moving on (T.497). She stated that [Redacted] would not receive Wilson instruction exclusively in the ICT class (T.500).

The Interim Director, a holder of a Master's degree in Elementary and Special Education and a Master's degree in Education Leadership, employed as an Assistant Principal for 4 years and employed by the District for 7 years as the Supervisor for Elementary Special Education, testified that she held her current position for a year (T.508-510). She stated that she possessed a certificate to teach 1^st grade through 2^nd grade for students with disabilities and 1 through 6 in childhood education and was employed by the District as an Interim Director of Special Education with NYS certifications in special education K through 12 and as a School District Leader and had received Wilson training from BOCES for 3 days (T.511;584). She explained that structured literacy was the reading model in the District's elementary school and the Wilson Fundations program was used to systematically teach reading and that the elementary school also used the balanced literacy approach (T.515). She explained that the District offered the Summer Bridges Program for 3.5 hours per day as part of the RTI process to keep children reading over the summer (T.517) and that program was different from extended school year (ESY) of 6 weeks of instruction over the summer for children who had substantial regression after a break in school (T.519). She stated that she was the chair for [Redacted]'s preschool transition meeting and that [Redacted]'s main deficit was motor skills (Id.). She stressed that the March 24, 2021 IEP (D-Exh. 33) governed the conclusion of the 2020-2021 sy. She stated that it was very important to provide special education services to [Redacted] without delay (T.324), rather than having the entire team back to conduct another IEP meeting (T.525) and noted that the parent signed their consent (D-Exh. 32) to the amended IEP (D-Exh. 33). She related that the PWN was sent to the parents on March 25, 2021, to add Resource Room for 5 sessions for a 6-day cycle for 45 minutes per session and to add counseling and reading and writing goals (T.527). She explained that RTI building level support for reading was for general education students and was a 30-minute push-in and pull-out and that RTI was different from Resource Room as Resource Room was taught by a special education teacher for 5 students with an IEP (T.532).

The Interim Director described the September 15, 2021 IEP meeting as challenging with hurtful comments to the District staff and that after a break the team discussed goals and noted that spelling and math goals were added and that the team changed the classification from OHI to LD (T.538). She disagreed with the parents' letter (D-Exh. 51) and recalled the September 2021 meeting and maintained that the ICT class was discussed (T.547-548). She recalled that she chaired the May 27, 2022 IEP meeting (D-Exh. 61) and reviewed the Neuropsychological Evaluation (D-Exh.55) and opined that [Redacted] did not progress at [Redacted] as he had left the District on level G at the middle of 1^st grade level and per [Redacted]'s reports [Redacted] was reading at the beginning of 1^st grade and that he demonstrated math deficits that were not evident when [Redacted] was attending class in the District (T.554). She stressed that the Neuropsychological Evaluation indicated regression in [Redacted]'s fine motor skills in [Redacted] and opined that [Redacted] would [Redacted] had he attended a class in the District because he would have received OT (T.560).

The Interim Director explained that the recommendation of ICT class for the 2022-2023 sy was appropriate as the District capped the special education students in the ICT class to 6 children. She opined that [Redacted] would have received individualized 1:1 instruction with a certified regular education and a certified special education teacher in the ICT class in a class of 20 students and stressed that students learn from their general education peers and the special education teacher would have been able to provide encoding and decoding instruction during the phonic portion of the day (T.562;578;581).

On cross the Interim Director acknowledged that there was a prescribed scripted way to implement Wilson unlike the Resource Room Teacher who used the combination of Wilson and other methodologies to tailor the instruction to meet the needs of the students (T.589;592). She explained that provided the District provided multi-sensory instruction to students in the general education curriculum in addition to Fundations, a Wilson curriculum for phonics and that special education teachers used a variety of multi-sensory techniques and strategies not only those developed by Wilson (T.597). She stressed the special education teacher used Wilson's multi-sensory program and well as Wiley Blevins Phonics, in addition to other instruction to meet [Redacted]'s writing goal (T.599). She maintained that the support of Resource Room with related services was sufficient to address [Redacted]'s deficits of significant delays in reading, writing, emotional and motor skills as noted on the IEP dated September 15, 2021 (D-Exh. 48 at 6) and that there was no need to recommend an ICT class (T.622). She acknowledged that she was unaware of any problem with using F&P assessments for a child with a specific learning disability (T.625) and did not know what context clues could be determined from the text (T.627).

The SLP, a holder of a Bachelor's of science in computer science and a Master's degree in Speech and Language Pathology, employed as a SLP for the District for the past 19 years, testified that she had been a NYS licensed SLP and held certifications from TEACCH and the Completion of Clinical Competence. She stated that she had performed evaluations, collaborated with teachers and provided SLT to students. She further stated that she had attended CSE meeting and provided RTI and assisted children to transition from pre-school to the CSE (T.1159-1160). She stated that while at times pre-school children received SLT, but as they transition to CSE the SLT service were discontinued (T.1161). She stated that she evaluated [Redacted] when he fell into the CSE (D-Exh. 65) and transitioned into Kindergarten. She explained that she had participated in the March12, 2019 IEP (D-Exh. 66) and described [Redacted] as a child with very good language skills and some articulation errors (T.1165). She stated that she had assessed [Redacted]'s receptive and express skills with the CELF Preschool 2 and the Goldman Fristoe Test of Articulation ("Goldman Test") and his articulation score was 102 in the 55^thpercentile (D-Exh. 65 at 5). She noted that she had observed him for over an hour and found that he displayed some fidgety behavior to stop the assessment (T.1169). She stated that based on the CELF scores [Redacted] had average scores as standard score was 104, (in the 61^st percentile) and his receptive composite score of 61, (in the 32^nd percentile) in the average range; his expressive composite score was above average, and his sentence structure subtest score was in the average range (T.1172; D-Exh. 65 at 1-3).

The SLP recalled that she had conducted oral motor assessment and did not observe any structural difficulty that would cause problems and noted that there were no issues with jaw strength or mobility (T.1175). She stated that [Redacted] performed in the average range in the test of articulation in the 55^th percentile and noted some substitutions of a W for R sound and a D for a TH sound (T.1176). She opined that based on her evaluation that [Redacted] did not require SLT to continue in Kindergarten as his receptive and expressive language skills were average as were his articulation was good in context and fair to good outside of context (T.1177-1180). She stated that she had she participated in the April 10, 2019 IEP and that the team had reviewed her SLE. The IEP reported his "difficulty lifting his tongue tip" and also his "excellent improvement with his articulations skills" (T.1183; D-Exh. 66 at 2).

On cross the SLP stated that [Redacted] exhibited the presence of developmental and non-developmental processes (T.1188; D-Exh. 66 at 2). She stated that she did not test [Redacted]'s sound awareness skills but did test his phonological process and had observed that [Redacted] [Redacted] " as he substituted [Redacted] (T.1189). She acknowledged that she did not conduct the test to determine [Redacted]'s ability in phonological awareness or rapid naming (T.1203). She opined that she did not recommend an assessment in phonemic awareness from a special education teacher to be given to [Redacted] (T.1205). She stated that some articulation errors were the result of age and that there was a chart to know when specific sounds should develop (T.1210). She reviewed the March 20, 2020 IEP for 1^st grade and noted that his teacher indicated that [Redacted] struggled with rhyming and had difficulty " [Redacted] " (D-Exh. 2 at 4). She stated that she was not aware of the significance of difficulty with rhyming (T.1218).

THE PARENTS' CASE

The parent; Dr [Redacted], the Pediatric Neuropsychologist and Dr. [Redacted], an expert in language development, language disorders and literacy expert, (hereinafter "expert”) testified in support of the parents' claim for direct funding / reimbursement for the unilateral placement of [Redacted] in the [Redacted]. The parents maintained that the District failed to provide a FAPE for the 2021-2022 and 2022-2023 sys and requested compensation services for the 2020-2021 sy as the CSE failed to offer an appropriate program, appropriate IEPs and failed to complete an appropriate FBA and BIP and failed to develop appropriate goals and related services and did not allow the parents to participate in the development of the IEP and did not offer ESY service and did not offer reasonable accommodations so the District violated Section 504 (P-Exh. A at 9-10).

The Neuropsychologist testified that she had a Ph.D. in psychology and was held board certifications in clinical and pediatric neuropsychology and that her practice consisted of conducting neuropsychological testing for children as young as 3 to college-aged (T.682-683). She stated that she had first evaluated [Redacted] in April 2022 (D-Exh.55), when [Redacted] was completing 2^nd grade at [Redacted] (T.685). She reviewed [Redacted]'s testing from the District in preschool in 2018, when [Redacted] was 4 years old in the social history (P-Exh. CC), the psychological evaluation (P-Exh. DD) and the OT evaluation (P-Exh. EE) and that she had reviewed the testing conducted when [Redacted] was 6 years old in the re-evaluation (D-Exh. 19) dated September 2020, the updated social history (D-Exh. 20) dated December 9, 2020, and the educational evaluation (D-Exh. 21) dated March 3, 2021, and noted that [Redacted] had significant weaknesses in motor functioning and speech (T. 689). She related that some articulation errors were due to his tongue-ties and that subsequent testing indicated that [Redacted] had difficulty with hearing and pronouncing words and a SPL evaluation dated June 4,2018, (P-Exh. W at 5) had indicated that his auditory processing was in the 9^th percentile, yet his total communication score was in the 87^th percentile. She explained that a high average score that indicated that [Redacted] had learned to compensate for his inability to process low level sounds (T.690;704). She stated that the interview with the parents revealed that [Redacted] struggled with anxiety and self-esteem in Kindergarten and in 1^st grade and that the anxiety was exasperated during zoom sessions because he was unable to read (T.692). She explained that she used the WISC-V to assess [Redacted]'s cognition (D-Exh. 55 at 18) and noted that based on the [Redacted]'s WISC-V full scale score of 104, his intelligence was in the average range, but his real strength was his verbal comprehension score of 121, in the superior range that indicated that [Redacted] should be a good learner with language-based instruction (T.708). The Neuropsychologist noted that his average visual spatial and fluid reasoning scores, and low average working average processing speed contrasted with his WJ-IV scores and she found that [Redacted] had a very low score in letter word identification was in the 5^th percentile, his phonological score was 85, (in the 15^th percentile) and his spelling score was 82, (in the 12^th percentile) (T.710). She stressed that the WJ-IV testing indicated that [Redacted] was reading at a much lower level than expected and that he had not learned sight words and that when he tried to decode, he did not have the strategies to do so. She explained that [Redacted] was dyslexic and so he did not have the ability to understand that the act to combine sounds was to read and maintained that he required a lot of systematic multi-sensory intervention (T.711). She stressed that to learn "the code" at [Redacted] taught by slow and systematic instruction in reading, writing and reading comprehension (T.712-713). She noted [Redacted]'s writing score was at the 44^th percentile as he was able to use his verbal ability without a penalty for spelling errors and that his spelling score was in the 12^th percentile (T.714). She explained that [Redacted]'s phonological processing was measured by the Pfeiffer Assessment of Reading and found his ability to decode nonsense words was at the 10^th percentile and his oral word fluency was at the 3^rd percentile (D-Exh. 55 at 18). She stated that [Redacted] tried to decode but was very slow (T.716). She used the Gray Order Reading Tests and found that his reading comprehension score was in the 16^th percentile and explained that at the end of 2^nd grade that [Redacted] was at a reading comprehension level in the beginning of the 1^st grade.

The Neuropsychologist explained that [Redacted]'s score in nonsense decoding or phonological processing was consistent with prior testing as [Redacted] scored in the 10^th percentile in 2022 and that [Redacted] scored in the 9^th percentile in 2018, yet his overall language was a strength and so she diagnosed [Redacted] with dyslexia (T.722). The Feifer Assessment of Reading indicated [Redacted]'s phonemic awareness was at the 10^th percentile, and she noted that it was a consistent score that helped her pinpoint his dyslexia diagnosis and the CELF-5 was used to understand [Redacted]'s broader language processing. She explained that she found that [Redacted] had higher scores in understanding paragraphs, in the 75^th percentile and the recalling sentences score was at the 98^th percentile. She stated that [Redacted] had a strong ability to comprehend verbal information when he did not have to read (T.731; D-Exh.55 at 20).

The Neuropsychologist stressed that many [Redacted] students struggled with the phonological pieces that was the underpinning of their dyslexia (T.732). She stated that the NEPSY-II assessment indicated that [Redacted]'s ability to copy was weak, at the 9^th percentile and she found that his visual motor processing score was similar to the District's testing (T.733). She explained that his social and emotional scores were average except for anxiety as rated by the teacher and parent on the BASC-3 (T.734; D-Exh.55 at 21-22). She concluded that [Redacted] had a very high language IQ and this fact indicated [Redacted] had intact language processing except in the areas of reading and in phonological processing and rapid naming and that these low scores evidenced a learning disability with indications of anxiety. The Neuropsychologist diagnosed [Redacted] with a Learning Disorder in Reading, Dyslexia and a Specific Language Disorder in Written Expression because while his sentences were in the average range his spelling was not. She also diagnosed a Speech Sound Disorder that related to his articulation errors (T.737;741). She opined that she had observed many students at [Redacted] in their classroom as part of her evaluation and found that [Redacted] targeted learning "the code" with fluency to be able to read and that [Redacted]'s needed to learn "the code" to read (T.742). She stressed that to treat [Redacted]'s dyslexia required systematic multi-sensory base approach and that [Redacted] students were required to master "the code" with sufficient fluency before moving to a higher level (T.744-745). She explained that [Redacted] used Preventing Academic Failure ("PAF"), a version of Orton-Gillingham ("O-G") to read text for comprehension and fluency (T.746) and that [Redacted] tracked their students' progress on mastering "the code" and that she had observed that over time children at [Redacted] learned to read and spell as evidenced when reevaluated her clients after a year at [Redacted] (T.758). The Neuropsychologist stressed that as long as there was a fully systematic, phonics-based program with intensity and repetition and as long as progress was monitored to ensure that students would not move past a lesson until they have mastered it, dyslexia was treatable (T.759). She stated that she participated in the May 27, 2022 IEP meeting (D-Exh. 51) and she explained the results of her testing and recalled that she had raised concerns with the recommended program with the size of the ICT class with 20 students and 2 teachers and recalled that she was concerned with the District's methodology and intervention for reading (T.762-763). She recalled that the use of a Wilson program was mentioned, but she did not remember an explanation of how the Wilson program would be administered (T.763). She opined that [Redacted] required a reading pull-out intervention to treat his dyslexia (T.766) in a small group of children on the same reading level as [Redacted]'s level to systematically go through the Wilson system with the same intensity in order for [Redacted] to succeed (Id.).

The Neuropsychologist reviewed the goals from the May 27, 2022 IEP and opined that the goals did not equate to a systematic program to remediate the dyslexia. She opined that the criteria of measuring progress 3 out 4 trials over 4 weeks was not recommended to remediate dyslexia. She explained that the Wilson program systematically and consistently was measured by PAF that checked where students were in their ability to master "the code" and that the IEP reading goals were only helpful for a student who was able to learn to read naturally regardless of the reading methodology (T.770). She stressed that she had observed many children over her career with a similar profile to [Redacted] who had normal intelligence and that after undergoing the intensive program at Wilson, these children had progressed. She opined that [Redacted] was appropriately placed at [Redacted] (D-Exh. 55 at 14) and she reviewed his progress at [Redacted] and maintained that [Redacted] progressed in his ability to read even thought he was still at a 1^st grade level, after he had completed 2^nd grade (T.772)

The Neuropsychologist maintained that [Redacted] had progressed in his decoding skills as evidenced in her updated evaluation on June 23, 2023 (P-Exh. LL), and that she found that the WJ-IV subtests indicated that [Redacted] improved his ability to read single words from a score of 76, (in the 5^th percentile) with a grade equivalent ("GE") of 1.1 to a score of 91, (in the in the 27^th percentile) with a GE of 2.8 and in passage comprehension [Redacted] improved from a score of 74, (in the 4^th percentile) with a GE of 1.1 to a score of 99, (in the 48^th percentile) with a GE of 3.9 and that he improved in writing from a score of 98, (in the 44^th percentile), with a GE of 2.5, to a score of 106, (in the 66^th percentile) with a GE of 5.2 (T.776;P-Exh. LL at 3). She explained that [Redacted] went from the beginning of the 1^st grade to mostly 3^rdgrade reading ability (Id.). She stated that [Redacted] was essentially a non-reader at level D, a pre-reading level when he started at [Redacted] but that based on his scores after 2 years at [Redacted] that he moved into the average range from the below average range (T.779). She stressed that [Redacted] had mastered "the code" to read with the intensive intervention and that he had to continue the [Redacted] program to complete the intervention (T.780).

On cross the Neuropsychologist acknowledged that she had not observed [Redacted] at his school in the District (T.794) and that she never had interviewed any District staff either in the CPSE or CSE (T.797). She explained that [Redacted] had an anxiety disorder, yet she was unable to discuss how [Redacted] addressed [Redacted]'s anxiety (T.798). She observed that [Redacted] was unable [Redacted] to his fine motor deficits and noted that she had recommended that [Redacted] receive OT (T.800). She acknowledged that [Redacted] did not provide OT and agreed that the lack of OT could cause anxiety and that by the age of [Redacted] that [Redacted] had had [Redacted] separate surgeries relating to [Redacted] and [Redacted] issues and these surgeries could contribute to anxiety (T.801). She further agreed that her report indicated that even with weekly private therapy for anxiety [Redacted] had made limited progress with anxiety (T.804). She noted that [Redacted] did not provide cognitive behavior therapy or school-based counseling but stressed that while [Redacted] did not offer OT the handwriting component of Wilson was part of the dyslexia intervention to teach correct letter formation through printing and then through cursive writing (T.805). She explained that while she had concerns about [Redacted]'s articulation errors, she did not formally test [Redacted]'s articulation (T.812-814). She stressed that she often reevaluated the children after her initial evaluations to determine their progress in reading (T.816). She further stressed that [Redacted] had received SLT and OT outside of school and opined that in the prioritization of remediation, the most important intervention was to address his academic needs (T.817).

On redirect the Neuropsychologist stated that she had evaluated many students who were in public school settings and received private intervention that mirrored the intervention at [Redacted] but maintained that only the [Redacted] program had the correct intensity of teaching (T.824). She explained that the amount of time [Redacted] needed to improve his OT deficits was significantly less than the time needed to remediate a learning disability (T.825). She opined [Redacted]'s ability to meet OT goals were not as relevant as meeting the reading goals because OT goals did not have the same time sensitivity as the ability to read (T.826). She opined that [Redacted] was an appropriate placement despite the lack of OT and counseling as [Redacted] had 3 separate periods of literacy per day and this intensity outweighed the benefits of the related services in the IEP of OT twice per week and counseling once per week. She stated that both OT and counseling could be added afterschool unlike 3 intense sessions of literacy per day (T.827). She acknowledged that while [Redacted] had received some Wilson in his classes in the District, there was no information outlined in any report to determine the level of Wilson implementation and that to provide Wilson with the correct implementation the staff must be fully trained in Wilson to adhere to the implementation with fidelity or if given individually or in a small group (T.829).

The expert testified that she was a Pediatric Developmentalist for language and a literacy specialist with a Ph.D. in that area (T.884) and was a licensed Pediatric Developmentalist who worked as an Assistant Professor of Pediatrics at the Albert Einstein College of Medicine. The expert explained that she was the founder of the [Redacted] Center for Learning and Child Development and that she developed classroom language dynamics and teacher training programs in NYC DOE and in [Redacted] (T.847). She explained that she trained teachers nationally and internationally in the oral language foundations of literacy and presented seminars at the International Dyslexia Association and the American Speech Language and Hearing Association and published in Einstein and in a textbook titled "Multi-sensory Teacher of Basic Language Schools" (849). She stated that she qualified as an expert in language development, language disorders and literacy (T.851). She reviewed [Redacted]'s file and found he needed very specific intensive intervention to treat his reading disability (T.852). She stated that [Redacted]'s low muscle tone affected his writing and his gross motor ability and his pronounced articulation difficulties signaled [Redacted] was at risk for a reading disability (T.853). She stressed that [Redacted] produced sounds that were different from what he heard and failing to provide articulation therapy had led to his inability to learn to decode and that when [Redacted] was unable to rhyme he demonstrated no phonological awareness (T.855).

The expert reviewed the June 17, 2018, of the CPSE IEP that indicated that [Redacted] had significant delays in speech and pragmatic language skills and fine motor skills that impacted his social skills (P- Exh. GG at 7). She stressed that [Redacted]'s speech articulation problems were apparent in his intelligibility in unknown contexts (T.861). She stated that [Redacted]'s deficits were consistent with the scientific literature regarding learning disabilities (T.863). She noted that children stored information about sounds and rhyming patterns of the structure of words said to them and opined that based on her experience as a language pathologist that [Redacted] required articulation therapy to train his ears to hear the difference in sounds by a SLP trained in motor disorders and PROMPT and that the inability to get his point across had a negative impact on [Redacted]'s sense of self (T.864-866).

When questioned about structured literacy the expert explained that the purpose of structured literacy was to teach the sounds that correspond with letters and that the children were read stories to recognize the sound symbol correspondence to build vocabulary (T.870). She reviewed the CPSE IEP that indicated 2 SLT goals to eliminate the phonological process of deletion of final consonants and noted that there were no goals for early phonological awareness needs nor any goals to identify sounds or to rhyme or an articulation motor goal (T.871;873). She opined that if children with a language-based disability did not receive remedial instruction, they do not acquire the foundational skills (T.872). She reviewed page 2 of the March 26, 2020 IEP, (D-Exh. 2 at 4) and noted that the IEP indicated that [Redacted] struggled to produce rhyming words and did not distinguish rhymes with accuracy and opined that rhyming was a crucial skill in decoding strategies (T.877). She stressed that children with dyslexia or another language-based learning disabilities needed to be taught explicit multi-sensory instruction such as O-G-based instruction and opined that the whole language approach did not use phonics and taught children to guess and that this approach was not appropriate for [Redacted] (T.879;881).

The expert reviewed the March 26, 2020 IEP goals and noted that the goals were not appropriate as there was no sound articulation goal and no oral motor goal and to eliminate SLT was not appropriate. She opined that [Redacted] needed very specific pre-literacy rhyming and segmentation goals (T. 882-884). She explained that [Redacted] needed to be taught to tap out the beginning, middle and end of the sound and then to understand a word by direct instruction such as O-G instruction (T.885). She reviewed the March 24, 2021 IEP goals and opined that the 2 reading goals to decode with accuracy a list of 10 CVC words and to determine the main idea of a story on his instructional level and identify two supporting details (D-Exh. 33 at 7) were very different from the O-G approach and to decode a list of 10 CVC words was a modest goal for the end of 1^st grade and noted that there was no direct instruction to learn to decode (T.886-887).

When questioned about the Educational Evaluation (D-Exh. 22) dated March 3, 2021, the expert stated that the student's letter and word recognition score of 80, (in the 9^thpercentile), the reading comprehension score of 69, (in the 2^nd percentile), the written expression score was in the 3^rd percentile and spelling score was in the 10^th percentile. She stated that the scores clearly evidenced a reading disability and to decode 10 CVC words did not reflect the significance of the disability (T.888). She stressed that student was very behind and needed intensive instruction of pre-literacy goals to understand word segmentation and to produce sound blends and to recognize consonant sounds. She stated [Redacted] would learn with a long list of CVC words with children at his level and that by using PAF every child would learn to decode and to spell and to correctly pronounce words (T.890). She opined that the Resource Room that was led by a special educator with a small number of children with varying levels of need and with varying methodologies for 5 days per week for 45 minutes per day in 6-day cycle was not appropriate for [Redacted] (T.893). She further opined that the 1^st grade report card reflected generic information as there was no explanation of grade level expectations (T.895) and that the 1^st grade report card indicated that [Redacted] performance decreased in mechanics as the year progressed (T.896). She reviewed the May 21, 2022 IEP for the 2022-2023 sy, (D-Exh. 61) and noted that [Redacted]'s instructional level could not be determined and there was no way to understand if structured literacy was used or if decoding the taught consistently (T.902).

When questioned about the Neuropsychological Evaluation, the expert concluded that [Redacted]'s above average verbal comprehension indicating good reasoning skills yet his low average working memory indicated that he would have difficulty remembering all the syllables when decoding a multisyllabic word. She stated that [Redacted] needed intensive appropriate intervention for decoding and to correct articulation errors (T.904). She explained that the significance of [Redacted]'s [Redacted]. She opined that after completing a single year at [Redacted] that the KTEA scores improved as compared to the District's evaluation and the Neuropsychologist's evaluation (T.907).

When questioned about [Redacted]'s progress report for the 2021-2022 sy (P-Exh. Q) as compared to the May 27, 2022 IEP for the 2022-2023 sy (D-Exh. 61), the expert stated that [Redacted]'s list of goals for spelling and decoding strategies was enormous versus the goal to read 10 irregular sight words with accuracy. She stated that there was no way to know the grade level of the sight words and opined that to read at the rate of 80 words per minute was too fast for [Redacted] who had oral motor problems (T.915). She opined that the decision to replace the special education teacher for Resource Room for 45 minutes per day with the special education teacher and regular education teacher in an ICT class was not appropriate as there was no explanation of the academic abilities of the other children in the ICT class (T.917). She opined that [Redacted] required direct, explicit instruction with intensity and consistency and with sufficient practice to work on skills and this instruction could not be accomplished in 45 minutes, especially for a special education student with a history of motor difficulties that included oral motor difficulties and hearing problems. She opined that [Redacted] needed a setting that was fully intensive and integrated to have constant reinforcement of skills without being worried that he was behind his peers (T.919).

When questioned about [Redacted], the expert stated that she taught 2 of the required 16-hours coursed called the [Redacted] ("[Redacted]”) to the [Redacted] teachers including the teachers of art, science, gym as well as a 16-hour course called "[Redacted]" (T.967). She explained that she taught the [Redacted] teachers to address problems with working memory issues and executive functioning issues and was associated with [Redacted] for past 35 years (T.920;931).

She described [Redacted] as a special education school for children with average to above average intelligence with a specific language-based learning deficit and opined that the Wilson program was structured to provide special education teaching for the entire day and that the staff used O-G based explicit instruction with small classes and that the children were taught the structure of language to help them decode and help them to write and that the children were grouped into cohorts of 6 (T.965). She stated that the students were grouped with similar learning needs and that as the intensity of the instruction increase the 6 children felt safe because they were able to learn with others with the same learning issues. She stated that the teachers were trained first as assistant teachers for a year, and they were required to be certified for the IMSLEC course each year so that each teacher knew how to teach the program with consistency in each class (T.921-923;931;934).

The expert opined that [Redacted] was appropriate for the 2021-2022 sy for [Redacted] because he needed a " [Redacted] " (T.924). She stated that she communicated with the [Redacted] CSE liaison of the lower school who described [Redacted]'s teachers and described the coding patterns with structured materials of PAF to teach [Redacted] spelling, writing, grammar and explained the rate of parsing a word to meet his articulation needs (T.927). She opined that [Redacted] was learning to clearly write sentences and that he progressed in math with the use of colored lined paper and a special pencil to decode the words so that he was able to understand the concepts in math (T.928). She stated that he received many multi-sensory cues as well as advocacy skills and the structure of the program was constantly reinforced by each teacher (T.932). She opined that [Redacted] was a smart boy with a very specific language-based learning disability that included dyslexia and that his dyslexia was compounded by his motor difficulties and extended ear infections that led to hearing loss during the critical learning time and that [Redacted]'s PAF that used O-G decoding, spelling, and writing comprehension provided the tools for [Redacted] to catch-up and met his literacy needs (T.933;935). She stated that the [Redacted] staff consisted of O-G master teachers and PAF master teachers who supervised all the new teachers and classroom teachers who were first assistant teachers and also were mentored (T.934). She opined that [Redacted] was appropriately placed at [Redacted] and that was not too restrictive at setting as he was placed in classes with children who learned at his rate so there was no sense of difference and so his anxiety was not triggered, and he did not feel different or unable to learn (T.936-937).

When questioned regarding [Redacted]'s IOWA Language Arts and Mathematics, the expert stated that the scores were standardized and that for vocabulary and reading in September 9, 2021, [Redacted] had scored in the 5^th percentile in vocabulary and in the 1^st percentile in reading and that by the end of the 2021-2022 sy, [Redacted]'s scores improved in testing on May 2, 2022 to the 7^th percentile in reading and by the end the 2022-2023 sy, [Redacted]'s scores improved to the 53^rd percentile in vocabulary and the 44^th percentile in reading (P-Exh. MM) and she stressed that the difference in scores reflected the fact that [Redacted] had mastered the foundational skills that he was taught so that by the end of 3^rd grade [Redacted] scored in the solidly average range in vocabulary, at 53^rd percentile and in the average range in reading (P-Exh. NN at 1). She opined that 2 years of direct, explicit, multi-sensory instruction from specially trained special education teachers with a common cohort enabled [Redacted] to progress to the average range in vocabulary and reading (P-Exh. MM ;T.950). She explained that [Redacted] made similar gains in the [Redacted] Coding Test in Reading from reading 30 CVC words to the ability to read 75 CVC and noted that [Redacted] had no ability to recognize irregular words on April 19, 2021, and that he had learned 95 irregular works in the May 15, 2023 assessment (T.952). She stated that she had observed [Redacted] read and noted that he used the strategies that he had learned to decode CVC words (T.953). She opined that [Redacted] made similar gains in the [Redacted] Coding Test for spelling (T.955) and noted that [Redacted]'s improvement after 2 years at [Redacted] was also found on the IOWA and [Redacted] Coding tests in vocabulary, reading, decoding and math and opined that he was appropriately placed at [Redacted] as he was taught in a specific way to address his dyslexia and language impairment and that he had a tool box of skills, techniques and strategies to learn. She opined that based on his learning disability that [Redacted] continued to need the [Redacted] program to learn (T.958;962-963).

On cross the expert stated that she reviewed March 26, 2020 IEP and indicated that the SLT evaluation dated March 12, 2019 was reviewed and that the SLP used the Goldman test that involved saying a single word in response to a picture and was not comprehensive (T.977). She acknowledged that [Redacted] was diagnosed with an anxiety disorder and opined that some children would feel anxious in an academic environment and would need counseling in school. She opined that there was no need for counseling in [Redacted] and that [Redacted] received private counseling for his anxiety symptoms (T.981). The expert acknowledged that the Neuropsychologist had recommended that [Redacted] receive counseling and OT and that [Redacted] did not offer counseling or OT. She acknowledged that she was not aware if the teachers at [Redacted] were NYS certified special education teachers (T.983-986).

On redirect the expert stated that the 2 assessments in the SLE dated March 12, 2019, were not comprehensive and the fact that [Redacted] scored in the average range on the CELF Preschool 2 and Goldman Test did not demonstrate [Redacted]'s abilities as both were superficial measures (T.1004). She stressed that she observed [Redacted]'s anxiety as he was aware that he had difficulties that warranted evaluations and that he turned to his mother for reassurance to ensure that he had no articulation problems. She opined those 2 years at [Redacted] enabled him to feel competent academically and that his family had provided private counseling outside of school (T.1006-1007). She explained that while [Redacted] did not provide OT to build core strength coordination [Redacted] did receive physical education classes and stressed that [Redacted]'s program trained their students in handwriting, reading and spelling and the [Redacted] instruction for these areas was important for the rest of his life (T.1008). She stated that the Fundations program was a Wilson program used in all classrooms to teach early phonological skills and opined that a general education classroom did not provide sufficient support for [Redacted] (T.1011).

When further questioned about the SLE dated March 12, 2019, that contained both the Goldman Test, and the CELF Preschool 2 (D-Exh. 65), the expert stated that the test for articulation was not comprehensive as the articulation test did not assess early phonological awareness skills (T.1248). She explained that phonological awareness skills in preschoolers were essential pre-reading skills and that children needed both to hear language as in aural and speak as in oral language (T.1249), and that in her profession as a licensed SLP, she would always test for early phonological awareness skills (T.1255). She related that she would measure phonological awareness in a child of 4 to assess the ability to acquire basic literacy skills (T.1259). She opined that to assess phonological awareness should not be only done by the special education teacher because the early foundations of literacy involve speech and language skills (T.1259).

The parent testified that she was concerned about her son's progress since preschool as he was struggling with writing, cutting and rhyming as was noted by his preschool teacher and (P-Exh. FF at 2,3; T.1031). She recalled that her son received OT and SLT in preschool and that OT was continued, but SLT was discontinued in Kindergarten (T.1032). She recollected that his Kindergarten teacher had expressed concerns that [Redacted] lacked pre-reading skills as he was [Redacted] (P-Exh. C at 2; T.1035). She noted that the work given to her son was modified so that he had less assignments to complete and his teacher had reduced the level of skill he needed to meet (P-Exh. C at 2; T.1046). She recalled that in Kindergarten, during 2019-2020 sy, COVID had shut down school and that her son finished the year at home and that she observed his son at home, who was aware that he was behind his peers and she observed his son on zoom and discovered that he [Redacted] (T.1037;1047).

The parent noted that found she had found a reading tutor who was O-G certified and who was referred by the Neuropsychologist, who had recommended that her son receive intervention using the multi-sensory based approach immediately (T.1052). She recalled that she had participated in the March 26, 2020 IEP for the 2020-2021 sy (D-Exh. 2) and that the Kindergarten teacher had raised concerns with her son's pre-reading skills deficits (T.1039). She recollected that OT was offered for the 1^st grade and that her son had a difficult 1^st grade year as he was not able to read the words presented but was encouraged to use the picture clues (T.1043).

The parent stressed that she presented the team with the private reports as she had participated in the March 25, 2021 IEP meeting for 2^nd grade (D-Exh.27) and recalled that the plan change the program for the 2021-2022 sy was to support her son with 45 minutes of Resource Room for 5 out of 6 days (T.1054). She explained that she had advocated for a multi-sensory function-based approach and mentioned Wilson and recalled that there was a follow-up call to amend the 1^st grade IEP and related that the Special Education Teacher would send home word lists but noted that her son merely memorized the list of words as he was unable to decode what he saw (T.1058). She opined that her son did not progress during the 1^st grade even with Resource Room because he could not read and that she considered the District's summer reading program but rejected it because as a general education program it would not meet his specific needs (T.1060).

The parent stressed that Wilson instruction was recommended, and that Wilson instruction would provide the multi-sensory phonics-based instruction that her son needed and stressed that her son enjoyed the summer program at [Redacted]. She stated that she had enrolled her son at [Redacted] for the 2021-2022 sy and had sent the District the TDN and did not receive a response (T.1063). She recalled that she had attended the CSE meeting after the 2021-2022 sy began as her son attended [Redacted] and recalled that the team changed his classification to LD but did not make any substantive changes from the prior program (T.1065). She opined that her son progressed at [Redacted] during the 2021-2022 sy and in his reading ability and his emotions improved as he was happy to go to school and happy to read (T.1066-1068).

The parent explained that she presented the team with the Neuropsychologist's evaluation (T.1069) and that she was aware that [Redacted] did not offer traditional OT. She stated that she considered that her son's greater need was his reading impairment. She explained that staff at [Redacted] taught handwriting in a class for 45 minutes and noted that OT would be part of the handwriting class (T.1070). She stated that her son's anxiety stemmed from his inability to read and that she arranged for private OT session afterschool (T.1071). She stated that she had asked the Neuropsychologist to participate in the IEP meeting to share her assessment and to report on the progress that her son made with the multi-sensory skills and phonics-based programs at [Redacted] using PAF with the CSE team (T.1072). She recalled that the team asked what level [Redacted] was at using PAF. She opined that to equate the level with F&P was compare apples to oranges (T.1073). She stated that the team recommended an ICT class and OT and counseling for the 3^rd grade (T.1075). She opined that the ICT class size was too large and there was no discussion of the methodology of PAF or the reading program or writing program. She recalled that there was no discussion of any other support and there was no comment to the TDN letter that she sent to alert the District that [Redacted] would attend [Redacted] for the 2022-2023 sy. She opined that [Redacted] felt very comfortable with [Redacted] in 3^rd grade and loved going to school (T.1077) and that his self-esteem improved, and his school anxiety decreased (T.1078).

The parent explained that her son was not able to write independently and would spend an hour to complete the writing assignment dated October 2020 (P-Exh. PP) and that she assisted her son to complete a writing assignment on March 16, 2021 and again her son took an hour to write a few words (P-Exh. QQ). She stated that the samples (P-Exh. PP-RR) were examples of the writing ability of her son in March 2021 (T.1088). She opined that the decision to move her son to [Redacted] was difficult and the negative impact on her son's self-worth over his inability to read coupled with her son being ridiculed about his reading difficulties supported her decision to send her son to [Redacted] (T.1089) and that after 2 years at Wilson her son gained confidence and gained his trust in his teachers and his school (T.1091) was excited to pick up a book to read (T. 1094).

On cross the parent stated that she signed the contract on April 8, 2021 and made 3 non-refundable deposits for the 2021-2022 sy before July 15, 2021 (1103) and signed the contract on February 8, 2022 for the 2022-2023 sy (P-Exh. L) 3 months before the May 2022 IEP meeting (T.1104). She stated that she was with her son during remote instruction when he participated virtually during the 2020-2021 sy and that she hired a teacher to work her son during remote instruction and that she considered the ability to read a more important life skill than fine motor skills to button and unbutton pants (T.1113).

On redirect the parent stated that she decided to send her son to [Redacted] after he attended [Redacted] during the summer of 2021 for the 2021-2022 sy (T.1119) and opined that while there was $ [Redacted] deposit that was non-refundable she was open to an appropriate program from the District (T.1121).

CONCLUSIONS OF LAW

Under the Individuals with Disabilities Education Improvement Act ("IDEIA") (20 U.S.C. §§ 1400-1482) as well as New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. The Individuals with Disabilities Education Act ("IDEA") was amended in 2004 in the IDEIA. There is no obligation on the part of the school district to provide the best education for the student, but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. 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]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

The burden of both production and persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

2020-2021 sy

The District's attorney asserted that the claims for compensatory relief were time barred by the applicable Statute of Limitation ("SOL") as the parents filed their DPC on January 5, 2023 (Exh. XIII at 11), and that only the 2021-2022 and 2022-2023 sys were clearly covered in this action as falling within the 2-year SOL as set forth in the IDEA under 20 U.S.C.§1415(f)(3)(c). The District's representative asserted as a FAPE was provided for the 2020-2021 sy and that as the March 6, 2020 IEP that governed the 2021-2022 sy was not challenged, the parents were not entitled to compensatory education for the lack of a FAPE for the 2020-2021 sy (Exh. XIII at 14). I find that SOL is an affirmative defense that must be raised or waived. I find that the District's representative did not submit the District's answer to the DPC and that generally the SOL defense is raised in the answer. In this case, the District's representative raised the SOL defense in the Closing Statement. NYS regulations require that the District respond to a DPC within 10 days of receipt if it has not yet sent the parent prior written notice regarding the subject matter of the parent's DPC (8 NYCRR 200.5[i][4]). In Application of a Student with a Disability, Appeal No. 23-033, the State Review Officer ("SRO") held that "the defense of the statute of limitations” was "required to be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014]". However, I find that I need not address whether the SOL defense was raised during the hearing, as the parents seek an award of compensation education from January 5, 2021 through the end of the 2020-2021 sy and the period is clearly covered within the 2-year SOL as the DPC was dated January 5, 2023. The parents also seek a finding that a FAPE was denied for the 2020-2021 sy (IHO Exh. XIII at 30).

The parents asserted in the DPC that the 2019-2020 and 2020-2021 sys were not reasonably calculated for [Redacted] to make meaningful progress (P-Exh. A at 2). The parents asserted that the District failed to recommend ESY services during the 2020-2021 sy and that the CSE had failed to conduct an FBA and resultant BIP for [Redacted]'s avoidance behavior during the 2020-2021 sy (P-Exh. A at 8).

I note that the SRO held in Application of the Bd. of Educ, Appeal No. 11-134: "It is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing". Accordingly, I need not consider the issue of the lack the lack of meaningful progress in the 2019-2020 sy and need only address the issues concerning ESY and the lack of a FBA and BIP in the 2020-2021 sy.

Claims concerning the failure to recommend ESY services The District's attorney asserted that [Redacted] was appropriately educated in the least restrictive environment ("LRE") during the 2020-2021 sy and received RTI services of Tier 1 and the more intensive Tier 2 interventions (IHO-Exh. XIII at 11-12).

The parents maintained his 1^st grade (2020-2021 sy) was also not successful as his 1^st grade teacher noted that his reading deficiencies on the F&P were well below expectations and yet no help was offered.

The testimony from the District's staff described RTI as a process by which general education students could be referred for support services in that Tier 1 interventions, meaning classroom interventions, the Resource Room teacher would push into the general education class to work with a small group of children on phonics instruction. The testimony further established that if Tier 1 interventions did not address reading needs, then Tier 2 services with multi-tiered instruction and support as a pull-out with a special education teacher with 5 students in [Redacted]'s class for 30 minutes would be implemented (T.379-384;396). Tiers 1 and 2 are not specific special education services. The testimony established that [Redacted] received Tier 1 RTI services for 6 weeks from February 21, 2021, as the Resources Room teacher pushed into the 1^st grade class to work with [Redacted] during the Readers Workshop (T.407). After the Resource Room teacher had assessed the Student in the Education Evaluation dated March 3, 2021, (D-Exh. 22) and had participated in the March 15, 2021 IEP meeting, (D-Exh. 22), it was determined that [Redacted] needed Resource Room, or the Tier 3 support of a special education program taught by a special education teacher for 45 minutes daily in a group of 3 to provide individual special education services (T.396;404).

I find that the CSE was aware that [Redacted] needed more support than was provided from either Tier 1, Tier 2 or Tier 3 interventions as I credit the testimony and find that according to the report card (D-Exh. 25) for the 2020-2021 sy, [Redacted] fell further behind his peers in reading and spelling and that [Redacted]'s delays in reading and spelling was the very that reason RTI was started (T.200) and that Resource Room was added because he was making less than anticipated progress (T.221). I find that there was no explanation for the March 15, 2021 IEP that indicated that [Redacted] was approaching grade level expectations (D-Exh. 27 at 4), yet [Redacted] scored in the 3^rd percentile in the March 2021 Education Evaluation in written expression score, in the low range of ability (D-Exh. 22 at 2).

The credible evidence established that the District's Special Education Teacher who used the KTEA-3 to assess his skills found that he did not put effort into the test (D-Exh. 22 at 1), and the District's OT provider did not believe that the score was an accurate representation of what [Redacted] could do (T.347). I credit the testimony and find that the District staff did not consider the data from the Educational Evaluation to be accurate and the staff did believe that [Redacted] required more support ASAP as the CSE team decided not to wait for the 6-week trial period of RTI to end but determined that [Redacted] should receive Resource Room immediately (T.407). The parents maintained in their TDN that his Kindergarten year (2019-2020 sy) at [Redacted] skills and had [Redacted] and that his RIT testing declined from 59^th percentile in fall to 34^th percentile in the winter (D-Exh. 43 at 2). I find that [Redacted]'s reading deficiencies worsened in1^st grade and I find [Redacted] required more support in 1^st grade than could be addressed in OT or in the Resource Room for 5 sessions of 45 minutes per session in a 6-day cycle. I find that his 1^st grade teacher had noted that his reading deficiencies on the F&P that were well below expectations and yet no consistent special education services were offered.

I credit the testimony that the parent found a reading tutor who was O-G certified as recommended by the Neuropsychologist, who told her that her son should receive intervention using the multi-sensory based approach immediately (T.1052). I credit the testimony that she had participated IEP meeting for the 2020-2021 sy (D-Exh. 2) and noted that the Kindergarten teacher had raised concerns with her son's pre-reading skills deficits (T.1039) and recalled that 1^st grade was a difficult year as he was not able to read the words presented but was encouraged to use the picture clues (T.1043). I credit the testimony of the expert and find that [Redacted] was a smart boy with a very specific language-based learning disability that included dyslexia and that his dyslexia was compounded by his motor difficulties and [Redacted] (T.933;935). School districts must provide ESY to students who have IEPs if it is necessary to provide FAPE. Federal law requires that the student’s IEP team must decide whether ESY services are necessary to provide FAPE (34 CFR 300.106 (a)(2)). The District representative presented no evidence to establish that the 2020 IEP team considered the regression/recoupment analysis and determined that ESY were not warranted. There was no testimony to establish that the team considered whether [Redacted] experienced significant regression during school breaks or he needed to re-learn the skills he lost. There was no testimony to establish that the team considered [Redacted]'s dyslexia and determined that he did not experience substantial regression in reading as a result of his dyslexia. The parents argued that ESY services were warranted during the 2020-2021 sy (P-Exh. A at 12).

I find that the District representative did not consider the parent's request for ESY as [Redacted] struggled and had rejected the District's summer reading program as the program was for general education students and would not address [Redacted]'s needs. I find the failure to consider ESY impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE.

Claims concerning lack of FBA and BIP

I find that the CSE had ample evidence of [Redacted]'s anxiety and interfering behavior and I find that the record was replete with examples of [Redacted]'s anxiety and school avoidance behavior as he was aware that his rate of progress was much lower than his peers and as a result, he became more resistant to attending school during the hybrid instruction during 2020-2021 sy (T.692;.855;863-866; 919; 933-937; 1037; 1047; P-Exh. GG at 7; D-Exh. 14). The March 26, 2020 IEP indicated that in writing [Redacted] was " [Redacted] " and the social development section indicated that [Redacted] had " [Redacted] " in the beginning of the sy and "was easily overwhelmed and reluctant to perform any task requested by the teacher" (D-Exh. 2 at 5). The Social History dated December 9, 2020, indicated that [Redacted] had school anxiety and difficulty separating and that COVID caused significant restrictions on social interactions with peers (D-Exh. 20 at 1). I credit the testimony of the District's Special Education Teacher who conducted the Educational Evaluation on [Redacted] (P-Exh. D) and find that she had observed a large amount of testing anxiety (T.392). The Grade 1 report card's comment section indicated that [Redacted] " [Redacted] '"(P-Exh. 25 at 2).

I find that the CSE team was required to conduct the FBA and then design a BIP to manage the problem behaviors as required under 8 N.Y.C.R.R. § 200.22[b], and I find that this failure impeded the parents' ability to participate in the decision making process.

The testimony and evidence established that per the MAP testing in reading [Redacted] dropped from the 59^th percentile to the 34^th percentile (T.196) and according to the report card (D-Exh. 25) for the 2020-2021 sy, [Redacted] fell further behind his peers in reading and spelling and that was the reason RTI was started (T.200) and increasingly more special education services were added because [Redacted] was making less than anticipated progress (T.221). The academic achievement section of the March 15, 2021 IEP indicated that he was below grade level in reading at a F&P level (D -Exh. 27 at 3). The social development section indicated that [Redacted] would perseverate over things and ask to see the nurse if something bothers him and that his "anxieties in school interfere with him completing his work" (D-Exh. 27 at 4). I find that the CSE had ample evidence of [Redacted]'s anxiety and interfering behavior. I find that while the Second Circuit has held that the failure to conduct an FBA is a serious procedural violation for just this reason. R.E. v. NYC Dept. of Educ., 694 F.3d 167, 190 (2d. Cir. 2012), however, not every failure to conduct an FBA will rise to the level of a denial of FAPE, if it was mitigated by other information regarding the student’s behavioral issues and supports to appropriately accommodate them. Id. I find that the March 15, 2021 IEP (D-Exh. 27 at 6) had 2 social/emotional/behavior goals: (1) to make positive statements about his qualities and (2) to verbally identify situations where he experienced anxiety. The March 24, 2021 IEP (D-Exh. 33 at 7) had a single social/emotional/behavior goal to verbally identify situations where he experiences anxiety and identify strategies to deal with his anxiety. I do not find that the IEP sufficiently considered the student's behavioral issues of work avoidance and anxiety. I do not find that the single social/emotional/behavior goal to verbally identify situations where he experiences anxiety and identify strategies to deal with his anxiety provided appropriate support services. I do not find the related service of individual counseling once in a 6-day cycle in the counselor's office provided sufficient support. I find that the record clearly established that [Redacted] had interfering behavior and anxious behavior and I find that the failure to conduct the FBA and BIP was a denial of a FAPE.

Accordingly, I find that the District did not establish that a FAPE was offered to the Student during the 2020-2021 sy.

2021-2022 sy

I find the District's representative disputed the claims of the parents and asserted that FAPE was offered for the 2021-2022 sy as [Redacted] was classified as OHI and was recommended to be placed in a general education class and receive OT in a group twice in a 6-day cycle for 30 minutes in a therapy room per the IEP dated March 26, 2020 (D-Exh. 2 at 1). The District maintained that FAPE was provided to [Redacted] in the 2021-2022 sy in the amended IEP dated March 15, 2021, as [Redacted] who was classified with OHI and was recommended to receive Resource Room in a small group of 5 for 45 minutes per period for 5 periods in a 6-day cycle in the Resource Room; OT in a small group twice in a 6-day cycle for 30 minutes per session in a therapy room and counseling in a small group once for 30 minutes in a small group a 6-day cycle in a counselor's officer therapy room (D- Exh. 33 at 1; IHO-Exh. XII at 16).

The District maintained that it had provided [Redacted] with a FAPE for the 2021-2022 sy as [Redacted] who was classified as LD and the September 15, 2021 IEP had recommended Resource Room in a small group of 5 for 45 minutes per period for 5 periods per 6-day cycle in the Resource Room; OT in a small group twice in a 6-day cycle for 30 minutes per session in a therapy room and individual counseling once for 30 minutes in a 6-day cycle in a counselor's officer in the IEP dated September 15, 2021 (D-Exh. 48) and maintained that OT and counseling as well as small group instruction in Resource Room would meet the Student's academic, related service and social/emotional and management needs and that the goals addressed the [Redacted]'s deficits. The District's attorney asserted that the CSE team reviewed " [Redacted] " (IHO-Exh. XIII at 17).

The parents maintained that the District failed to provide a FAPE for the 2021-2022 sy and asserted 6 specific procedural challenges: (1) the failure to appropriately evaluate [Redacted]; (2) the failure to appropriately consider evaluative data; (3) the failure to offer methodologies based on "peer review research"; (4) the failure to provide measurable goals; (5) the failure to provide related services; and (6) the failure to consider the full continuum of services and the failure to provide adequate instruction, supports, and services(P-Exh. A at 7). In their TDN, the parents challenged evaluations that were not conduced despite their request 6 months prior to the District conducting the educational evaluation on March 15, 2021 (D-Exh. 22). Their signed consent, (D-Exh. 8) was stamped dated September 15, 2020) and yet no assessment of his emotional functioning was conducted, and no behavioral assessment was conducted to examine his avoidance behavior. The parents maintained that the educational evaluation did not address [Redacted]'s anxiety and there were no supports except for OT and that the CSE continued the same ineffective program as was provided in the 2020-2021 sy. The parents asserted that [Redacted]'s academic skills were declining relative to the general population and Resource Room for 45 minutes per session for 5 sessions in a 6-day cycle in a group of 5 was insufficient to meet [Redacted]'s needs and was contrary to NYSED's RTI programming that “should minimally be scheduled for an uninterrupted 90-minute block of instruction daily" (P-Exh. A at 5-6). The parents asserted that the IEP was substantively inadequate for the following reasons: the program was based on what was available and not determined to meet [Redacted]'s unique needs; the CSE did not consider the parent's request for ESY and did not address [Redacted]'s needs in math (Id.).

Claims concerning insufficient evaluations and inappropriate and insufficient IEP The parents asserted that [Redacted] was not evaluated in all areas of suspected disability and failed to identify all his needs under N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(b)(4)( P-Exh. A at 7). I find that the parents signed consent on or about September 15, 2020, (D-Exh 8), prior to the District conducting the educational evaluation on March 3, 2021 (D-Exh. 22). I find that the District failed to evaluate [Redacted] in all areas of his disability and I find the Educational Evaluation was not done in a timely manner and the District failed to conduct a behavior evaluation despite the behavior issues and that the Educational Evaluation did not address [Redacted] anxiety and reading, writing and math challenges as he scored very low in reading comprehension, written expression and below average in math (D-Exh. 22 at 4).

I find the Education Evaluation was insufficiently comprehensive to assess [Redacted]'s needs. I credit the testimony and find that the District staff did not consider the data from the Educational Evaluation to be accurate and the staff did believe that [Redacted] required more support ASAP as the CSE team decided not to wait for the 6-week trial period of RTI to end but determined that [Redacted] should receive Resource Room immediately (T.407). I find that the March 15, 2021 IEP was scheduled as a result of [Redacted]'s low scores on the Educational Evaluation. I find that no psycho-educational evaluation was conducted for March 2021 IEP meeting or the September 2021 IEP meeting despite the parent's request on September 15, 2020 (D-Exh. 8). I find that without the required evaluations the IEP goals were inappropriate and significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE.

I find that the lack of CSE evaluations to support the decision not to provide more special education services than 45 minutes per period for 5 periods per 6-day cycle in the Resource Room impeded the student's right to a FAPE. I find that there was no evaluation to support the decision not to provide 90 minutes of Language Arts as requested impeded the parent's opportunity to participate in the decision making process. I find that maintaining [Redacted] in a program which exacerbated his reading difficulties and failing to timely provide an appropriate IEP was a failure to provide a FAPE.

The parents asserted that the general education placement with OT twice per week for 30 minutes per session in a 6-day cycle in a small group was insufficient to meet his academic, social and emotional and behavior needs with Tier 1 interventions (D-Exh. 43 at 2) from September 5, 2020 to March 15, 2021 and the general education placement with Resource Room for 45 minutes per session for 5 sessions in a 6-day cycle in a group of 5 as well as group OT twice per week for 30 minutes per session in a 6-day cycle in a group and individual counseling once per 6-day cycle for 30 minutes from March 24, 2021 to June 20, 2021 was insufficient to meet his academic, social and emotional and behavior needs (P-Exh. A at 4). I find that the CSE was aware of [Redacted]'s reading issues as the March 3, 2020 IEP noted that in reading [Redacted] had difficulty segmenting words independently and had difficulty distinguishing rhymes with accuracy (D-Exh. 2 at 6).

I find that the District was aware of the parents' request for additional testing on September 15, 2020 (D-Exh. 8). I find that the SRO held in Application of a Student with a Disability, Appeal No.12-087, that the "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])."

I find the CSE team was required to conduct an adequate assessment, and "use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information"(20U.S.C. §1414[b][2][A]). It was undisputed that no evaluation supported the general education program with OT twice per week for 30 minutes in a 6-day cycle was sufficient to address his lack of academic growth and his anxiety. The CSE did not recommend counseling to address the anxiety or special education services the reading, writing and math deficits until the March 15, 2021 IEP meeting (D- Exh. 33 at 1). The March 24, 2021 IEP meeting was to amend the IEP without a meeting for the remainder of the 2020-2021 sy. I find that the CSE failed to develop an appropriate IEP for the 2021-2022 sy to address [Redacted]'s reading and writing deficits and anxiety issues.

I credit the testimony and find that the parent told the team that her son was not able to read the words presented but was encouraged to use the picture clues (T.1043) and that she had advocated for a multi-sensory and a function-based approach and mentioned Wilson, an O-G program. I credit that testimony and find that the parent recalled that there was a follow-up call to amend the 1^st grade IEP, but Wilson was not added. I credit the parents testimony and find that the 1^st grade teacher would send home word lists and I find that [Redacted] merely memorized the list of words as he was unable to decode what he saw (T.1058). I credit the parent's testimony who recalled that she had attended the September 2021 IEP meeting after her son had attended [Redacted] and recalled that the team changed his classification from OHI to LD but did not make any substantive changes and the program matched the prior program (T.1065). I credit the testimony and find that [Redacted] did not progress in reading during the 1^st grade even with the special education services of Resource Room added in March 2021 because he could not read. I find that the parent rejected the summer program because it was a general education program it would not meet his specific reading needs (T.1060). I find that the lack of CSE evaluations to support the decision not to provide multi-sensory instruction impeded the parent's opportunity to participate in the decision-making process.

Claims of the failure to offer peer-reviewed research for methodologies and strategies

I find that the District was under no obligation to use the peer-reviewed research as long as their chosen methodology allowed [Redacted] to receive educational benefits. The parents asserted that the "the District did not offer any scientifically proven methodology or strategy to address his unique educational needs. N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(d)(2)(v)(b)“ (P-Exh. A at 8). I find that because [Redacted] had deficits in reading his classification was changed from OHI to LD (T.226). I find that the District had discretion in deciding the appropriate methodology for educating a LD student such as [Redacted] as long as the choice in methodology enabled the LD students to progress. I find that the record was replete with evidence that [Redacted] needed O-G methodology to progress.

I credit the parent's testimony and find she had advocated for a multi-sensory function based approach and mentioned Wilson and noted that her son merely memorized the list of words as he was unable to decode what he saw (T.1058) and that Wilson instruction would provide the multi-sensory phonics-based instruction that her son needed and stressed that her son enjoyed the summer program at [Redacted] and she that had enrolled her son at [Redacted] for the 2021-2022 sy and sent the District the TDN and did not receive a response (T.1063).

I credit the testimony and find that the parent had attended the CSE meeting after the 2021-2022 sy began as her son attended [Redacted] for the 2021-2022 sy and recalled that the team changed his classification but did not make any substantive changes to the prior program (T.1065). I find that there was no obligation to use the "peer-reviewed research" as long as the chosen methodology allowed [Redacted] to receive educational benefits.

I credit the Interim Director's testimony and find that structured literacy was the reading model in the District's elementary school and the Wilson Fundations program was used to systematically teach reading and that the elementary school also used the balanced literacy approach (T.515). I credit the testimony of the expert who stated that she was familiar with the District's structured literacy program as part of the Fundations curriculum and agreed that to some extent it was a phonics program (T.1001). I credit the testimony of the District's Special Education Teacher who recalled that the 1^st grade class used F&P and that she had used mostly Wilson with the 5 children in her Resource Room for 45 minutes each day and that she had used F&P to check if the children were implementing the skills steps from the PAF steps from Wilson instruction (T.465). I credit the testimony of the parent [Redacted] (T.1073). I credit the testimony of the Special Education Teacher who split her period with 30 minutes of Wilson instruction and 15 minutes of guided reading or sentence skills (T.485-486;499). I find there was no specific reading program for [Redacted] as F&P and PAF from Wilson instruction were both used during the Resource Room period of 45 minutes. I find that the reading block was provided in isolation, lacking any repetition or consistent practice, and was not integrated within his curriculum. While I find that there was no obligation to use the "peer-reviewed research" the credible testimony from the Neuropsychologist established that [Redacted]'s dyslexia was treatable with a fully systematic, phonics-based program with intensity and repetition with monitoring to ensure that he did not move past a lesson until he mastered it (T.759). I credit the testimony of the expert and find that children with dyslexia or another language-based learning disabilities needed to be taught explicit multi-sensory instruction such as O-G-based instruction. I credit the testimony and find that the whole language approach did not use phonics and taught children to guess and that the whole language approach was not appropriate for [Redacted] (T.879;881).

Testimony adduced at the hearing established that the mixing of the balanced literacy and whole language approach with some Wilson instruction was not appropriate curriculum to address [Redacted]'s dyslexia. I credit the parent's testimony and find that [Redacted] merely guessed the unknown from clues or memorized word from a list of words but was unable to decode the word (T.879;881;1058). I credit the testimony of the Special Education Teacher who considered 15 minutes of writing during the Resource Room in a 6-day cycle would address [Redacted]'s writing deficit (T.488). I find that handwriting was as important to [Redacted]'s academic success as reading fluency, decoding and reading comprehension and I find that 15 minutes of writing during the 45 minutes of Resource Room was not sufficient support to address [Redacted]'s writing deficits. The parents' attorney asserted that the Educational Evaluation indicated [Redacted] was assessed at the 3^rdpercentile HO-Exh. XIII at 12). I find that a single writing goal and15 minutes of special education instruction in writing in a 6-day cycle would not address [Redacted]'s writing deficit. I find that [Redacted] required a multi-sensory phonics-based systematic instruction for reading and writing to address his deficits in writing.

The parents' attorney argued " [Redacted]." (IHO-Exh. XIII at 2). I agree.

Therefore, I find the lack of a multi-sensory phonics-based instruction during the 2021-2022 sy was a denial of a FAPE.

Moreover, pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to four criteria: academics, social development, physical development and management needs under N.Y. Comp. Codes R. & Regs. tit. 8, § 200.6(h)(2). I find that the testimony and evidence did not establish that [Redacted] was grouped appropriately in the Resource Room as I credit the testimony and find that the special education teacher was not aware of [Redacted]'s disability or of the learning issues of his peers in the Resource Room (T.461).

Claims concerning the lack of appropriate goals

The parents objected to the March 15, 2021 reading goals and social/emotional goals and asserted that [Redacted] required a math goal and required more than a single goal to assist [Redacted] to physically write and the IEP failed to include focusing goals or social/ emotional goals (P-Exh. A at 6). The parents objected to the September 15, 2021 annual reading goals:(1) to use an explicitly taught strategy to decode words on his instructional level (3 out of 4 trials over 2 weeks) and (2) to answer W questions (who, what, where, when, why) after reading a text on his instruction level correctly (3 out of 4 trials over 4 weeks). The parents objected to the 2 writing goals: (1) to orally rehearse his ideas with a teacher and (2) to write 3 sentences with proper punctuation and capitalization (3 out of 4 trials over 4 weeks) and (2) to demonstrate the command of the conventions of standard English spelling by spelling words with consonant blends, digraphs and common vowel patterns by the end of the marking period (D-Exh. 48 at 8). The parents asserted that the reading goals were vague and overbroad asserted that the goals did not meet his individual needs and challenged the appropriateness of the IEP annual goals and short-term instructional objectives. The parents noted that there were no goals or objectives pertaining to interfering actions and the goals lacked a recommendation of sensory tools or equipment (Exh. 62 at 3). The parents asserted that CSE had failed to develop appropriate academic goals and appropriate OT goals and failed to recommend SETSS despite [Redacted]'s delayed functioning (Id.). I find that without sufficient evaluations to support the IEPs during the 2021-2022 sy the reading, writing and social/emotional goals are not appropriate. I credit the testimony of the expert and find that the 2 reading goals on the March 21, 2021 IEP to decode with accuracy a list of 10 CVC words and to determine the main idea of a story on his instructional level and identify two supporting details (D-Exh. 33 at 7) were very different from the O-G approach and to decode a list of 10 CVC words was a modest goal for the end of 1^st grade and did not include direct instruction to learn to decode(T.886-887).

The parents' attorney argued that the " [Redacted] " (IHO-Exh. XIII at 12). I agree.

The parents asserted that the failure to provide baselines in the goals " [Redacted] " (P-Exh. A at 8). I agree. The parents' attorney asserted that the [Redacted] " (IHO Exh. XIV at 19). I agree. I credit the expert's testimony reviewed the March 26, 2020 IEP goals and note that the goals were not appropriate as there was no sound articulation goal and no oral motor goal. I find that the District failed to establish that student's articulation issues were addressed without any SLT goals.

The parents objected to the March 15, 2021, IEP contained 2 reading goals:(1) to use an explicit taught strategy to decode words on an instructional level 3 out of 4 times and (2) to answer "W" questions (D-Exh. 27 at 6).

The parents' attorney argued that the "2020-21 IEP should have included very specific foundational pre-literacy and basic first grade goals (such as rhyming and segmentation). T 883. Although the IEP identified difficulties in oral motor skills and articulation, it lacked goals in those areas. The IEP reported difficulty in decoding but provided no direct instruction or goals in decoding. T 884" (IHO-Exh. XIII at 11). The IEP had 3 motor skills goals: (1) to improve visual spatial skills to write 2 sentences with appropriate spacing between words, (2) to complete visual scanning and tracking to improve visual endurance and attention and (3) to improve fine motor precisions skills to complete mazes and connect dots 4 out of 5 trials (D-Exh. 27 at 6-7). I find that as [Redacted] had scored in the 3^rd percentile in the March 2021 Education Evaluation in written expression score, in the low range of ability (D-Exh. 22 at 2) and I find the OT goals were insufficient to address [Redacted]'s difficulty in decoding and handwriting.

Claims concerning the lack of appropriate related services The parents asserted that "for the provision of FAPE, an IEP must include related services, defined as developmental, corrective, and other supportive services as are required to assist a student with a disability, physical therapy, occupational therapy, counseling services, and parent counseling and training. Id. § 200.1(qq)" (P-Exh. A at 9). The September 15, 2021 IEP recommended related services of OT for 30 minutes twice in a 6-day cycle in a therapy room in a small group; individual counseling (once in a 6-day cycle) in the counselor's office and resource room once daily for 45 minutes (5 times in a 6-day cycle) (D-Exh. 48 at 1,8). I find that the CSE was aware of [Redacted]'s anxiety as the Progress Report for Goals and Objectives dated December 3, 2020, indicated that [Redacted] had achieved the goal to verbally identify situations where he experienced anxiety and identified strategies to deal with his anxiety.

Testimony and evidence adduced at the hearing established the student continued to struggle with anxiety during the 2021-2022 sy and I find that a single session of counseling and 2 sessions of OT were insufficient related services to meet his academic, social and emotional needs. I find maintaining [Redacted] in a program which exacerbated his academic, social and emotional difficulties was a denial of a FAPE.

The updated Social History dated December 9, 2020, indicated that [Redacted] had school anxiety and difficulty separating and that COVID caused significant restrictions on social interactions with peers (D-Exh. 20 at 1). I find that [Redacted]'s counseling was not mandated until the March 24, 2021 IEP and I find that a period of counseling did not address the [Redacted]'s anxiety as described by the witnesses and evidence. I find that [Redacted]'s articulation needs were not address in the IEPs. I find that record was replete with [Redacted]'s articulation needs from the June 4, 2018, SLE as SLP noted that " [Redacted] " (P-Exh. W at 4) and that the March 20, 2020 IEP for 1^st grade indicated that [Redacted] struggled with rhyming and had difficulty "distinguishing rhymes with accuracy" (D-Exh. 2 at 4). I credit the expert's testimony and find that the CPSE IEP that indicated that [Redacted] had significant delays in speech and pragmatic language skills and fine motor skills that impacted his social skills (P- Exh. GG at 7). I find that [Redacted] required SLT and SLT goals to address his articulation needs during the 2021-2022 sy.

Claims concerning parental participation

I find that the parents presented ample testimony and evidence to establish that the procedural inadequacy of the IEPs that impeded in their participation in the decision-making process. I find that without adequate evaluations for the IEP goals were inappropriate and significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE. I credit the testimony and find that the parent stressed that Wilson instruction was recommended and that Wilson instruction would provide the multi-sensory phonics-based instruction that her son needed and conveyed to the team that her son enjoyed the summer program at [Redacted] and that she had enrolled her son at [Redacted] for the 2021-2022 sy and sent the District the TDN and did not receive a response (T.1063). I credit the testimony and find that the parent had attended the CSE meeting after the 2021-2022 sy began as her son attended [Redacted] and recalled that the team changed his classification to LD but did not make any substantive changes from the prior program (T.1065). Testimony adduced at the hearing established that both the Kindergarten teacher and 1^st grade conveyed their concerns to the parent regarding [Redacted]'s lack of progress in reading and writing. I credit the 1^st grade regular education teacher who recalled that the Kindergarten teacher had asked her to tutor [Redacted] to help transition him to the 1^st grade as he needed more support in reading (T.162) and that she went to [Redacted]' home to provide tutoring with another boy for 45 minutes once per week from mid July 2020 to mid-August using Fundations (T.167;176). I further credit her testimony and find that [Redacted] had deficits in reading as he was reading at an early Kindergarten level at the beginning of the 1^st grade (T.188) and that per the MAP testing in reading [Redacted] dropped from the 59^th percentile to the 34^th percentile (T.196). I find the failure to consider changing [Redacted]'s program and the lack of CSE evaluations to support the decision not to provide a full-time program of multi-sensory instruction impeded the parent's opportunity to participate in the decision-making process.

Claims concerning the failure to consider the full continuum of services or to provide adequate instruction, supports, and services I find the parents requested a more intensive special education program that included O-G instruction and that after the summer of 2020 the tutor had used O-G successfully. I credit the testimony and find that the parent told the team that her son was not able to read the words presented but was encouraged to use the picture clues (T.1043) and that she had advocated for a multi-sensory and a function-based approach and mentioned Wilson, an O-G program, and recalled that there was a follow-up call to amend the 1^st grade IEP, but Wilson was not added. I find that the District failed to change the program from general education to special education and this failure exasperated [Redacted]'s anxiety. The parents' attorney asserted that the March 2021 IEP reflected [Redacted]'s levels of anxiety and " [Redacted] "(IHO-Exh. XIV at 13). I agree. I credit the parent's testimony and find that the 1^stgrade teacher would send home word lists, but [Redacted] merely memorized the list of words as he was unable to decode what he saw (T.1058). I credit the parent's testimony who recalled that she had attended the September 2021 IEP meeting after her son had attended [Redacted] and recalled that the team changed his classification from OHI to LD but did not make any substantive changes and the program matched the prior program (T.1065). Testimony and evidence adduced that the hearing established that I find the failure to change the program was not denial of a FAPE.

Claims concerning ESY

I find that the parents requested ESY and I find the District representative presented no evidence to establish that the CSE considered the amount of regression during a break in instruction and the extend that [Redacted]'s dyslexia contributed to the regression. I find the failure to consider ESY impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE.

Accordingly, I find that the District did not establish that a FAPE was offered to the Student during the 2021-2022 sy and the parents met Prong 1.

Parents must establish the Second Prong (Prong 2) of the Burlington test for reimbursement in that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parent must prove that the Student will receive an appropriate educational benefit from [Redacted]'s program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "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" (Id.).

Parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or LRE under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). The credible testimony and evidence demonstrated that [Redacted] was a small structured therapeutic environment and met the [Redacted]'s academic, social and emotional needs as recommended in the Neuropsychological Evaluation (D-Exh. 55 at 19).

The District's attorney argued that [Redacted] was not the LRE and did not provide the related services of counseling and OT (T.936). The District's attorney asserted that the "Student’s anxiety was a significant area of concern, [Redacted] does not provide any counseling or behavioral therapy. Tr. 803" (IHO-Exh. XIII at 24). I find that in M.H. v N.Y. C. Dept. of Educ., 685 F.3d 217, 253 (2d Cir. 2012), the Court held that a Parent's unilateral placement was not inappropriate because it did not provide related services as the Court noted that the related services did not have to be provided during the school day.

Testimony adduced at the hearing clearly demonstrates that the [Redacted] program was a special education school for children with average to above average intelligence with a specific language-based learning deficit and that the Wilson program was structured to provide special education teaching for the entire day with O-G based explicit instruction with small classes and that the children were taught the structure of language to help them decode and help them write and that the children were grouped into cohorts of 6 (T.744-745;965). The Second Circuit addressed the importance of considering methodology in M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217 (2d Cir. 2012). It was uncontested that [Redacted] required an intensive language based multi-sensory program. The District's witnesses credibly testified that the reading model in the District's elementary school was the Wilson Fundations program to systematically teach reading and that the elementary school also used the balanced literacy approach (T.515) and the testimony established the need for [Redacted] to be taught Wilson. I find that [Redacted] received an intensive language based multi-sensory program in each academic class at Wilson. I find that the small structured therapeutic environment and met [Redacted]'s anxiety needs as I credit the expert's testimony and find that the children were grouped by similar learning needs and that [Redacted] and his [Redacted] classmates felt safe because they had the same learning challenges (T.922;981). I credit the expert's testimony and find that [Redacted] met [Redacted]'s academic needs and I find that she spoke with the [Redacted] CSE liaison of the lower school who explained that [Redacted]'s teachers used the same coding patterns with the structured materials of PAF and that [Redacted] was learning to clearly write sentences and that he progressed in math with the use of colored lined paper and a special pencil to decode the words so that he was able to understand the concepts in math (T.928). The credible testimony and evidence established that the reading, decoding and writing programs at [Redacted] were integrally linked (P-Exh. HH at 1), not only due to the fact that the all the [Redacted] teachers were required to be certified in the [Redacted] and the [Redacted]course each year (T.967), but because each teacher used the O-G based explicit instruction across all classes so that each teacher knew how to teach the program with consistency in each class (T.921-923;931;934). I credit the expert testimony and I find that the [Redacted] students were taught skills for decoding and were also taught strategies to spell the words they are attempting to decode and that all the [Redacted] teachers, ELA, math, science, and social studies), used the same coding patterns and structured materials of PAF to teach [Redacted] spelling, writing and grammar and address his articulation needs (T.927).

I conclude that the O-G multisensory instruction, as well as the review and scaffolding met [Redacted]'s language-based learning difficulty and executive functioning issues and that the Student was placed in small classes at [Redacted] with other students with similar needs helped his self-esteem.

While progress is not necessary to establish that [Redacted] was appropriate as progress is a factor to consider, I find that the [Redacted] made meaningful progress in a variety of areas. I find the Neuropsychological Evaluation conducted in April 2022, demonstrated that he made substantial progress as he had scored in September 2021, in the 5^th percentile in vocabulary and in the 1^st percentile in reading and that by the end of the 2021-2022 sy, [Redacted]'s scores improved in testing on May 2, 2022 to the 7^th percentile in reading (P-Exh MM at 1). I credit the expert's testimony and find that after completing a single year at [Redacted] that [Redacted]'s KTEA scores improved as compared to the District's Educational Evaluation and Neuropsychological Evaluation (T.907). I credit the parent's testimony and find that [Redacted] was moving through PAF program for both the 2021-2022 sy and that the April 2022 neuropsychological evaluation (D-Exh. 55) demonstrated the progress he made academically, and I credit the testimony and find that progressed in his reading ability and progressed emotionally as he was happy to go to school (T.1066).

The District's attorney asserted that [Redacted]'s anxiety worsened after [Redacted]. She asserted that the Neuropsychologist " [Redacted] " (IHO-Exh. XIII at 24). I find that [Redacted]'s anxiety was intrinsically tied to his dyslexia. I find that [Redacted] was aware that his rate of progress was much lower than his non-dyslexia peers. I credit the testimony of expert and find that [Redacted]'s high level of anxiety was addressed at [Redacted] due to the small class size and specialized program and supports (T.981). The District's attorney asserted that [Redacted] did not progress in as the Interim Director " [Redacted] " (IHO-Exh. XIII at 14).

I find that the expert concluded that [Redacted] progressed by the IOWA Language Arts and Mathematics tests, standardized for vocabulary and reading. In September 9, 2021, [Redacted] had scored in the 5^th percentile in vocabulary and in the 1^st percentile in reading and that by the end of the 2021-2022 sy, [Redacted]'s scores improved in testing on May 2, 2022 to the 7^th percentile in reading and by the end the 2022-2023 sy, [Redacted]'s scores improved to the 53^rd percentile in vocabulary and the 44^th percentile in reading (P-Exh. MM). I credit the testimony and find that the difference in scores reflected that [Redacted] had mastered the foundational skills he was taught so that by the end of 3^rd grade [Redacted] scored in the solidly average range in vocabulary, at 53^rd percentile and in the average range in reading (P-Exh. NN at 1) and progressed to the average range in vocabulary and reading (P-Exh. MM; T.950). I credit the expert's testimony and find that [Redacted] made similar gains in the [Redacted] Coding Test in Reading from reading 30 CVC words to the ability to read 75 CVC and noted that [Redacted] had no ability to recognize irregular words on April 19, 2021, and that he had learned 95 irregular works in the May 15, 2023 assessment (T.952). I find there was no evidence to support the District's attorney's assertion that [Redacted] did not progress academically.

I find [Redacted] met the unique academic, social and emotional needs of [Redacted] for the 2021-2022 sy.

Therefore, I find that [Redacted] was an appropriate placement. Based on the foregoing, I find the Parent satisfied the Prong 2.

The District's attorney asserted that the " [Redacted] " (IHO-Exh. XIII at 25). I disagree. I credit the parent's testimony and find that she decided to send her son to [Redacted] after he attended [Redacted] during the summer of 2021 for the 2021-2022 sy (T.1119) and I credit her testimony and find that while there was $[Redacted] deposit that was non-refundable she was open to an appropriate program from the District (T.1121).

I credit the parent's testimony and find that the decision to move her son to [Redacted] was difficult as she intended her son to attend the same school as his neighbors, but the negative impact on her son's self-worth over his inability to read coupled with her son being ridiculed about his reading difficulties supported her decision to send her son to [Redacted] (T.1089). I find the equitable considerations favor the parents' claim for reimbursement and the parents established Prong 3.

2022-2023 sy

The District maintained that it had provided [Redacted] with a FAPE for the 2022-2023 sy as [Redacted] was classified as LD and was recommended to be placed in an ICT classroom at PES and recommended related services of OT for 30 minutes twice in a 6-day cycle in a therapy room in a small group; individual counseling once in a 6-day cycle in the counselor's office (D-Exh. 61 at 1).

Claims concerning insufficient evaluations and inappropriate and insufficient IEP The parents maintained that the District failed to provide a FAPE for the 2022-2023 sy and as the CSE failed to conduct evaluations of [Redacted] in all areas of suspected disability and failed to consider evaluative data. The parents' asserted that when " [Redacted] P-Exh. A at 8). I find that Neuropsychological Evaluation conducted in April 2022, recommended "continued, intensive remediation in " [Redacted] " (D-Exh. 55 at 14).

I find the Neuropsychologist who conducted the evaluation participated in the May 27, 2022 IEP meeting (D-Exh. 51) and that she explained the results of her testing and recalled that she had raised concerns with the recommended program with the size of the ICT class with 20 students even with 2 teachers and was concerned with the District's methodology and intervention for reading (T.762-763). I credit the testimony and find that the use of a Wilson program was mentioned, she did not remember an explanation of how the Wilson program would be administered (T.763) and that she told the team that [Redacted] required a reading pull-out as the reading intervention to treat his dyslexia in a small group of children on exactly [Redacted]'s level to systematically go through the Wilson system with the same intensity in order for [Redacted] to succeed (T.766).

I credit the parent's testimony and find that the Neuropsychological Evaluation was conducted in April 2022 to confirm that [Redacted] was receiving the instruction he needed in terms of his dyslexia and learning disability and that she presented the team with evaluation (T.1069). I find that May 27, 2022 team departed from recommendation to continue in Wilson where [Redacted] received a full-time special education (D-Exh. 55 at 14) without providing the evaluation to support an ICT placement. I find that the lack of CSE evaluations to support the decision not to provide full-time multi-sensory instruction impeded the parent's opportunity to participate in the decision-making process. I find that without the required evaluations the IEP goals were inappropriate and significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE.

Claims concerning the lack of appropriate goals

The parents asserted that when the District failed to evaluate [Redacted] " [Redacted] "(P-Exh. A at 8). The parents further asserted that each "goal shall include evaluative criteria and evaluation procedures to be used to measure progress. Id. § 200.4(d)(2)(iii)(b)."(Id.).

The May 27, 2022 IEP contained 4 reading goals: (1) to read with accuracy a list of 10 irregular words (3 out of 4 trials over 4 weeks); (2) to read an instructional text orally with accuracy, appropriate rate and expression at 80 words per minute with 95% accuracy(3 out of 4 trials over 4 weeks); (3) to answer 3 inferential comprehension accurately after reading a text on his instructional level(3 out of 4 trials over 4 weeks) and (4) to utilize a decoding strategy to read 10 words with digraphs, blends and suffixes accurately (3 out of 4 trials) by the end of marking period(D-Exh. 61 at 7).

I credit the testimony of the Neuropsychologist who reviewed the goals from the May 27, 2022 IEP and opined that the goals did not equate to a systematic program to remediate the dyslexia and the criteria of measuring progress 3 out 4 trials over 4 weeks was not recommended to remediate dyslexia systematically and that the Wilson program consistently as measured by PAF as the Wilson students were checked constantly on their ability to master "the code" and that the IEP reading goals were only helpful for a student who was able to learn to read naturally regardless of the reading methodology (T.770). I credit the testimony of the expert who stated that [Redacted]'s list of goals for spelling and decoding strategies was enormous versus the goal to read 10 irregular sight words with accuracy was not specific as there was no way to know the grade level of the sight words and opined that to read at the rate of 80 words per minute was fast for [Redacted] who had oral motor problems (T.915). I credit the testimony and find that the decision to replace the special education teacher for Resource Room for 45 minutes per day with the special education teacher and regular education teacher in an ICT class was not appropriate as there was no explanation of the academic abilities of the other children in the ICT class (T.917). I find the academic goals were inappropriate and significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE.

Claims of no methodology based on peer-reviewed research

The parents asserted that in "[Redacted]" (P-Exh. A at 9). I credit the parent's testimony and find that she and the Neuropsychologist participated in the May 2022 IEP meeting and reported on the progress that her son made with multi-sensory skills phonics-based programs at [Redacted] using PAF with the CSE team (T.1072). I credit the parent's testimony and find that she was asked what level [Redacted] was at using PAF to equate the level with F&P and opined that to equate PAF with F&P was to compare apples to oranges (T.1073). I credit the testimony the expert and find that after 2 years of direct, explicit, multi-sensory instruction from specially trained special education teachers with a common cohort enabled [Redacted] to progress to the average range in vocabulary and reading (P-Exh. MM;T.950). I credit the testimony and find that there was no discussion of the methodology of PAF. I find the lack of a multi-sensory phonics-based instruction during the 2022-2023 sy was a denial of a FAPE.

Claims concerning the failure to consider the full continuum of services or to provide adequate instruction, supports, and services The parents' attorney asserted that while the "present levels in the 2022-23 IEP reported [[Redacted]'s] level in the “Preventing Academic Failure” program. Notwithstanding [Redacted]'s success with that program, the District did not discuss continuing it in the 2022-23 school year. T 500-01"(IHO Exh. XIV at 21). I agree and find that the District declined to consider placement at [Redacted].

Claims concerning parental participation

I find that the parents presented ample testimony and evidence to establish that the procedural inadequacy of the IEP impeded in their participation of in the decision-making process. I find that without adequate evaluations for the IEP goals were inappropriate and significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE during the 2022-2023 sy. I credit the parent's testimony and find that the CSE team recommended an ICT class and OT and counseling only for the 3^rd grade (T.1075). I find that she told the team that the ICT class size was too large and there was no discussion of the methodology of PAF or what reading program or writing program would be offered as a support and no comment to the TDN letter that was sent to state that [Redacted] would attend [Redacted] for the 2022-2023 sy. I credit the testimony and find that [Redacted] felt very comfortable with [Redacted] in 3^rd grade and loved going to school (T.1077). I find that the evidence and testimony adduced at the hearing did not establish that the CSE team considered the parent's objection to the ICT class and the ICT recommendation was pre-determined.

Accordingly, I find that the District did not establish that a FAPE was offered to the Student during the 2022-2023 sy and the parents met Prong 1.

Parents must establish Prong 2 of the Burlington test for reimbursement in that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the parent to provide special educational services to the child is not State approved as a school for children with disabilities is not dispositive of the parents' claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parent must prove that the Student will receive an appropriate educational benefit from [Redacted]'s program. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "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" (Id.).

Parents' placement may not be held to certain requirements that Districts are held such as teacher licenses or least restrictive environment under Frank G. and Gagliardo and the unilateral placement is a not perfect placement. M.S. ex rel S.S. v Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000). The credible evidence demonstrated that [Redacted] was a small structured therapeutic environment and met the Student's academic, social and emotional needs as recommended by the Neuropsychologist (D-Exh. 55 at 14; T.770).

The credible testimony established that for the 2022-2023 sy, the Student was placed at [Redacted] in a small, full time special education environment for students with average to above average intelligence without behavior issues and who were diagnosed with language-based disabilities, and who struggled with reading and writing due to dyslexia (T.936;965). The credible testimony established that [Redacted] as a special education school for children with average to above average intelligence with a specific language-based learning deficit and opined that the Wilson program was structured to provide special education teaching for the entire day with O-G based explicit instruction with small classes and that the children were taught the structure of language to help them decode and help them write and that the children were grouped into cohorts of [Redacted] (T.965), with similar learning needs and that as the intensity of the instruction increase the [Redacted] children felt safe because they were able to learn with others with the same learning issues (T.922;981).

The credible testimony indicated that [Redacted]'s teaching staff was trained in IMSLEC as well as Phonological Awareness and Skills (T.967) and was trained in O-G, a structured, sequential and multisensory instructional program to address the needs of students with language-based disabilities in small classrooms with a student-teacher ratio of 6:1 (T.965).

I conclude that the O-G multisensory instruction, as well as review and scaffolding met [Redacted]'s language-based learning difficulty and executive functioning deficits and self-esteem issues and that he was placed in small at [Redacted] with other students with similar needs in dyslexia as recommended by Neuropsychologist (T.766) and that he was placed in classes with children who learned at his rate so that he did not feel different and unable to learn (T.936-937).

Credible evidence further established that [Redacted]'s unique special education needs were met in [Redacted] in a self-contained specialized school environment focused solely to work with learning disabled students and that he was grouped with similar peers as recommended and that [Redacted]'s teachers were trained to be O-G master teachers and PAF master teachers so that each student received multisensory instruction in each class (T.934) and were certified in the [Redacted] course each year so that [Redacted] received reading and writing instruction for the entire day with O-G based explicit instruction within a small class (T921-923;931;934).

I conclude that [Redacted] met [Redacted]'s unique academic, social and emotional needs as recommended in the Neuropsychological Evaluation and that his low self-esteem was addressed at [Redacted] due to the small class size and specialized program and supports and I credit the parent's testimony and find that her son regained his confident confidence at [Redacted] (T.1066-1068).

While progress is not necessary to establish that [Redacted] was appropriate as progress is a factor to consider, I find that [Redacted] made meaningful progress in a variety of areas.

The parents' attorney asserted that the Neuropsychological examination conducted in June 8, 2023, (P-Exh. LL) established that [Redacted] made substantial progress in passage comprehension (48^th percentile compared to 4^th percentile in 2022), in writing samples (66^th percentile compared to 44^th Percentile in 2022), in word attack (50^th percentile compared to 15^th Percentile in 2022), in spelling (29^th percentile compared to 12^th Percentile in 2022) (IHO-Exh. XIV at 28). I agree. The parents' attorney asserted that he progressed on the Feifer Assessment conduced in 2023 in isolated word reading fluency (25^th percentile compared to 3^rd Percentile in 2022) in irregular word reading (25^th percentile compared to 5^th Percentile in 2022) and in oral word fluency (30^th percentile compared to 3^rd Percentile in 2022) (IHO-Exh. XIII at 28). I agree.

I conclude that [Redacted] met [Redacted]'s academic, social and emotional needs as recommended in the Neuropsychological Evaluation and that [Redacted]'s low self-esteem was addressed at [Redacted] due to the small class size and specialized program and supports.

Prong 3 of the test for tuition reimbursement is whether the equities favor the Parents' position. Tuition reimbursement to be reduced or denied if the parents (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the parent informed the CSE that they intended to enroll their son at [Redacted] for the 2022-2023 sy when no appropriate program/placement was offered (D-Exh. 62 at 1) after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). The District's attorney asserted that the equities did not favor the parents and argued that "for the 2022- 2023 school year in December 2021, five months before the CSE even convened, Parents indicated that they were sending the Student to [Redacted] for the 2022-2023 school year" (IHO Exh. XIII at 12). The parents attorney asserted that the parents "[Redacted]" (IHO-Exh. XIV at 30). I credit the parent's testimony and find that while there was $[Redacted] deposit that was non-refundable she was open to an appropriate program from the District (T.1121).

I find the equitable considerations do support the parents' claim for reimbursement.

ANALYSIS

Section 504 required the District to provide a FAPE to a student who qualified as an individual with a disability (34 CFB § 104.33(a)). I find that [Redacted] met the legal standard under Section 504 as he had a physical or mental impairment that substantially limited 1 or more major life activities and he was the same age as his nondisabled children who received educational services from the District and had a right to a FAPE under IDEA. Section 504 and the IDEA have parallel requirements on schools to provide special education and related services. See B.C. v. Mt. Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016); R.B. v. N.Y.C. Bd. of Educ., 99 F.Supp.2d 411, 419 (S.D.N.Y. 2000) (citations omitted); see also 34 C.F.R. §§104.33–37. Section 504 prohibits discriminatory conduct and afford parents due process rights/hearings (see §104.4(b)(ii)-(iii),104.36). Section 504 provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation. I find the failure to consider the need for ESY for the contested sys was a violation of Section 504. Moreover, I find the denial to provide multisensory instruction in all subjects for a student with a specific learning disability amounted to a failure to provide reasonable accommodations was a violation of Section 504 and the failure to address interfering behaviors was a denial of reasonable accommodations. I find further that the failure to find an appropriate placement was a violation of Section 504.

The parents' attorney asserted that when "[Redacted]" (IHO-Exh. XIV at 24). I agree.

The parents requested compensatory education for the deprivation of a FAPE for the 2020-2021 sy "in an amount to be determined at hearing" (P-Exh. A at 12).

The parents' attorney specified in the Closing Brief that they sought compensatory education for 90 minutes per school day from January 5, 2021 through that end of the 2020-2021 sy in the form of "[Redacted]"(IHO-Exh. XIV at 30) for the District’s failure to provide the Student with a FAPE for the 2020-2021 sy.

Compensatory education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. 11 Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C. 2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132.

The parents are seeking compensatory services for missed services for the 2020-2021 sy. To ensure a student deprived of FAPE is fully-compensated, Courts generally utilize two approaches for calculating the amount of compensatory education awarded: (1) the quantitate approach (i.e., “hour-for-hour approach”), and (2) the qualitative approach (i.e., “flexible approach” also called the “Reid-approach”.

I find that the parents provided no testimony or evidence that reflected [Redacted]'s current education abilities and needs. There was no testimony or evidence to establish the amount of compensatory education under either the Reid-approach or the hour-for-hour approach without a baseline of [Redacted]'s current education ability and needs. The credible testimony and evidence established that by the end of the 3^rd grade [Redacted] scored in the solidly average range in vocabulary, at 53^rd percentile and in the average range in reading (P-Exh. NN at 1) and in the average range in vocabulary and reading (P-Exh. MM;T.950). I find that the parents provided no evidence or testimony whatsoever during the hearing regarding the amount or type of compensatory education that [Redacted] should receive to compensate for the lack of a FAPE for the 2020-2021 sy except to state that [Redacted] was entitled to 90 minutes of research-based reading instruction per school day from January 5, 2021 through the end of the 2020-2021 sy. I find that the mere request for services was insufficient to establish the amount of compensatory services needed. Accordingly, the requested reward for compensatory services is not warranted. In Appeal No. 17-069, the SRO noted that compensatory tutoring services represent a remedy chosen by the parents and parents have some initial burden to articulate their requested relief.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

that that the District has failed to provide [Redacted] with a FAPE for the 2020-2022, 2021-2022 and the 2022-2023 sys and violated Section 504 as the Student was subjected to discrimination based upon his disability and that [Redacted] was appropriate and that the parents acted reasonably and the equities favor the parents;
that the District provide tuition reimbursement to the parents for the 2021-2022 and the 2022-2023 sys for [Redacted]'s full tuition.

SO ORDERED.

DATED: January 22, 2024

/s/ Linda Agoston

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 A – REDACTION IDENTIFICATION PAGE

Student’s Name:^[4]:[Redacted]

Date of Birth: [Redacted]

School District: [Redacted] CENTRAL SCHOOL DISTRICT

Parent’s Name: [Redacted]

Enter additional text as needed to identify witness titles and names using above format. Press “enter” after each entry.

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit	Document	Date	Pages
	Due Process Complaint	1.5.2023	12
	Progress Report	12.2019	1
	Kindergarten Report Card	6.2020	4
	Progress Report	3.2021	1
	Pediatrician Confirmation of Motor Delay	4.16.2021	1
	[Redacted] School Contract	4.28.2021	6
	[Redacted] Testing	9.9.2021	14
	[Redacted] Quarter 1 Progress Report	2021.22	6
	Response to Prior Written Notice	10.5.2021	1
	Amendment to IEP Meeting Minutes	10.5.2021	3
	[Redacted] Quarter 2 Progress Report	2021.22	6
	[Redacted] School Contract	2.8.2022	4
	Speech and Language Evaluation	5.26.2022	9
	Audio of IEP Meeting	5.27.2022
	Iowa Test Report	6.2022	4
	Speech and Language Therapy Recommendation	7.1.2022	1
	[Redacted] Quarter 4 Progress Report	2021.22	6
	Speech and Language Re-evaluation	9.22.2022	8
	[Redacted] School Tuition Statement 2021-22	11.18.2022	2
	[Redacted] School Tuition Statement 2022-23	11.18.2023	2
	[Redacted] Quarter 1 Progress Report	2022.23	5
	[Redacted] Quarter 2 Progress Report	2022.23	6
	Speech & Language Evaluation	6.4.2018	5
	withdrawn	8.9.2018	4
	withdrawn	3.14.2019	4
	Visual Evaluation	10.8.2020	4
	Preschool Evaluation	5.24.2018	2
	Physical Exam	1.16.2018	3
	Social History Evaluation	6.17.2018	3
	Psychological Evaluation	6.17.2018	7
	Occupational Evaluation	5.24.2018	7
	Preschool Report	5.30.2018	4
	IEP	6.27.2018	13
	[Redacted] Quarter 3 Progress Report	2021.22	6
	[Redacted] Quarter 3 Progress Report	2022.23	6
	[Redacted] IOWA Test Grid Grade 3	2021.22	1
	F & P Scoring Chart	Undated	1
	Neuropsychological Evaluation [Redacted], Ph.D.	6.08.2023	3
	End of Year Testing Grade 3	5.15.2023	1
	IOWA Testing Explanations	06.2023	4
	Writing Sample	Fall 2020	1
	Writing Sample	10.04.2020	1
	Writing Sample	3.16.2021	1
	Writing Sample	6.12.2023	1
	[Redacted] Quarter 4 Progress Report	2022.23	6
	Email chain to/from parents and [Redacted], Psy.D.	11.20.2020	6

DOE’S EXHIBITS

Exhibit	Document	Date	Pages
1	Annual Review Meeting Notice for 3/26/2020	2/10/20	2
2	Individualized Education Program (IEP)	3/26/20	10
3	Prescription for Occupational Therapy Services	7/25/19-4/16/20	2
4	Progress Report for IEP Goals and Objectives (2019-2020)	3/9/20	2
5	Prior Written Notice (Proposed Continuation for Special Education)	5/17/20	2
6	Progress report for Goals and Objectives (2019-2020)	6/22/20	2
7	Prior Written Notice (Proposed Reevaluation and Request for Consent)	8/31/20	3
8	Signed Consent Form for Reevaluation	9/15/20	1
9	E-mail from the parent to [Redacted]	10/1/20	1
10	E-mail exchange between [Redacted]and the Parent	10/5/20-10/9/20	1
11	Email from the parent to [Redacted]	10/13/20	1
12	E-mail from the parent to [Redacted]	10/22020	1
13	E-mail from the parent to [Redacted]	11/18/201	1
14	E-mail from the parent to [Redacted]	12/1/2020	1
15	E-mail from the parent to [Redacted]	12/14/2020	1
16	E-mail from the parent to [Redacted]	12/15/2020	1
17	E-mail from the parent to [Redacted]	1/13/2021	1
18	E-mail [Redacted]to parent (Readers Workshop)	2/21/2021	1
19	Re-evaluation report	9/16/2020	7
20	Updated social history	12/9/2020	2
21	Occupational therapy reevaluation	2/10/2021	4
22	Educational evaluation	3/3/2021	11
23	Progress report for IEP goals and objectives (2020 -2021)	12/3/2020	3
24	OT Progress Monitoring (2020 -2021)	9/17/2020-6/23/2021	5
25	Purchase Elementary school grade 1e report card	Undated	4
26	Revaluation/annual review meeting notice for March 15, 2021	2/17/2021	2
27	IEP	3/15/2021	9
28	IEP	3/15/2021 (Updated 8/30/2021)	9
29	E-mail exchange between [Redacted]and the parent	3/15/2021-3/16/20212	2
30	Prior written notice (proposed amendment to IEP without a committee meeting)	3/21/2021	2
31	Prior written notice (proposed amendment to IEP without a Committee meeting)	3/24/2021	3
32	Signed IEP or IESP Amendment consent form	3/24/2021	2
33	IEP (Amendment the remainder of that 20/21 school year	3/24/2021	10
34	Prior written notice proposed continuation of special education	3/26/2021	2
35	Calculus monitoring	4/2021-6/2021	2
36	E-mail from the parent to [Redacted]	4/12/2021	1
37	E-mail from the parent to [Redacted]	4/19/2021	1
38	Email from the parent to [Redacted]	5/6/2021	1
39	E-mail from the parent to [Redacted]	5/19/2021	1
40	Progress report for goals and objectives (2021-2022)	7/6/2021	3
41	District email to parents attaching the 2021-2022 IEP	7/14/2021	1
42	Prior written notice	7/14/2021	2
43	Ten-day notice of unilateral placement	8/10/2021	4
44	Parent letter to district for copy of student's full educational record	8/25/2021	2
45	Parent’s notice of intent to place at the [Redacted] School	8/26/2021	1
46	Director of Special Education & Support Services Letter Response (to Parents' Ten-Day Notice of Unilateral Placement)	8/30/2021	1
47	Program review meeting notice for 9/15/2021	8/31/2021	2
48	IEP	9/15/2021	11
49	Prior written notice	9/21/2021	2
50	Letter from parent to director of special education and support services (behavior rating scale)	10/18/2021	1
51	Letter from parent to director of special education and support services (revised 2021-2022 IEP)	10/18/2021	3
52	District planning for the 2022-2023 school year form	12/1/2021	1
53	Parent signed district planning for 2022-2023 school year form	12/8/2021	1
54	The [Redacted] School 2021-2022 Quarter 3 Progress Report	Undated	6
55	Neuropsychological evaluation by [Redacted]	4/20/2022-4/23/2022	22
56	Annual review meeting notice for 5/9/2022	2/17/2022	2
57	Annual review meeting notice for 5/9/2022	2/17/2022	2
58	Annual review meeting notices for 5/27/2022	4/28/2022	2
59	Annual review meeting notice for 5/27/2022	4/28/2022	2
60	Annual review meeting notice for 6/3/2022 meeting	4/28/2022	2
61	IEP	5/27/2022	15
62	Ten-Day notice E-mail from parent to school district	6/14/2022	1
63	Letter to parents from Director of Special Education and Support Services	6/14/2022	1
64	Prior written notice (Proposed Continuation for Special Education)	8/2/2022	2
65	Speech and Language Evaluation	3/12/2019	7
66	IEP	4/10/2019	10

IHO’S EXHIBITS

Exhibit	Document	Date	Pages
I	Appointment Letter	1/11/23	1
II	Decision on Extension	2/21/23	1
III	Decision on Extension	4/17/23	1
IV	Decision on Extension	4/25/23	1
V	Decision on Extension	6/16/23	1
VI	Decision on Extension	6/27/23	1
VII	Decision on Extension	7/26/23	1
VIII	Decision on Extension	8/19/23	1
Corrected VIII	Decision on Extension	8/19/23	1
XI	Decision on Extension	9/18/23	1
X	Decision on Extension	11/1/23	1
XI	Decision on Extension	1215/23	1
XII	Decision on Extension	1/8/24	1
XIII	District's Closing Statement	1/8/24	26
XIV	Parent's Closing Brief	1/8/24	31

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] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

Impartial Hearing Decision

JURISDICTION

BACKGROUND

ISSUES

FINDINGS OF FACT

CONCLUSIONS OF LAW

ANALYSIS

ORDER