Impartial Hearing Decision

X

STATE OF NEW YORK

DEPARTMENT OF EDUCATION

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In the Matter of the Proceeding brought by the PARENT on behalf of their child, The Student, [REDACTED], pursuant to the IDEIA

And the

[REDACTED] FILE #599620

[REDACTED]

Hearing Officer’s Finding of Fact and Decision

INTRODUCTION & PROCEDURIAL HISTORY:

I was appointed as the impartial hearing officer under a Due Process Complaint dated May 11, 2023, (D3)1, by the above-referenced parent (“Petitioner” and or “PARENT”) for their child, (“STUDENT”)2 against the [REDACTED] (“Respondent” and or “DISTRICT”). The hearing was requested, pursuant to the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), §§1415 (f) & 1412 (a) (10) (C) and Section 504 of the Rehabilitation Act. The Parent’s counsel alleges, amongst other things, that the District failed to provide a free appropriate public education (“FAPE”) to the Student, namely for its placement during the 2021-

1 See Due Process Complaint dated May 11, 2023 as District’s Exhibit D 3. References to the hearing exhibits submitted by the Impartial Hearing Officer are cited with the prefix “H” followed by the appropriate exhibit number.

References to hearing exhibits submitted by the Parent are cited with the prefix “P” followed by the appropriate exhibit letter. References to the hearing exhibits submitted by the District are cited with the prefix “D” followed by the appropriate exhibit number. Specific transcript references are noted as “Tr. ” followed by the Page Number then a forward slash for the Line number, for example “Tr. 3/13”.

2 For confidentiality, the student, witnesses, and parties shall be referred to according to their role. See attached key.

2022, 2022-2023 school years, and the recommended program for the 2023-2024 school year. D

3. The Student is attending a private school for his 4th grade school year.

The District responded to the Parent’s Due Process request (“DPC”) on June 8, 2023 (D

2) and August 22, 2023 (D 1). Upon appointment, a pre-hearing conference was held on 6/28/2023, and again on 7/20/2023. After that, the hearing commenced for 12 days held on 9/11/23, 9/14/23, 10/3/23, 11/8/23, 11/15/23, 11/16/23, 12/5/23, 12/14/23, 1/8/24, 1/17/24, 1/29/24 & 1/31/24. Appended to this decision is a list of persons in attendance comprised of the parties and witnesses noted. The record close date for this matter was March 4, 2024 (IHO 4 & IHO 5) with the decision date set for April 1, 2024.

BACKGROUND

This matter involves a Student, now a 4th-grade student, who is known to the District from pre-school and was classified as a student with a disability as defined under the IDEIA, specifically Learning Disability on December 6, 2023. D 23. As background, according to the Parent, during the student’s kindergarten year, which was during the Pandemic, and who was home with the Student, testified that she was concerned that the Student was not clicking with reading. Tr. 13/2509. In 1st grade, it was reported the Student started the school year at a Fountas & Pinnell (F&P)3 level A in reading. In October 2020, the Student’s 1st grade, the Parent, also a special education teacher employed by the District, had requested Academic Intervention Services (“AIS”), the District responded that the classroom teacher, the Student is being instructed with extra support and his reading level was higher than those being pulled out for AIS. P GG. At the end of 1st grade the Student’s report card indicated level4 3’s for reading, listening, math, social studies, and science and 2’s for writing – writes legibly and language – demonstrates competency with grammar usage, capitalization and punctuation. P C

2021-2022 - The following school year, the Student’s 2nd grade, the Student was a level

H; he started receiving AIS on 4 x 6 day cycle for reading and writing. D 45 dated 10/8/21. AIS commenced on 10/12/21. Two weeks later, October 26, 2021, the Student was privately evaluated by a Speech & Language (S&L) Therapist (D 44) and the findings were: (GFTA-3) the Student scored below average to average; on the CELF-5 where expressive and receptive language skills are not an area of concern. Parents reported a delay in articulation and phonological skills. It was recommended S&L 2x per wk at 30min whether it was 1:1 or group, the evaluation did not report for articulation5. Shortly thereafter, the Parent requested an initial evaluation, and the District performed the evaluations of the Student (D 43, D 42, D 41 & D 40) for a referral to the Committee for Special Education (“CSE”) due to her concerns. D 38, the

• • 1. notice of the CSE where the Student did not meet eligibility for Special Education. The Parent reported that the Student is becoming aware of his deficits when compared to peers and it is having a social/emotional impact on him. The 2nd-grade classroom teacher collaborated that the Student will “shut down” with academic challenges, particularly in reading. His reading is at F&P level J, which shows progress. It was noted by the AIS teacher that he is making progress; some letter and numerical reversals; impulsive, distracted, and off-task tendencies reported and required frequent redirection. Parent reported that the Student was being evaluated by a neurologist for Attention Deficit Hyperactivity Disorder (ADHD). Testing indicated deficiencies

4 Levels noted in Report Card academics: 4 – exceeding standards; 3 meeting standards, 2 approaching standards and 1 not achieving the standards. For behaviors related to learning E - excellent, G - good, S - satisfactory, I - improving & N – needs to improve.

5 No reports made by the Parent, Classroom and AIS teachers indicated any concerns with articulation.

in phonemic proficiency and sentence composition while word reading and reading comprehension were “solidly” average, as were his Math scores. Low average in pseudo-word decoding. Parent wanted AIS to focus on decoding rather than comprehension.

On the cognitive evaluations, the Student demonstrated high visual-spatial processing, fluid reasoning, and processing speed; with average scores in perceptual speed, deductive reasoning, and pattern recreation. These skills may help the Student speak and write in an age-appropriate manner, generalize known rules/concepts to novel problems – keep up with class instruction, perform cognitive manipulation and quickly store newly learned information; however, the Student showed below average difficulty in perceiving abstract stimuli and inductive reasoning; meaning he struggles with bottom-up processing. In math (50%) and reading composite (73%) scores were within the average; his ability to read and real and made-up words were low average. His writing expression core – low average range while performing average in spelling but very low on sentence composition (3%). It was noted his production of writing was limited; did not write in complete sentences and demonstrated inconsistency, incorrect capitalization and punctuation. Needs were reported in the areas of spelling patterns in written words, compose logical and sequential paragraphs; utilize correct capitalization and punctuation. D 40 Psychological evaluation dated 12.21.21 & 12.22.21 noted the purpose as due to concerns in reading and writing and whether he meets the criteria for a learning disability. At home, it was reported as low frustration level, low self-esteem, and non-compliance. The

Student is receiving private psychotherapy. The evaluator noted that the Student “exhibited typical levels of conversational proficiency, self-confidence, cooperation, attentional control/stamina, and energy and demonstrated persistence through difficult tasks.” 1/Id. It revealed significant differences in his broad intellectual functioning skills. His full-scale intelligence quotient (FSIQ) could not be calculated therefore the evaluator provided an analysis of the specific task performance. Fluid reasoning was tested and the Student revealed average ability in deductive reasoning; his inductive reasoning was considered a weakness. Reports on the BASC by the mother (the classroom teacher did not report) indicated that for externalizing, he engages in a considerable amount of aggressive behavior, almost always argues, and sometimes throws/breaks things when angry, manipulates others, and hits other children. For internalizing, the Student almost always worries about making mistakes and is often worrisome, fearful, and nervous about what others think of him. At the time, it was reported that the Student had an age-appropriate ability to sustain attention, listen to instructions, and display logical and coherent thought and action patterns. Overall, the testing revealed that the Student demonstrated proficiencies while struggling to utilize inductive reasoning and use visual-motor integration to manipulate abstract visual images. D 41 Classroom observation during a Math lesson showed a student following instructions; acting appropriately; sitting in his chair, fidgeting with his pencil and eraser, participating, and providing the correct answer during a lesson when called upon. A CSE was held on January 3, 2022, and the CSE declined to classify the Student with a disability. D 39.

After that CSE, the District provided Orton Gillingham (“OG”) non-mandated 3x cycle from January 2022 to March 2022 and the OG teacher noted some weakness with encoding but not decoding; during lessons was able to read words in isolation and text with fluency; Gallistel Ellis6 did not show weakness; most words missed were nonsense words. It was recommended OG support be discontinued as of 3/4/22. pg. 1 D 31.

6 Gallistel Ellis is another assessment tool used by the District. It measures decoding. D 9.

The D 31 2nd Grade Classroom Teacher and 2nd grade AIS teacher conferences showed that the Student needs to work on reading through the words and monitoring his reading; no self-correcting when he makes a miscue and comprehension is adequate. Later in March, his F&P reported at level K; making progress with his motivation, focus, and attitude towards reading inconsistent, has improved; rushes when reading; very little self-correcting; literal comprehension is strong with both fiction and non-fiction; inferencing and beyond inconsistent;

An occupational (D 36) and vision therapy evaluations (D 35) were subsequentially performed. Assessment of Visual Perceptual Skills indicated an average range. He scored low in form consistency and sequential memory; when assessed informally in those same areas with compensation skills the Student did well. D 36 OT evaluation dated 2.16.22. Other than the Test of Visual Motor Skills (low average), the Student performed on average. D 37.

On June 23, 2022, the CSE re-convened to determine whether the Student met the criteria for special education. The CSE reviewed all evaluations previously performed, along with the writing sample, My Favorite Book (D 34), iReady reading & math diagnostic (D 33), Spring 2nd grade class report (D 32), and AIS report (D 31), which indicated an F&P level L (progressed from H to L that school year), D 36 & D 37. In addition, updated reporting by the 2nd grade classroom teacher, AIS, and the 2nd grade school psychologist, who checked in on the Student during that school year.

The District declined to classify the Student under the IDEA (D 28); however, based upon the Parent’s report of the Student’s diagnosis of ADHD7, along with the 504 members agreeing that the Student would benefit going into 3rd grade with supplementary aids and services, program modifications, and accommodations, the District provided a Section 504 plan. See D 27. It noted special seating, opportunities for movement, refocusing & redirection, a positive reinforcement plan (requires frequent reinforcement of positive and prosocial behavior), along on-task focusing prompts for all tests.

2022-2023 School Year - Following 3rd grade, the Student continued to receive AIS services. D 7 the AIS report indicated F&P level M during November/December 2022. The Parent had the Student privately evaluated by a neuropsychologist, who performed an education report on November 30, 2022, when the Student was [REDACTED] years of age. D25 indicated that the Parent was concerned about his academic levels relating to reading and writing; the Student had ADHD8; reviewed the District’s previous evaluations and performed a Wechsler Intelligence Scale (WISC) 5th Edition Subtest (Information75%, Comprehension 98% & Picture Concepts 95%); the 3rd Edition Subtest (9%); Bender Kopitz (age 8.6 to 8.9) and Recall (Good Form Level); the Rosner Test of Auditory Analysis (1st Grade level); the Gray Oral Reading 5th Ed Form B (84SS/14%) and Silent Reading Test (80SS/9%/1st GE). A recommendation was “[p]rogram planning to address [Student’s] deficits in reading and writing skills. He needs to be classified as Learning Disabled and provided an IEP that allows for proper remediation and integrations of remedial techniques and strategies in the mainstream classroom.” 11/D 25. The Student’s diagnosis was specific reading disorder, disorder of written Expression, and ADHD, and requires, amongst other things, daily OG. 13/D 25 also recommended that the District also consider school settings outside their immediate jurisdiction, and or private OG instruction in reading and writing. Other items included: The Student to participate in a daily intensive program offering proven multi-sensory reading and writing program, such as OG – daily remediation resulting in skills development not only getting through daily classroom material with clearly established goals for each tutorial session with cooperation among tutor, teacher, and parents; and to be coordinated with his classroom teacher; a structured writing program with a visible list of sentence starters, endings, and conjunctions, work on expanding sentences and use OG writing; extended time (1.5); teachers be aware of his disability dyslexia and the Student to be encouraged to practice skills and strategies; copies of classroom notes; homework – should be quality not quantity – with little help or intervention from his parents; receive private OG reading and writing; share with the psychiatrist9; and the private evaluator mentioned available to share these results.

On December 6, 2022, CSE reviewed, in addition to D 25 with the Private Neuropsychologist, D 24 3rd grade classroom teacher report dated 12/02/22 (overall math is his strength; showing improvement in reading; uses going back to find evidence to answer questions; writing is more challenging – wants to be finished quickly; impacts his spelling and conventions;

• when takes his time, his work is better and working on organizing ideas and adding details.

Quiz/test scores reflected higher scores in math - overall passed multiplication fact fluency quizzes; iReady Math Numbers & Operations grade 2 and Geometry early 3); ELA fiction and non-fiction range from 1.5 to 2 – struggled/very challenged with spelling, capitalization, and punctuation; F&P Instructional M; iReady reading overall early 3rd grade with Phonological, Phonics and High Frequency were reported: “tested out”. The Student enjoys coming to school; is ready to learn; prefers working with a partner; can be competitive; upset when not winning and exaggerates information. 3/D 24. The Student’s 1st term report card indicated 2’s for reading; 1’s for writing 2’s & 3’s for math. 1/P U. The AIS Reading reported F&P Instructional level M

9 No record whether the Parent shared with the Psychiatrist.

(slightly below at the end of 2nd grade). At that level, accuracy was 96% with comprehension 6/9 and his fluency fluctuates; makes miscues as he goes along, including visual miscues. The Student can figure out difficult words; and can self-correct independently at times; however, requires prompts to re-read; the ability to use strategies to figure out difficult words; needs time to process. It was noted that his comprehension was his strength. It was reported that the Student, when not getting the story has to look back – “I didn’t get it at first and had to look back and well I don’t really like doing that …looking back.” 5/Id. Writing, although worked on and not a focus of AIS Reading, encoding is difficult for him. It was reported that he is “capable, but needs prompts, extra teacher support, and rewriting to help with his encoding and writing skills. While [the Student] does struggle in certain academic areas, it has appeared in the school setting that [the Student’s] attention, impulsivity, stamina, and motivation, while improving, also factor into his academic progress.” 5/D 24. It did note that the Student was participating more and making progress with his reading. Further, the AIS teacher reported that the Student is sweet, very respectful; responds quickly to redirection; and reluctant to work on a skill; however, through repetition and the same academic language and prompts, the Student is applying what he has been taught over the years. The Student gets along well with peers but can get anxious, upset, and emotional when things don’t turn out in his favor. It was noted a seat-sharing incident where the Student agreed but was obviously angry and upset; can embellish; his frustration tolerance for reading improved; likewise same in social situations but needs to be kept an eye on. With assistance, he can regulate emotions, which is a huge improvement from last year but still needs to be kept an eye on. The Makerspace teacher, grade 2, indicated that he enjoys the class, however, tends to be concerned with others; is hard on himself and gets frustrated easily; gets along with peers; mixed results with collaboration – if the project doesn’t work the Student will shut down leaving his partner with the bulk of the work. 6-7/Id. The Art teacher expressed wonderful student; may get upset when work is not coming out the way he intended; has matured this year and well well-liked by his peers. 9/D 24. Likewise, the FLES teacher reported rarely for the criteria “demonstrates frustration tolerance”; the other criterion was most of the time or all of the time. Id. Just back to school, D 26 9.6.22 writing exercise going into 3rd grade shows his letter writing awkward containing misspelled words and lacking punctuation, i.e., missing some periods.

CSE classified the Student with a disability, specifically a learning disability relating to reading and writing. D 23. The Student received daily OG in reading and writing starting 12/13/22, use of a visible list of sentence starters, endings, and conjunctions (in the classroom & during OG); provided extended time, use of graphic organizer, copies of class notes if needed, and modified homework. D 23.

On January 4, 2023, the Parent had the Student assessed by the Private School. The Test of Coding Skills scores ranged from multi-syllable with endings 36% to 75% scores for closed syll-single cons. The summary indicated overall Total Regular Words Accurate 62%; Total Regular Words Automatic 57% and Total Irregular Words 85%. Other tests were given to the Student with various scores WRAT 45%; Gray Oral Reading Test Rate 25%; Ekwall/Shanker Reading Inventory (listening/comprehension only – Potential 3rd grade: Rapid Automatic Naming (RAN) 47% to 81% and the contained writing sample, which revealed printed words with capitals, a variation of misspelling; and no periods. Ex. P L.

On March 1, 2023, the CSE convened for the 2023-2024 school year to review the Student’s progress, like the I Ready results (Tr. 2592), along with updated teacher reports (D 21). An IEP was developed. P N. Thereafter, on March 21, 2023, the Parent sent a ten (10) day letter indicating that they are placing the Student privately and seeking tuition reimbursement. D 20.

In response, on April 5, 2023, the District convened another CSE for the Student and it generated 2 IEPs for the rest of the Student’s 3rd grade school year (D 19) and the Student’s 4th grade year (D 17). The report card of the time indicated that in areas of math, science and social studies his grades were 3 – meeting standards and his scores in reading and writing were 2 – approaching standards. D6. The AIS report D7 for that period indicated level O and, in sum, stated read with a fast rate, mumbled at times when reading, and made careless errors. Gallistel Ellis results indicated: cvc words 96%, closed syllable with digraphs & blends 100%, Silent e, open syllables 87%, soft c/g 80%, vowel teams 96%, Vowel-R 80%, short vowel, ar, two syllable words 80% and phonetically irregular words 100%. Acadience Oral Reading Fluency10 (ORF) results: 95 words correctly throughout the 3 passages with 95% accuracy; Alex is considered below benchmark for accuracy, and as per Acadience strategic support is not warranted. 2/D 7.

2023-2024 School Year

For his 4th grade, the CSE recommended ESY reading and writing instruction for the summer going into 4th-grade small group (2:1) to wit the Student attended and it was recommended resource room small group. D 4. The iReady11 scores showed improvement of 55 pts since the previous time. His writing skills were emerging. It was discussed that the Student needed more assistance in writing and the District originally offered reading daily, along with writing; however, due to Parent’s concerns, the Student was to be pulled out 1x during day 3x6 for reading and 3x6 writing. 5/D 4 indicates that the Student is still struggling with writing and continues to be below grade level. In response, the CSE developed 4 goals to address this,

10 Another reading assessment tool used by the District to measure reading fluency. D 14.

11 The iReady, a computerized testing is another assessment tool used by the District to measure reading ability and math. For reading it such as phonological awareness, phonics, high frequency words, vocabulary, comprehension literature and informational text.

including the Student writing paragraphs independently with teacher prompts, along with his encoding needs and going back to revise his work.

Another CSE was held July 6, 2023. D 17. The Parent expressed her concern that the Student could not consistently write complex sentences; staff indicated that the Student could write complex sentences with his own ideas when sentences are dictated. At the end of the school year, the report card indicated that in areas of Math, Science and Social Studies his grades were 3 – meeting standards; his scores for reading and writing were 2 – approaching standards, except for reading with accuracy fluency –3 meeting standards. D 6. The F&P level was O with the Acadience ORF results: 117 words correctly throughout the 3 passages with 94% accuracy; Student is considered below benchmark for accuracy, and as per Acadience strategic support is not warranted. Pg. 2 of D 7.

D53, a compilation of his OG binder from January 2023 to June 2023 shows the Student working daily and deliberately on his writing (use of capitals and punctuation); his reading, understanding consonants and vowels, vowel teams, fluency (reading out loud), and encoding. Noted was his writing that his word spacing within his actual handwriting is more consistent and his use of cursive12 – (for example see pg.s 13, 60, &76/ D 53). D 50, unassisted first-time note reading from his favorite indicated a Student was happy with his shared passion for reading books. P T, the unassisted informal thank you note, along with the list of books to the author shows mistakes – deer rather than dear, thake instead of thank; however, the author’s name, the words author, excited and sharpie are correct. Tr. 1512.

12 Cursive was recommended in the private evaluation 13/D 25 and the Private School Consultant discussed how the Student was working on his cursive there too.

The Parents privately placed Student for the 2023-2024 school year; however, the Student did attend the District’s recommended summer reading program, which is part of the 2023-2024 school calendar13.

PARTIES POSITION:

• • The District’s Position in sum:
    • 1. The District’s provided FAPE in LRE for the 2021-2022; 2022-2023 and 2023- 2024 school years.
         1. The 2nd grade 1/3/2022 CSE not to classify was appropriate
         2. End of 2nd grade 6/?/2022 CSE to classify as appropriate
         3. End of 2nd grade 6/?/2022 504 classification and plan appropriate
         4. 12/6/2022 CSE to classify as LD
      2. There were no procedural violations to amount to a denial of FAPE.
      3. The District evaluated the Student in each area of suspected disability.
      4. Parents meaningfully participated at the CSE Meetings.
      5. Never challenged the July 6, 2023CSE
      6. Student’s IEP recommendations provided and offered FAPE.
      7. 12/6/22 IEP was appropriate
      8. April 5, 2023 CSE
      9. The July 6, 2023 CSE for the 2023-2024 school year provided FAPE
      10. Specially designed instruction can be provided in resource room
      11. Parents lacked credibility and repeatedly thanked his teachers for his gains
      12. Parents cannot use retrospective evidence to provide denial of FAPE

13 See https://www.cn.nysed.gov/content/school-year-calendars-non-public-sfas-only-0

• • • 1. Developed appropriate goals for the 2022-2023 and 2023-2024
      2. 100% mastery is not required
      3. Program consistent with LRE
      4. Methodology and peer-reviewed are without merit
      5. OG provided by OG reading instruction
      6. Private school not appropriate
      7. Did not meet their burden
      8. Hearsay testimony by the Private School Consultant
      9. Not individualized instruction to meet Student’s needs and too restrictive
      10. Not entitled to reimbursement of Private Educational Evaluation
      11. Equities do not favor the Parents as the Student made progress in 2nd and 3rd grade
      12. Equitable does not support tuition reimbursement
      13. The Parents failed to Establish Procedural Violations
      14. The District and its educators are entitled to deference, “deference for their programming decisions.”

The Parent’s Position in sum:

1. Before December 2022, the Parent argues that the District failed to provide FAPE and failed to comply with Child Find. The District failed to identify despite had reason to suspect that the Student had a disability; failed to provide special education and deprived the student of educational benefits.
2. Even when the Student was classified in December 2022, the District’s educational programming was inadequate
3. The District departed from the evaluative data as the test of writing showed significant deficits.
4. Did not include measurable annual goals targeting the Student’s needs
5. Failed to offer methodologies on peer-reviewed research
6. Failed to provide a full continuum of services
7. Denial of meaningful parent participation
8. Violated 504 and ADA
9. Parents entitled to tuition reimbursement
10. Private school meets the standards and it is appropriate program
11. Equities favor the Parent

FINDINGS

Child Find

First, I will address the allegation of child find. The purpose of the "child find" provisions of the IDEA is to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may need special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry

v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch.

Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]. A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent in failing to order testing, or have no rational justification for deciding not to evaluate the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]).

Commencing October 8 2021, the District agreed to provide AIS instruction. The District took steps to support the Student and respond to the Parent’s concerns with AIS and non-mandated counseling. 14-20/Tr. 146. The Student academically was not failing. He was not found to have violent outbursts in school as the Parent reported. 21/Tr. 2520. The D 37 shows that teachers reported he did become upset when challenged with reading and writing; did not like making mistakes and not getting his way. The District provided a collaborative effort in response to that school year amongst the classroom teacher, the AIS teacher, and the school psychologist, who came in periodically to check in and or walk with the Student. (PP14-20/Tr. 146). In turn, the District staff communicated with the Parent informing her of her child’s needs and progress. D 46. The District did not ignore any clear signs of disability nor was negligent in evaluating the Student.

Two weeks after the AIS commenced, the Parent had the Student evaluated by a private S&L that did not find that the Student had significant needs. Shortly thereafter, the Parent requested that her child be evaluated again. The District evaluated and held a CSE on 1/3/22. Due to the progress as noted in the classroom by AIS, and staff, the District did not classify the Student. 19-23/Tr. 150 & 12-13/Tr. 151. However, it addressed the Parent’s concerns by overlapping the AIS instruction with OG instruction (3x cycle) to her child from January 2022 through March 2022 to see how he responds. The District continued AIS and any other services, such as non-mandated counseling designed to address the learning needs of the student (see 8 NYCRR 200.4[a][9]). The District undertook a response-to-intervention (RTI). Board of Educ. of Fayette Cnty. v. L.M., 478 F.3d 307, 313 (6th Cir. 2007)). D.T. v. Cherry Creek Sch. Dist. No. 5, 55 F.4th 1268, 82 IDELR 78 (10th Cir. Dec. 20, 2022). The Student was responding and progressing. 19-20/Tr. 151 and Tr. 716.

Evaluating the student for eligibility was sufficient for child-find. For January 3, 2022 the CSE, reviewed D 44, D 43, D 42, D 41, D 40, and D 37. For June 23, 2022, CSE reviewed again Id, along with D 36, D 35, D 34, D 33, D 32, D 31 & D 30. A parent’s disagreement with the evaluations and the CSE finding is not the same as a district not conducting the evaluation(s)

and or providing RTI. The Parent, moreover, did not establish that the eligibility determination was wrongly based on allegations of deficits and lack of meaningful progress. The problems of inattentiveness or distractibility were addressed on June 23, 2022, when the District found him eligible for a 504 plan. The district is not required to defer to the opinion of a subsequent private evaluator, who saw him the following school year; for 2 hours; utilized District evaluations from December 2022, and did not observe the Student in the classroom14.

The after-classification on December 6, 2022, that the Parent argues “you should have classified” undercuts and undermines the whole RTI process, not to mention a child’s developmental and learning process. PP 16-20 Tr. 720 & P 2 Tr. 721. I find that the District did not violate child find.

504 Violations

In regard to the Parent’s claims as to Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794, alleging that the District discriminated and or committed gross misjudgment against the Student and or the Parent, I do not find such claim for the Parent. Section 504 addresses discrimination against disabled students rather than inappropriate special education services which can be the basis of IDEA claims." S.W. v. Warren, 528 F. Supp. 2d 282, 289 (S.D.N.Y. 2007). "[A] Section 504 claim may be predicated on the claim that a disabled student was 'denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive.'" C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014) (quoting S.W., 528 F. Supp. at 290). Under Section 504, schools must conduct an evaluation in a timely manner of any student who needs or is believed to need special education or related services because of a disability. In this case, the District initially evaluated promptly upon the Parent’s request; considered the Parent’s concerns; conducted full evaluations and considered the Parent’s private evaluation. D 25.

The District offered its various methodologies, along with OG instruction that was research-based, systemic, cumulative, and rigorously implemented. Various District personnel had sufficient knowledge of OG, and it did not infringe on the parents’ participation rights and did not result a in loss of educational opportunities. It also provided FAPE and access and did not constitute a denial of reasonable accommodation in violation of Section 504 and the ADA.

To state a claim under Section 504, a plaintiff must allege (1) "that he or she is a person with disabilities under the Rehabilitation Act," (2) "who has been denied benefits of or excluded from participating in a federally funded program or special service," (3) "solely because of his or her disability." Bryant v. New York State Educ. Dep't, 692 F.3d 202, 216 (2d Cir. 2012). At issue is the second prong: whether the Student has been denied benefits or excluded from participating in a federally funded program or service by his denial of a FAPE or by systemic IDEA violations by defendants.

A plaintiff who alleges that they have been denied benefits or has been excluded from participating in a federally funded program or special service "may proceed under any or all of three theories: disparate treatment, disparate impact, and failure to make reasonable accommodation." Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d

35, 48 (2d Cir. 2002). The Parent is alleging that the District failed to make reasonable accommodations for the Student by denying him a FAPE for 2021-222, 2022-2023, and 2023- 2024, school years, a three (3) year span, which may be considered a systematic denial.

Additionally, a Section 504 claim predicated on the denial of a FAPE "requires proof of bad faith or gross misjudgment." C.L., 744 F.3d at 841. Courts have used this same standard to evaluate Section 504 claims alleging systemic IDEA violations as well. See S.W., 528 F. Supp. 2d at 287, 290-92 (requiring proof of bad faith or gross misjudgment for Section 504 claims alleging systemic IDEA violations). A plaintiff who alleges that they have been denied benefits or have been excluded from participating in a federally funded program or special service "may proceed under any or all of three theories: disparate treatment, disparate impact, and failure to make reasonable accommodation." Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002). Parent’s counsel is requesting that I find that the District failed to provide research-based structured literacy instruction to enjoy meaningful access to his educational programming. The District staff worked hard alongside the Student and the Parent to keep him in general education and to the curriculum. Likewise, the District did not prohibit the Parent. D 46, the Parent's emails from 5/31/22 to 6/23 are more than just being “polite”. 23 Tr. 2391. In 2nd grade, the Parent thanked the AIS teacher and replied that her son made nice progress and hopes to have her next year; “now we need to boost his encoding and writing. The errors he makes in dictation are so off. He’s getting better!” On June 23, 2022, the Parent emailed the school team, which included the 2nd-grade classroom teacher and AIS teacher, thanking them for the great gains. Previous emails reflect the reconvening of a meeting with updated testing and requesting a 504-meeting due to his refocusing, redirection; checking for understanding, and directions explained. D 46, the emails continued into the following school year as on 8/29/22 the Parent introduced herself to the 3rd grade classroom teacher making her aware of her son’s 504 plan; his reading is ½ year behind; his encoding is extremely weak; his diagnosis of dyslexia and ADHD15(emphasis added), poor self-esteem and scheduled to receive non-mandated counseling. The subsequent communication from the 3rd-grade teacher to the Parent regarding the Student’s iReady scores indicated progress and in response the Parent’s heartfelt appreciation. 22/Tr. 2592. The various assessments: of F&P, Gallistel Ellis, iReady, Acadadience, along with the daily OG instruction, Fundations and D53, the Student’s work product, I do not find the District violated Section 504 and the ADA relating to the Student and or the Parent accessing FAPE.

Parent Participation

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 735 Fed. App'x 38, 40 [2d Cir. Aug. 24, 2018] [noting that "'[a] professional disagreement is not an IDEA violation'"], quoting P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008];

T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P.

v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 [S.D.N.Y. July 30, 2015]; E.F.

15 D 25, the diagnosis of dyslexia was not yet determined until the earliest 10/30/23 when the neuropsychologist diagnosed the Student. For ADHD, on 1/29/24 the Parent testified that the Student had a “mood disorder”, not ADHD. Dyslexia appears “pre-determined” and ADHD is “inaccurate”.

v. New York City Dep't of Educ., 2013 WL 4495676, at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192). Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process" (D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree]).

One aspect of the parents' right to participate is the requirement that the CSE must consider private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance in any general State or district-wide assessments as well as any special factors as set forth in Federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ. of the Town of Ridgefield, 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; D 25 was utilized by the District to generate an IEP. D 23. The record is replete with meetings, correspondence via email, calls, and texts that the Parent participated in her child’s education concerning the identification, evaluation, and educational placement of the child

Tuition Reimbursement Standard

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1), to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2), to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch.

Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir.

2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). “[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP (Walczak v. Fla. Union Free Sch.

Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).” The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. , 137 S. Ct. 988, 999 [2017]). " While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch.

Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S.

516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245). The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 10 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B.

v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

The process of review as to parents' entitlement to reimbursement for a private placement under the IDEA is a familiar one. When parents unilaterally enroll their child in a private school, a three-part Burlington-Carter test is used to determine whether they should be reimbursed. The test is in sum: (1) whether the school district's proposed plan will provide the child with a free appropriate public education [("FAPE")]; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities.

Issue # 1 did the District Fail to Offer Student a FAPE for 2nd grade (2021 2022)?

"A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education ("FAPE")." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 174-75 (2d Cir. 2012); 34 C.F.R. § 300.101(a) (a FAPE "must be available to all children residing in the State between the ages of 3 and 21"). Moreover, states share an affirmative responsibility that "[a]ll children with disabilities in the State . . . who are in need of special education and related services, are identified, located, and evaluated." 34 C.F.R. §

300.111(a)(1)(i).

In this case, the District did not classify the Student during the 2nd grade year. It only provided a 504 at the end of the 2nd grade to assist and or formalize the support for the Student going into 3rd grade. A specific learning disability," which the IDEA defines as follows: a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. 34 C.F.R. §§ 300.8(a)(1) & (c)(10). The IDEA then describes how a school board may determine the existence of a "specific learning disability" as (a) [A school] may determine that a child has a specific learning disability if (1) [t]he child does not achieve adequately for the child's age or to meet State-approved grade-level standards in one [one of a number of] areas, when provided with learning experiences and instruction appropriate for the child's age or State-approved grade-level standards[; and] (2) (i) The child does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (a)(1) of this section when using a process based on the child's response to scientific, research-based intervention; or (2)(i)(i) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments.

The District provided AIS, actively monitored the student's academic progress throughout the 2021-2022 school year; and timely evaluated the student once it received a request to evaluate the student from the Parent. According to the 2nd-grade CSE Chair, the Student was not presenting with needs that required special education. The Student’s weaknesses were being addressed by AIS and the Student was progressing. Tr. 150-151. "The purpose of the AIS is to reinforce fundamental reading skills with the intention of those skills generalizing to the general education classroom" (Tr. p. 174). The 2nd-grade teacher, school psychologist, and AIS teacher opined that the Student did not need specialized instruction; however, the Parent disagreed.

At the 1/3/22 CSE, the District evaluations were reviewed and the 2nd-grade classroom teacher did indicate: that the Student would shut down during the writing task like he couldn’t do it – he was just done with it. Tr. 23-25/Tr.101. Testimony indicated that between the 2nd grade classroom teacher, AIS, and school psychologist, who worked with the Student, using their classroom strategies motivated the Student to attend to his reading, and writing and built his confidence. The Student moved from an F&P level H to a level J by January 2022. As reiterated previously, D 41 the classroom observation indicated that the Student followed instructions, and routines, participated, and was focused; however, after a time he became disinterested and looked out the window. The 2nd Grade Teacher Reports dated 1.6.22 as previously reported the Student rarely attended extra help and sometimes displays frustration tolerance and a positive self-image. All other criteria were most of the time to all of the time; with commentary that he has strong math skills; reading on grade level and at times displays frustration and cries or seems angered while at times displays coping skills by asking to speak with the school psychologist. The Art teacher reported the Student is a pleasure and may get upset if the work does not come out the way he wants. The Makerspace teacher scores ranged from sometimes, half, and most; further reported that he shows enthusiasm in the beginning; benefits from reminders; chatty with peers that impeded his learning; and benefits from redirection and reassurance

In interpreting evaluation data for the purpose of determining if a student is a student with a disability, as defined in section 200.1(mm) or (zz) of this Part, and determining the educational needs of the student, the committee on special education and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student's physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered. The school district must provide a copy of the evaluation report and the documentation of eligibility to the student's parent. A student shall not be determined eligible for special education if the determinant factor is: (i) lack of appropriate instruction in reading, including explicit and systematic instruction in phonemic awareness, phonics, vocabulary development, reading fluency (including oral reading skills) and reading comprehension strategies; (ii) lack of appropriate instruction in math; or (iii) limited English proficiency.

The District determined that the Student did not require specialized instruction as the Student was progressing without it. The Student's 2nd grade experienced certified regular education and reading teacher (Tr. 499/500) testified that she thought the Student was an average one. 21- 24/Tr. 508. She used dictations at the end of every Fundation’s unit that had a small group instruction with reading activities that the students answered in writing and orally. Tr. 521.

Fundations is a program that involves phonics, phonemic awareness and spelling. Likewise, the iReady was used for phonological awareness, phonics, high-frequency words, vocabulary, and comprehension. Tr. 527. D 33 reflected his progress. Coupled with AIS, which after it commenced, the Student improved with his spelling, grammar, overall reading, and writing. The Student’s overall attitude improved. 12-18/Tr. 524.

A review of D 47 shows a Student holding up his writing proudly (no appearance of sadness or frustration) along with other classmates. His writing is legible and shows capitalization at the beginning of the sentence and for the day of the week with punctuation. 2nd-grade handwriting is not perfect. In comparison, the girl to the left has better handwriting. Likewise, the boy to the further left indicates “bought” rather than “brought” and the boy to the right misspells Wednesday. The 2nd-grade classroom teacher and the Student himself were proud of his work. Tr. 549. D 48 Tackling Tricky Word Wall Bulletin coupled with individual anchors for each student provided reading and writing reference strategies for all, including the Student as the private evaluation recommended. Tr. 558. Considering the scope of the evaluations, the observations of the experienced 2nd-grade classroom teacher, AIS and District staff use of typical classroom strategies, I agree that the District’s attempts were working and the Student’s reading and writing abilities were making sufficient progress. This 2021-2022 collaborative process amongst the Parent, 2nd-grade classroom teacher, psychologist, and AIS teacher during 2nd grade and their efforts moved a Student, who did not want to do the work and or be taught and wanted to get his own way to a Student who became a learner and a worker to the challenging academics for his 3rd grade. “When challenged or stumped he was inclined to push on”. 5/D 25. This is what the special and or educational process is designed for.

Another CSE was held on June 23, 2022, whereby updated assessments and reports were considered. D 46 May 31, 2022, an email from the AIS reading teacher indicated the F&P level

L. The AIS teacher, a certified reading teacher with more than 10 years’ experience (Tr. 578) had to administer the test 2x as the Student starts out strong but then rushes and mumbles through; asked the Student to reread certain parts of the text. 3 -4 A/D31; reports indicated better attitude; enjoying literature club; adequate to strong literal comprehension; needs to monitor and self-correct; writing errors due to motivation and rushing; Gallistel Ellis administered – no significant findings. It stated to continue with literature club, and tutor. The Parent noted encoding is weak which tests reflect and noted a combination of rushing, and lack of motivation and it is a struggle for him; when prompted to slow down and helped by the teacher does a better job; if no IEP then 504 and needs writing goals. D 32 indicates various scores for the 2022/23 school year of the Student and it showed progress except for PH16. None of the scores were anomalies that indicated concern. D 33 iReady scores in reading and math from 9.22.21 through

5.19.22 showed that the Student was progressing at least 1-grade level to more (comprehension literature from k to mid-2). The District found the Student ineligible. D28 listed the various evaluations where it summarized that the student “demonstrated high average skills in short-term working memory and verbal comprehension, and average abilities in processing speed, deductive reasoning, and recreation of puzzles. He demonstrated below-average skills in inductive reasoning and in perceiving abstract visual stimuli. Pg. 3 Id. P H end of 2nd-grade report card scores reflected 3s in reading comprehension, fluency knows/applies phonics, math (some 4’s), social studies, and science and 2’s in writing and language, and an S for exhibits self-control and responsible behavior. Some problems in school do not automatically render a finding of eligibility under special education. The District was to continue the AIS program. The part 200 defines specially designed instruction means adapting, as appropriate, to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students. The Student was accessing and meeting the educational under District’s RTI and general education instruction

D 27, June 23, 2022, the Student was classified as a student with a disability under the Section 504 plan for program modifications and testing accommodations. Again, the same evaluations were considered, along with the District staff’s observations and the Parent mentioning the Student was diagnosed with ADHD. It was noted that the Student demonstrated behaviors consistent with ADHD, anxiety, and emotional dysregulation that impact his ability to concentrate and learn, distractibility, and mood lability within the classroom setting. Pg. 2 Id. It was recommended refocusing, redirection, a positive reinforcement plan, and on-task frequent prompts.

Considering the Student’s mood lability at times; the need for a positive self-image; concern for other’s perception; for getting things right (Tr. 587) and or his distractibility and or inattentiveness, his rushing through (D 51 & Tr. 755-756), coupled with the Student’s progress without specialized instruction, the 504 accommodation plan with special seating, opportunities for movement, refocusing & redirection, a positive reinforcement plan (requires frequent reinforcement of positive and prosocial behavior), along on-task focusing prompts for all tests was appropriate on June 23, 2022.

Did the District Fail to Offer Student a FAPE for 3rd Grade (2022-2023) ?

D 25, the Student was privately evaluated on 10/30/22 with a report date of 11/30/22.

The CSE reviewed D 25, along with the teacher’s reports, D 24, report cards, PU.

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

At this CSE, the Student was classified for LD to receive specialized reading instruction and developed an IEP. D 23. An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.

§§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv). A lot of cognitive testing and achievement testing provide various forms of subtests to assist educators in understanding the student’s strengths and weaknesses to address their needs. Cognition includes several areas of abilities: remembering, reasoning, problem-solving, concept formation, and perhaps creative thinking. One may solve from memory and the other – never met the problem before – must reason it out by general principles. In addition, there are verbal and non-verbal domains of cognition. The IEP notes that the Student is diagnosed with Dyslexia (1 & 6/D 23) and he is to receive daily special class reading 1 x daily 40min small group – non-integrated. The small group is not defined in the IEP and OG is not mentioned; however, the Parent testified that she knew that OG would be provided at the District in a 2:1 setting. Infra. Pg. 6/Id indicates “his attempts to apply phonetic rules reflects exposure to multi-sensory remediation curriculum.”

State regulation defines "specially designed reading instruction" as "specially designed individualized or group instruction or special services or programs . . . in the area of reading . . . which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs" (8 NYCRR 200.6[b][6]). State guidance discussing specialized reading instruction notes that the term "specialized reading instruction" need not appear on an IEP and that such instruction may be provided through various means, including via consultant teacher services, resource room services, a special class, or as a related service ("Guidelines on Implementation of Specially Designed Reading Instruction to Students with Disabilities and Clarification About 'Lack of Instruction' in Determining Eligibility for Special Education," VESID Mem. [May 1999], available at http://www.p12.nysed.gov/specialed/ publications/policy/readguideline.html). In addition, the guidance specifies that the CSE should "consider what prior instructional methods and strategies have been utilized with the student to avoid reinstituting programs that have not proven effective in the past" and further indicates that "[i]nstructional methodology may be discussed at the [CSE] but is not specified on an IEP” (id.).

More generally, the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher's discretion—absent evidence that a specific methodology is necessary (Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 [2d Cir. Oct. 29, 2014]; A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 [2d Cir. July 29, 2014]; K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 [2d Cir. July 24, 2013]; R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257). As long as any methodologies referenced in a student's IEP are "appropriate to the [student's] needs," the omission of a particular methodology is not necessarily a procedural violation (R.B., 589 Fed. App'x at 576 [upholding an IEP when there was no evidence that the student "could not make progress with another methodology"], citing 34 CFR 300.39[a][3] and R.E., 694 F.3d at 192-94). However, when the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate (see, e.g., R.E., 694 F.3d at 194 [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology]).

D 25 did not provide one specific recommendation. It indicates both 1) “proper remediation and integration of remedial techniques and strategies in the mainstream classroom”; 2) while on the same page indicates a “proven multisensory reading program and structured writing program” and then he further states that Student 3) private OG and or “requires daily, structured OG multi-sensory approach to reading and writing”. D 25 does not specify that the Student needs a specific methodology to progress. The District’s IEP (7/D 23) indicates daily reading and writing during this special class. On the use of OG versus other methodologies and or the type of instruction, the courts have ruled that school districts are entitled to deference on methodology and instructional decisions. Here in this case nothing in the record demonstrates that the Student will only progress with a certain methodology and or immersion for the Student to receive an appropriate education. Discretion is warranted with the District's experienced staff, including the certified experienced OG teacher. The crux of the parties' dispute for each school year at issue is largely focused on the extent to which the methodology provided to the Student and or its fidelity. “The mere fact that a separately hired expert has recommended different programming does nothing to change [the] deference to the district and its trained educators"], aff'd, 487 Fed. App'x 619 [2d Cir. July 6, 2012]; Z.D. v.

Niskayuna Cent. Sch. Dist., 2009 WL 1748794, at *6 [N.D.N.Y. June 19, 2009] [explaining that deference is frequently given to the school district over the opinion of outside experts]). Moreover, in addition to considering what supports and services the student needed in order to receive educational benefits, the district is mandated to consider placing the student with his nondisabled peers in light of the IDEA's LRE requirements. The private neuropsychologist was not bound to adhere to the same mandates. A review of the goals noted 1 reading: read correctly vowel teams 80% on 5 consecutive times (baseline 4 words) and 2 writing: 10 blends containing short vowel sounds, Student will encode properly 60%17 on 5 consecutive times (baseline 3) and independently write 5 sentences with correct capitalization and punctuation 80% on 5 consecutive times (baseline 1 out of 5). Considering his needs, the program and previous progress, these goals were appropriate, and the student made progress.

On March 1, 2023, a remote CSE was held. P N. The CSE was held to review the Student’s progress and to make recommendations for the 2023-2024 school year. 1 & 2/P N. The same evaluations were used as prior, along with teacher reports dated 2/13/23. D 21 (infra). PN indicated that the Student has been making progress with his reading level since November 2022 and he is at an early 3rd-grade level. Two (2) additional assessments were completed in decoding and fluency that reflected growth. Student “can be resistant to writing assignments but responds well to prompting, encouragement and positive reinforcement when experiencing challenges in the classroom.” In addition, it was noted he was attending special class/OG instruction. It was noted that the Parent expressed 1:1 instruction and the OG teacher indicated that the Student is progressing, and he does well with a peer.

D 21 February 13, 2023 teachers submitted reports indicated the Student: “sometimes” attends extra-help; only “half of the time” - retains skills, works independently participates in discussion, and demonstrates frustration tolerance; while “most of the time” the Student is prepared, follows classroom directions; has appropriate behavior, relates well to adults and peers, and in-seat behaviors and “all the time” completes his homework. a reading level of F&P of N with a goal of O; iReady indicating the Student is one of the strongest readers in the class (D 11);

1717 D 53 binder, encoding, along with the other goals, is addressed on a continuous rotational basis for the Student to monitor, practice and reinforce.

vocabulary is late 3rd grade; again writing is more challenging. His social development indicates that he is competitive; easily upset when not winning, can exaggerate information tells small lies, wants everything correct the first time and they are working on his mindset. The Student benefits from the current accommodations. 1-5/D 21. The reading teacher indicated that he is “tapping out words”; works well with small groups and benefits from repetitive, multisensory techniques for learning.

The Goals: 2 reading goals: read correctly vowel teams 80% on 5 consecutive times (No baseline) and the other now a reading: 10 blends containing short vowel sounds, Student will encode properly 60% on 5 consecutive times (No baseline) and, 1 writing independently write 5 sentences with correct capitalization and punctuation 80% (No baseline). Considering the Student’s strengths, skills and strategies learned, along with his needs, the goals are appropriate. Clear modeling and time to practice18 is essential. His writing is more challenging – wants to finish quickly; and needs considerable encouragement; with support can write a short personal narrative. Pg 6 Id. Strengths indicated benefits from repetition and multi-sensory techniques for learning; worked well in the book club; took a leadership role; strong oral reading comprehension and math.

Despite, the D9 Gallistel Ellis, a series of assessments showed progress from 2/18/22 to 6/6/23 and the Parent testified that the Student progressed in 3rd grade. Tr. 2592, on March 21, 2023, the parent submitted a ten (10) day letter D 20. The District program, the student could be educated appropriately in a general education classroom with supplemental aids and services, along with the daily special reading class. D 23 & P N IEP’s represented the student's FAPE in the LRE for the 2022-2023 school year. I find FAPE was provided for 2022-2023.

Did the District Fail to Offer Student a FAPE for 4th Grade (2023-2024) ?

The CSE was held on April 5, 2023. 2 IEPs were developed. 1 for the remainder of the Student’s 3rd grade year (D 17) and the other for the 4th grade year (D 18). The CSE Chairperson was the Director of Special Education and both parents attended. The notes from the IEP indicated that the Parents were very concerned about the inability of the District to provide the needed intensive instruction, especially in the area of writing; the Student requires direct intensive instruction beyond what the district could provide 1/D 19. The Parent attributed the lack of instruction for the previous 2 years, and the Student is demonstrating emotional difficulties at home19. His SPAMS in reading indicated F&P level N (beg 3rd grade); still tends to read quickly; math is his strength; writing is his challenge – his poor spelling and grammar contribute; he enjoys social studies and science. His cognitive reported from high average to average; however, the Student struggled with inductive reasoning and the use of visual-motor integration; and it was also reported that the Student has trouble “controlling and regulating emotions, such as worry/fear and perfectionism. D 17 page 7. The CSE recommended ESY services – 2x weekly 45min in a special class 2:1 for reading/writing. Goals were reviewed and indicated needs to improve writing complex sentences independently. Id. Goals – # 3 writing independently write 5 complex sentences with correct capitalization and punctuation and # 4 improve his encoding; #5 was added and it addressed his capitalization and punctuation. This same IEP allowed access to assisted technology as needed; the neurologist’s philosophy was hesitant about technology as he believed it took away the ability to “learn”.

Another CSE was held July 6, 2023. The parents again expressed her concern that the Student could not consistently write complex sentences; staff indicated that the Student could write complex sentences with his own ideas but could when sentences are dictated. The Student showed improvements with end-of-the-year assessments such as F&P, the Gallistel-Ellis test and the i- Ready assessments. End of the year report card provided his 3 in reading fluency. P U. The writing is a continued area of concern, and it was reported below grade level; See D 4, pg 7. The CSE recommended a general education setting with daily specialized instruction with 3/6 days of reading and 3/6 days of writing. See D4 page 2. The same accommodations continued as from April’s IEP (D18 to D 4), along with access to assistive technology. The goals: reading 10 words 80% based upon data collection sheets and 4 writing, including encoding 60% - spelling with blends by data collection and utilizing pre-writing and editing strategies.

I find that the evidence supports a determination that the District’s program and annual goals recommended for the 2023-2024 school year were individually tailored to meet the Student’s needs and provided measurable and achievable goals. The Parent’s valiant effort for OG fidelity; that it must only be OG and or the instruction at the Private School is without specificity and lacks evidence in this record.

The Determination That Private School was an Appropriate Placement?

Although I find that the District provided FAPE to the Student for the 2021-22; 2022-23 and 2023-24 school years, I will review whether to be eligible for reimbursement under the IDEA, if the Parents established that the Private School was an appropriate placement for the Student. [U]pon a finding that a public agency's placement or program or proposed placement or program is not appropriate, any party seeking reimbursement for a unilateral placement or program shall prove the appropriateness of such placement of program by a preponderance of the evidence. A unilateral private placement is only appropriate if the "'placement provides 'educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.'' C.L

v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014) (quoting Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 365 (2d Cir. 2006), which, in turn, quoted Rowley, 458 U.S. at 188-89). "In making this determination, courts look to the 'totality of the circumstances' and '[n]o one factor is necessarily dispositive.'" M.B. ex rel. L.C. v. Minisink Valley Cent. Sch. Dist., 523 F. App'x 76, 78 (2d Cir. 2013) (quoting Frank G., 459 F.3d at 364). In short, the "parents' placement of the child must be reasonably calculated to enable the child to receive educational benefits." C.L., 744 F.3d at 836. Finally, "'the test for the parents' private placement is that it is appropriate, and not that it is perfect.'" Regional Sch. Dist. No. 9 Bd. of Educ., 2009 WL 2514064, at *14 (quoting Warren G. v. Cumberland Cnty Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)). The Board initially phrases the standard somewhat differently.

Quoting Hardison v. Board of Education, 773 F.3d 372, 386 (2d Cir. 2014), it determines that the placement is only appropriate if it is "specifically designed to meet the unique needs of handicapped children," rather than "specially" designed to meet those needs. Doc. 44, at 33 (emphasis in original). The Hardison court borrowed the term "specifically," from M.H. v. N.Y.C. Department of Education, 685 F.3d 217, 246 (2d Cir. 2012), which in turn quoted the term from Gagliardo v. Arlington Central School District, 489 F.3d 105, 115 (2d Cir.

2007). Gagliardo's use of the term "specifically," however, is a misquotation of the Second Circuit's earlier decision in Frank G. Specifically, in Frank G., the court used the term "specially," rather than "specifically," which either way I will address herein

As proffered by Parents, the Student has above-average intellectual ability but has a language-based learning disability affecting his reading and writing skills. The Private School Consultant testified that the school was specially designed for that precise type of Student. P Y specifically, it states the school provides the expertise in language structure that remediates and prevents reading problems and unfortunately, the practices and licenses in many states are insufficient to address this. The school is focused exclusively on helping students with language-based learning disabilities, which this Student has. The Private School then determined that this Student specifically met its criteria for admission through its morning assessment, along with a review of D 25, and that the Student has "average to superior intellectual potential," and "no behavioral or emotional problems". P AA. P DD is the assessment completed for the Student. It is comprised of standardized testing by the Private school that includes the Iowa Language Arts and Math plus the Woodward Coding Test of Reading & Spelling. These are not normed referenced assessments, but private assessments used by the Private School. Tr. 2139.

Based upon these results, along with the Student’s record, he is placed in a class.

The Student is a child with a language-based learning disability. According to the Private School Consultant, the teachers are highly trained, despite the subject area, have been trained to teach children with language-based learning disabilities through a multisensory direct instruction group model. The Private School Consultant confirmed that the school does not provide any testimony for its Students; she never met the Student; never assessed nor evaluated him; never taught him nor observed him in the program. She did testify that according to teachers the Student is attending and progressing. P FF. The Student attends a class in a group of 8 students like him in a language-based reading and writing program. Based upon the assessment the Student is properly placed. Likewise, the Parent’s Private Neuropsychologist, who worked previously at this school, recommended this school for the Student. Pg. 13 of D 25.

A specialized school for children with reading differences and learning disabilities is an appropriate placement for such a student. According to the Parent, who never observed the Student there, and the Private Consultant’s hearsay evidence, the Student is available for learning, and the classroom teacher did not even realize the Student was diagnosed with ADHD20 (Tr. 2568); he is focused and attending,

Likewise, the Private Neuropsychologist, who worked for the Private School and continues to receive referrals, who reviewed the Student’s record and evaluated for 2 hours, recommended the Student as it is an appropriate placement. D 25 indicates that it is a good recommendation for the Student. The placement specifically is a school designed for kids who do not have behavior problems, and who are bright and struggling to learn to read.

To be reimbursable, the program need not be individually crafted for the student but rather should be specially designed to meet the Student’s needs. In other words, Parents need to show that the private placement of the Student was reasonably calculated to enable the child to receive educational benefits. In reviewing P FF, which is the only direct evidence to determine a finding, indicates bullet points for approaching proficiency, demonstrates progress, and additional practice is needed. There is no evidence whether this program was reasonably calculated for the Student to receive educational benefits. Other than the literature used to solicit teachers and the 2023 summer program brochure (P CC) to which the Student did not attend, I

20 Not ADHD but Mood Disorder.

cannot determine if it is reasonably calculated or just a program where any student would benefit, for example, in smaller class sizes, 1:1 instruction a student generally does better. For these reasons, I am reluctant to find that the Private School program is designed to address the special needs of this Student and is thereby "reasonably calculated to enable him to receive educational benefits.

3. Equities

The third prong of the Burlington/Carter test has the Court assess whether Parents can properly show that "equitable considerations favor reimbursement." T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014). The equities in this case favor the Parent. There is no evidence that "the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA," and therefore "their pursuit of a private placement [is] not a basis for denying their tuition reimbursement." C.L., 744 F.3d at 840.

Nor can it be said that "parents unilaterally arrange[d] for private educational services without ever notifying the school board of their dissatisfaction with their child's IEP." S.W. ex rel. M.W. v. N.Y.C. Dep't of Educ., 646 F. Supp.2d 346, 364 (S.D.N.Y. 2009).

The record shows that Parents began the journey when the Student was in 1st grade and thereafter worked for her child and was cooperative with the District. The Parent’s testimony indicated that the contract, although it states otherwise, the Parent was not contractually obligated to pay for the Student’s tuition come the 2023-2024 school year. P W After March 15, 2023, there were 2 more CSEs with the District. Although it is unnecessary to address equitable considerations, I will note that the district argument deeming the Parent predetermined a private placement is without merit. This argument is contradictory to the controlling law found in the Second Circuit Court of Appeals, which states so long as the parents cooperated, and do not impede its efforts to offer a FAPE, even if the parents had no intention of placing the student in the district's recommended program, it is settled that their plan to unilaterally place a student, by itself, is not a basis to deny their request for tuition reimbursement (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014] [holding that the parents' "pursuit of a private placement was not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school"]). Equity favors the Parent.

Conclusion & Order

IT IS THEREFORE ORDERED THAT based upon my findings herein, I find that the Parent’s request for a finding that the District denied FAPE under the IDEA and Section 504 for the 2021-2023, 2022-2023 school years, be denied, and denied the request for tuition reimbursement at the Private School for the 2023-2024 school year. I find for the Parent in the reimbursable cost to the private evaluation. Therefore,

• I find FAPE for the District for the 2021-2022, 2022-2023, and 2023-2024 school years;
• Further, I deny tuition reimbursement for the Private School during the 2023-2024 school year; and
• D 25 The private evaluation was used by the District in D 23, I therefore order to reimburse the Parent for the out-of-pocket expense.

PLEASE TAKE NOTICE

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.

3 F&P benchmark assessment is an assessment tool that classroom teachers and reading teachers use to assess where a student is in terms of their decoding, their reading fluency, and their reading comprehension and it is one tool to assess ability. Tr. 109

7 During the hearing, on 1/29/24, the Parent testified that it was not ADHD but a “mood disorder” that her child was diagnosed with and taking medication for.

8 See footnote #4 and when asked about the report to the Private Neuropsychologist, the Parent could not answer. Tr. 2606.

14 There was some testimony from the Private Neuropsychologist evaluator to the CSE Director about observing the child in April 2023 way after the evaluation and after the parent had submitted their 10-day letter.

16 In the Spring the score indicated was 450; for the previous Winter it was noted at 474.

19 Parent’s testimony on Tr. 2598 indicate that the Student’s behaviors in 3rd grade did not continue.

Dated: April 1, 2024 Regina Brandow

Regina Brandow, Impartial Hearing Officer

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Footnotes

[18] Practice is noted as essential in acquiring skills. Tr. 748, 886, 1166, 1357, 1694, 2017 (Private School Consultant indicated guided practice) that leads to independent practice. Tr. 2038.