Skip to main content
Special Education Law
DECISIONDistrict PrevailedIHO Case No. 600713

Impartial Hearing Decision

January 13, 2024·Jean Marie Brescia·REDACTED

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 600713

FINDINGS OF FACT AND DECISION

Case Number: 600713

Student’s Name: REDACTED

School District: REDACTED School District

Hearing Requested by: Parent

Request Date/Date Complaint Filed: June 12, 2023

Date(s) of Hearing/ June 21, 2023

Conferences: July 7, 2023

July 14, 2023

August 9, 2023

August 11, 2023

September 5, 2023

October 4, 2023

October 6, 2023

October 11, 2023

October 17, 2023

November 2, 2023

December 22, 2023

Actual Record Closed Date: January 12, 2023

Date of Decision: January 13, 2023

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 21, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON July 7, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

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

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 9, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 11, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 5, 2023

For the Student:

REDACTED, Parent

REDACTED, Student

For the District:

REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 4, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, School Psychologist

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 6, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, School Psychologist

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 11, 2023

For the Student:

REDACTED, Parent

REDACTED, Sister of Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, Assistant Director of Student Services, REDACTED REDACTED, High School Principal, REDACTED REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 17, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 2, 2023

For the Student:

REDACTED, Parent

REDACTED, REDACTED

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, REDACTED Interpreter

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 22, 2023

For the Student:

REDACTED, Parent

For the District:

REDACTED, Esq.

REDACTED REDACTED-REDACTED, Esq.

REDACTED, Director of Special Education

REDACTED, REDACTED Interpreter

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 June 12, 2023. IHO Ex. I.[1] On June 14, 2023, I was appointed by the REDACTED School District (the “District”) to hear this matter. Parent, REDACTED (“REDACTED”), alleged that the District failed to provide REDACTED with of a free appropriate public education (“FAPE”) for the 2021-2022, 2022-2023 and 2023-2024 school years. The initial and the two amended DPCs are described below.

In the Initial DPC, REDACTED challenged a proposed removal of REDACTED from his then-current educational placement at REDACTED IHO Ex. I at 3-4. She forwarded her DPC to the New York State Education Department, the New York City Department of Education, and REDACTED. IHO Ex. I at 3. She subsequently forwarded the DPC to a number of different individuals, and the District recorded receipt of the DPC on June 12. IHO Ex. I; Tr. 929-931.

Upon my appointment on June 14, I forwarded an introductory letter to the parties. IHO Ex. V. I then scheduled a prehearing conference for June 20, 2023; at REDACTED’s request, I adjourned the prehearing conference to June 21.

Prehearing Conferences

I conducted a prehearing conference on June 21 and prepared and distributed a written summary of the conference to the parties. IHO Ex. IV (Prehearing Conference Summary). Among other issues discussed and addressed at the prehearing conference, I denied the District’s application to dismiss the DPC on insufficiency grounds. I also explained to the parties that, as the Hearing Officer, I could hear and determine only challenges that were raised in a DPC. REDACTED stated that she wished to submit an amended DPC. IHO Ex. IV at 1-2.

REDACTED filed an Amended DPC on June 26. IHO Ex. II. While REDACTED dated this document May 19, 2023 (after crossing out “June”), she submitted it to the District and to me on June 26. See IHO Ex. IV.

After the filing of the Amended DPC and the parties’ unsuccessful resolution session, I conducted another prehearing conference on July 7. The Amended DPC was reviewed on the record, REDACTED indicated that she wished to file another amended DPC in light of an IEP meeting conducted on June 20, 2023, and I discussed with REDACTED as to whether she wished to avail herself of her right to have an interpreter in these proceedings. Tr. 2-54. I scheduled another prehearing conference in anticipation of the filing of a second amended DPC.

I conducted another prehearing conference on July 14, 2023. REDACTED had not filed a second amended DPC. Tr. 59, 61-64.[2] REDACTED was reminded of the procedures for filing another amended DPC, including, in particular, the importance of including in the second amended DPC all the claims that she wished to present in this proceeding. Tr. 68-73. I again informed REDACTED of other procedural rights, including, in particular, that she was entitled to have an interpreter in these proceedings. Tr. 69. REDACTED continued to attend his current placement at REDACTED for July and August 2023. Tr. 116.

Second Amended DPC and Pendency Hearing

REDACTED filed a Second Amended DPC on August 3. IHO Ex. III. On August 9, the parties appeared for a pendency hearing to determine REDACTED’s pendency placement as of September 2023, when he would no longer attend REDACTED, and for a conference with respect to the Second Amended DPC and procedural issues, including an interpreter. Tr. 78. A pendency hearing was conducted, and an Order on Pendency was issued. Tr. 88-103, 108-142. See Order on Pendency dated August 13, 2023. IHO Ex. VII; see also IHO Ex. VI (District’s pendency submission).

In addition to addressing pendency, procedural issues were discussed, including the delayed filing of the Second Amended DPC, REDACTED’s request to conduct the hearing via video conference, whether REDACTED was considering an interpreter for these proceedings and her concerns with respect to interpretation, REDACTED’s refusal to consent (and whether REDACTED currently wished to consent) to the District sending application packages to New York State approved non-public schools and other out-of-district placements, and waiver of a resolution session. Tr. 79-87, 103-107, 143-144, 158-159. I commenced, with the parties, a review of the allegations and the claims for relief set forth in the Second Amended DPC. Tr. 144-157.

The review of the allegations and the claims for relief set forth in the Second Amended DPC continued on August 11 with the presence of a REDACTED interpreter. Tr. 179-195; see also IHO Ex. IX (written summary of issues and claims for relief). The following claims are included in the Second Amended DPC (referred to below as simply the “DPC”), and the hearing was to proceed with respect to these claims:[3]

Claims relating to the 2021-2022 and 2022-2023 school years:

1. Bullying impacted REDACTED’s learning

2. Bullying was not properly addressed at school

3. REDACTED regressed due to bullying

Claims relating to the June 2023 IEP:

  1. IEP does not address REDACTED’s needs
  2. Speech therapy is inadequate and inappropriate
  3. Counseling is inadequate and inappropriate
  4. Occupational therapy is inadequate and inappropriate
  5. IEP does not include a bullying protection plan[4]
  6. Challenges to goals in:
    1. Math
    2. Reading
    3. Vocabulary and spelling
    4. Writing
    5. Test-taking skills
  7. IEP’s teaching interventions for REDACTED are inadequate in that REDACTED needs a 1:1 math specialist and a 1:1 teaching assistant for redirection, focus, and reading comprehension strategies
  8. IEP does not include multisensory teaching or homework support
  9. REDACTED did not have the ability to participate meaningfully in the IEP meeting because each goal was not reviewed at the meeting and because the meeting was rushed

Relief Sought

1. Speech therapy, 5 times per week, 1:1, push-in

2. Counseling, 2 hours per week, outside of school

3. Occupational therapy, 2 times per week, push-in

4. Bullying protection plan for REDACTED

5. Plan to improve REDACTED’s written work, math, comprehension skills, and test-taking skills

6. A 1:1 teaching assistant in school

7. Plan to assess and address REDACTED’s regression after school breaks

8. An Independent Educational Evaluation (“IEE”)

9. REDACTED returns to REDACTED at REDACTED High School

10. Tutoring, 10 hours per week after school, provided by REDACTED with tutors determining skills to be taught to REDACTED The order of the hearing and due process procedures were also discussed on August 11. Tr. 195-200; Tr. 231. The parties had waived the additional resolution period subsequent to the filing of the Second Amended DPC. Tr. 143-144. I issued a Scheduling and Extension Order. IHO Ex. VIII.

A telephone conference relating to pendency was requested by REDACTED and conducted on September 5. IHO Ex. X (Conference Summary). I responded to REDACTED’s arguments and questions with respect to the Order on Pendency and the scope of my authority as a Hearing Officer. I encouraged REDACTED to consider, in making her decision about REDACTED attending school (rather than not attending school) as per the Order on Pendency, that REDACTED would be assigned a 1:1 aide for the entire school day. The 1:1 aide was a service that she had been seeking in light of her allegations of bullying. I reviewed instructions to the parties relating to communications with the Hearing Officer; and I discussed due process concerns with respect to hearing scheduling issues and an interpreter. IHO Ex. X at 1-2.

Hearing on the Merits

The hearing on the merits commenced on October 4 with repetition of the instructions as to the order of the hearing. Tr. 231-233. The District presented an opening statement, as did REDACTED, a school psychologist employed by the District, testified. District Exhibits 1 through 42 and 44 and 45 were admitted in evidence.[5] The hearing continued on October 6 with the cross-examination of REDACTED and the testimony of REDACTED, the District’s Director of Special Education and Support Services. The hearing continued on October 11 with the testimony and cross-examination of two witnesses from REDACTED, REDACTED and REDACTED. The District rested its case.

On October 17, REDACTED testified on her own behalf and was cross-examined. Parent’s Exhibits A, B and C were admitted in evidence. Since REDACTED’s witnesses were not available on October 17 or October 19 (the next scheduled hearing date), another date was scheduled for the completion of REDACTED’s case on a date (November 2) that REDACTED’s witnesses would be available and that would accommodate a hearing participant’s medical needs. Tr. 1076-1086. REDACTED stated that she wished to call REDACTED (the director of REDACTED, a tutoring agency) and an unnamed “private psychologist” to testify; however, according to REDACTED, the psychologist did not wish to testify, and REDACTED declined the opportunity for a subpoena for this individual. Tr. 1086. REDACTED also stated that she wished to call REDACTED’s pediatrician and REDACTED to testify. REDACTED reported that REDACTED told her that he wanted to testify in this proceeding but feared the process of testifying without REDACTED in the hearing room with him. Upon assurances from the Hearing Officer that REDACTED had a right to remain in the hearing room for the entirety of the proceedings, including during REDACTED’s testimony, REDACTED indicated that REDACTED “probably” would testify. Tr. 975-976.

On November 2, REDACTED from REDACTED testified and was cross-examined, and Parent’s Exhibits D, E and F were admitted in evidence. District Exhibits 46 and 47 were admitted in evidence. REDACTED stated that REDACTED’s pediatrician was too busy to testify (Tr. 981); REDACTED elected not to present testimony from REDACTED despite the opportunity to do so. After the conclusion of REDACTED’s case, the District presented a brief rebuttal case with the testimony of Ms. REDACTED. Closing statements were presented on the record on December 22 in order to provide time for the preparation of the transcripts and the closing statements and to accommodate the Thanksgiving holiday and the actual engagement of District’s counsel in other hearings.

On December 29, after the conclusion of the hearing, REDACTED sought leave to provide medical records that she represented were in her possession. I granted her leave to provide such documentation. Despite having the opportunity to provide such documentation, she elected not to do so. See IHO Ex. XIV.

I informed the parties that the record was closed on January 9, 2024, upon my receipt and full review of the transcript of the final day of the hearing during which the parties had presented closing statements. IHO Ex. XV.

On January 12, REDACTED sent me an email attaching an August 2019 psychological evaluation performed by a school psychologist employed by REDACTED’s former district of residence. IHO Ex. XVI. REDACTED did not provide any of the previously referenced medical records. The District objected, on relevance grounds, to my considering the document. IHO Ex. XVII. While REDACTED should have provided the document during the hearing, I include the document at this time as IHO Ex. XVIII as information provided by an unrepresented parent about her child’s educational history. I note that the document does not supply the information that REDACTED asserts that it supplies. Compare IHO Exs. XV at pp. 2-3 and XVI with IHO Ex. XVIII at pp. 2-3. I make the decision to include the document after considering that the record closed on January 9. However, the document has no bearing in rendering my decision herein. See 8 N.Y.C.R.R. § 200.5(j)(5)(v). No extensions of the compliance date were sought or granted after the January 9 record close date in order to accommodate including this document in the record. See 8 N.Y.C.R.R. §§ 200.5(j)(5) & 200.5(j)(5)(iii).

Extensions of the compliance date were requested, and written Orders of Extension were issued on August 13, November 3, and December 15, 2023. IHO Exs. VIII, XI, XII. The details of the requests for the extensions and the reasons for granting the extensions are set forth in the Orders.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200.

ISSUES

Ms. REDACTED in her Second Amended DPC, alleges, as outlined above, a series of allegations and claims for relief with respect to the 2021-2022, 2022-2023 and 2023-2024 school years. The questions to be addressed in this decision, based upon the allegations and claims for relief in the DPC, are as follows:

  1. During the 2021-2022 school year, did REDACTED experience bullying at REDACTED, and if so, did REDACTED and the District disregard such bullying and did such bullying impact REDACTED’s access to a FAPE?
  2. During the 2022-2023 school year, did REDACTED experience bullying at REDACTED, and if so, did REDACTED and the District disregard such bullying and did such bullying impact REDACTED’s access to a FAPE?
  3. Is REDACTED entitled to compensatory education with respect to the 2021-2022 and 2022-2023 school years?
  4. Did the District offer REDACTED a FAPE for the 2023-2024 school year?
    1. Did the IEP provide appropriate teaching interventions for REDACTED despite not including, as sought by REDACTED, a 1:1 math specialist, a 1:1 teaching assistant, multisensory instruction and homework support on REDACTED’s IEP?
    2. Were related services of speech-language therapy, occupational therapy, and counseling offered by the District appropriate for REDACTED?
    3. Were the IEP goals appropriate for REDACTED?
    4. Was the IEP inappropriate because it did not include a bullying protection plan for REDACTED?
    5. Did REDACTED have the opportunity to participate meaningfully in the May and June 2023 IEP meetings?
  5. Is REDACTED entitled to relief with respect to the 2023-2024 school year?
  6. Did REDACTED disagree with a District evaluation such that she “triggered” the entitlement to an IEE at public expense?

FINDINGS OF FACT

  1. REDACTED is a REDACTED year-old young man who is eligible for special education and services pursuant to the IDEA and whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Exs. 1, 2, 3, 4, 5, 6. This classification is not in dispute in this proceeding.
  2. REDACTED has experienced language delays since early childhood; he has also experienced, as a school-aged student, difficulties with working memory, vocabulary, attention, social skills, self-regulation, fine motor skills, reading comprehension and math. Ex. 7 at 3-5, 14.
  3. REDACTED is diagnosed with a REDACTED, a REDACTED, a REDACTED, REDACTED. Ex. 7 at 27.
  4. REDACTED struggles with reading comprehension, math, written expression, language skills, planning and organization, fine motor skills, social skills, REDACTED, and attentional skills. Exs. 1 through 7.

Background and Remote Learning in the 2020-2021 School Year.

  1. REDACTED has been a resident of the District since 2019. Tr. 623.
  2. During the 2020-2021 school year, REDACTED was enrolled in the District’s REDACTED grade middle school special education program and was mandated to receive related services. Ex. 7 at 1-3.
  3. REDACTED “was registered as a virtual-only student from September 9, 2020 until April 27, 2021.” During this time period, REDACTED completed only one teacher-led Zoom lesson and logged into the virtual system fewer than ten times; he did not complete any assignments independently. Ex. 4 at 7.
  4. REDACTED’s participation in remote learning offered by the District through April 2021 was “very inconsistent.” Tr. 298, 310; see also Ex. 4 at 2.

February 2021 Independent Educational Evaluation

  1. The District funded an IEE for REDACTED consisting of a Neuropsychological Evaluation performed by REDACTED, a clinical psychologist. REDACTED conducted the evaluation in February 2021. Ex. 6 at 1, 31.
  2. REDACTED reported to REDACTED, among other things, that REDACTED had experienced bullying “in the past,” did not feel “safe” at school, and was “school-phobic.”[6] Ex. 7 at 1.
  3. The report does not include any reports to REDACTED from REDACTED (who was fourteen years of age at the time) that he had experienced bullying or was afraid to go to school.
  4. REDACTED shared only limited, fragmented and incomplete information about REDACTED’s education history and current educational circumstances (such as only portions of REDACTED’s then-current IEP) with REDACTED. Ex. 7 at 2.
  5. REDACTED REDACTED’s testing results included the following:
    1. On the WISC-V, REDACTED attained a full scale IQ score of 81, which is in the low average range. Ex. 7 at 7, 14. His index scores were at the 50th percentile for verbal comprehension, 30th percentile for visual-spatial, 8th percentile for fluid reasoning, 5th percentile for working memory, and 3rd percentile for processing speed. Ex. 7 at 7, 14, 16.
    2. REDACTED explained that REDACTED’s performance on verbal tasks indicated that REDACTED experienced language processing issues and that his performance on the Comprehensive Assessment of Spoken Language (“CASL-2”) demonstrated that he had difficulties with understanding nonliteral language, inferencing, understanding language in context, and pragmatic language, including conversational skills and understanding social cues. Ex. 7 at 9, 15-16.
    3. Assessments (including the Connors-3 Rating Scales) also revealed elevated concerns in the areas of attention, hyperactivity/impulsivity, and learning problems. Ex. 7 at 18-23.
    4. On the WIAT-3, REDACTED scored in the 23rd percentile on word reading, 21st percentile on oral reading fluency, 21st percentile on reading comprehension, 1st percentile on numerical operations, 2nd to 9th percentiles on math fluency (as to addition, subtraction and multiplication), 7th percentile on math problem-solving, 1st percentile on sentence composition, 0.4 percentile on essay composition, and 4th percentile on spelling. Ex. 7 at 11, 24-25.
  6. REDACTED diagnosed REDACTED with a REDACTED, a REDACTED, a REDACTED, and REDACTED. Ex. 7 at 27.
  7. REDACTED concluded that REDACTED had “pervasive” and “complex” learning needs and required “intensive special education services in order to learn.” Ex. 7 at 27-28. In addition, he had “developed significant REDACTED and REDACTED,” and, as a result, needed an “alternative setting in which his academic, social, emotional and trauma issues can be adequately addressed.” Ex. 7 at 28.
  8. REDACTED recommended that REDACTED attend small classes of no more than twelve students located in a public school building, have assignments broken down, instructional support throughout the school day (including a supported study period for homework “facilitation”), use of a computer for written work, instruction on keyboarding, support for his REDACTED and coping skills, a range of modifications (including refocusing and redirection, directions rephrased by REDACTED), testing modifications, speech/language therapy, occupational therapy, and a “family component” to his program. Ex. 7 at 28-31.
  9. REDACTED refused to consent to District personnel speaking with REDACTED about the evaluation. Ex. 26.

REDACTED Returns to In-Person Instruction in April 2021

  1. At the end of April 2021, REDACTED returned to the District’s middle school for in-person instruction. He attendance and timeliness in arriving at school were “sporadic.” Ex. 4 at 2. He attended only five reading classes and five math classes from the end of April through May 24. Ex. 4 at 7.
  2. When he attended school, REDACTED was a cooperative student who was interested in learning and participated in class. Ex. 4 at 7-9. His teachers observed that he was a “friendly and happy member” of the school community who was “excited to be in class” and “actively” initiated conversations with peers and adults. Ex. 4 at 8.
  3. REDACTED, a New York State certified school psychologist and licensed psychologist, is employed by the District. Tr. 291-292, 294-295. Among his responsibilities are case management duties for students attending out-of-district placements. Tr. 292.
  4. REDACTED met REDACTED in May 2021 when Mr. REDACTED was asked to provide in-school counseling for REDACTED as mandated by REDACTED’s IEP. Tr. 297-298.
  5. During the counseling sessions, REDACTED expressed many anxieties about dangers in the world outside of home and school, such as anxieties about crime. Tr. 302. REDACTED also demonstrated fixations on “technology and charging his devices.” Tr. 303-304; see also Ex. 4 at 8.
  6. REDACTED did not express to REDACTED any experiences of, or concerns about, mistreatment or bullying by school staff or other students. Tr. 303-304.

May 24, 2021 IEP Meeting

  1. The District convened a meeting on May 24, 2021 to develop an IEP for REDACTED for the 2021-2022 school year, in which REDACTED would be a REDACTED-grade student. Ex. 4; Tr. 309.
  2. REDACTED participated in this meeting as the school psychologist. Tr. 307; Ex. 4 at 1.
  3. Among the concerns of District personnel present at the meeting were REDACTED’s inconsistent participation in remote learning and its impact on REDACTED’s work towards attaining his REDACTED grade IEP goals. Tr. 310-311. As a result, they “maintained” and “kind of rolled over” “a lot of the goals” in developing REDACTED’s REDACTED grade IEP. Tr. 311-312; see also Ex. 4 at 2.
  4. At the meeting, REDACTED expressed that REDACTED was not receiving the education he needed in the REDACTED schools and that she was considering out-of-district placements for REDACTED Tr. 312.
  5. The CSE recommended that REDACTED, for REDACTED grade, attend the District’s high school in a 12:1:1 special class for ELA, math, social studies, and learning center and an ICT class for science. The CSE also recommended that REDACTED receive the related services of speech-language and occupational therapies and counseling. Ex. 4 at 1, 13; Tr. 313. The CSE offered, but REDACTED refused, parent training and counseling. Ex. 4 at 14.
  6. The CSE also recommended that REDACTED receive summer services of specialized instruction in ELA and math and the related services of speech/language and occupational therapies. Ex. 4 at 15. The CSE recommended summer services for REDACTED because “he did not access instruction for the bulk of the 2020-2021 school year.” Ex. 4 at 2.
  7. REDACTED agreed with the above recommendations because REDACTED needed “specialized instruction” in a small class setting with related services, including counseling to address his social-emotional needs. Tr. 313. He opined that the IEP team’s recommendations were consistent with REDACTED REDACTED’s recommendations. Tr. 314.
  8. District personnel undertook a search for an out-of-district placement at REDACTED’s request. Ex. 2 at 1; Ex. 4 at 2. REDACTED was accepted at a REDACTED program. Ex. 2 at 1.

June 23, 2021 IEP Meeting

  1. The CSE reconvened on June 23, 2021 in order to consider a placement for REDACTED at REDACTED in a 12:1:4 program, known as the REDACTED program, located at REDACTED High School. Ex. 2; Tr. 314-315, 325.
  2. REDACTED was the principal of REDACTED’ district-based high school programs. Tr. 688. She is a New York State certified teacher, building administrator, and district level administrator. Tr. 689. Ms. REDACTED attended the June 23, 2021 IEP meeting. Tr. 694.
  3. The REDACTED program at REDACTED High School (hereinafter “REDACTED REDACTED”) is designed for high school students with disabilities in REDACTED and REDACTED grades who are uncertain as to whether they would pursue a Regents diploma or pursue an alternate assessment program. Tr. 698, 775. The program offers Regents classes of English 9, Living Environment, and Global History 1 and 2. Tr. 698-699. The program provides math remediation and instruction in pre-algebra skills, structured instruction in reading and writing, career readiness, and attention to social-emotional skills. Tr. 699, 702-703, 780.
  4. Classes at REDACTED are very small and often include only three to five students with one teacher and four teaching assistants. Tr. 700. The teaching assistants provide individualized attention and support to the students. Tr. 700-701.
  5. The school day starts with a support period for students to receive individual assistance with material that they might not understand, with assistance in preparing for tests or quizzes, and with homework. Tr. 702.
  6. Students who decide to pursue an alternate assessment program after REDACTED grade remain at the REDACTED High School site for a program that includes vocational skills training; students who decide to pursue a Regents diploma leave the program for Regents-bound programs at other high schools. Tr. 698, 775.
  7. At the IEP meeting, the CSE recommended that REDACTED attend the 12-month program at REDACTED and pursue a Regents diploma. Tr. 317-318, 320-322. The CSE recommended that REDACTED commence his enrollment at REDACTED in summer 2021 in order to assist in REDACTED’s transition to the new program. Tr. 317-318, 690.
  8. The CSE recommended that REDACTED receive the related services of speech/language therapy (two 30-minute sessions per week in a small group), occupational therapy (two 30-minute sessions per week in a small group) and counseling (one 30-minute session per week in a small group). Ex. 2 at 1, 13. The IEP also provided for parent training and counseling for REDACTED Ex. 2 at 14.
  9. The IEP included post-secondary goals as well as annual goals in the areas of study skills, reading, writing, math, speech/language, social/emotional, and fine motor skills. Ex. 2 at 10-12.
  10. The IEP included supplementary aids and services, modifications and accommodations tailored to REDACTED’s learning needs: structure and predictable routines; refocusing and redirection to ensure that REDACTED is initiating and attending to classroom tasks; having REDACTED paraphrase teacher directions and instructions; directions repeated and rephrased; teacher feedback, breaking down long-term assignments; graphic organizers for written work; additional time to complete assignments; visual supports; and a modified curriculum with the content and complexity of classwork reduced as appropriate for REDACTED Ex. 2 at 13-14.
  11. Testing accommodations were also included on the IEP. Ex. 2 at 15.
  12. The IEP provided for bus transportation with a bus attendant. Ex. 2 at 17.
  13. The REDACTED program was consistent with REDACTED REDACTED’s recommendations in that the class size was no more than 12 students, that the program was located in a public high school building, and that the program provided significant adult support and classroom accommodations. Tr. 319-320; see also Ex. 7.

Summer 2021 and the Start of the 2021-2022 School Year

  1. Prior to the commencement of REDACTED’s enrollment at REDACTED Ms. REDACTED met with REDACTED and reiterated, among other things, that the REDACTED program at REDACTED High School was for REDACTED and REDACTED grade students who were not sure whether they were going to pursue a Regents diploma or an alternate assessment program and that, for REDACTED grade, the students pursuing a Regents diploma transfer out of the program and attend other high schools. Tr. 691; see also Tr. 698.
  2. REDACTED was adamant that REDACTED attain a Regents diploma. Tr. 693.
  3. REDACTED attended REDACTED as of summer 2021. Tr. 691-692, 696.
  4. During summer 2021, REDACTED had difficulties “getting to school consistently” and on time but otherwise was “thriving” and “doing well academically” at REDACTED. Tr. 327, 328.
  5. REDACTED was resistant to getting on the bus to go to school. Ms. REDACTED assigned a REDACTED staff member to develop a plan to transition REDACTED into the school building. Tr. 1009-1010; Ex. 28.
  6. On cross-examination, Ms. REDACTED asserted, for the first time in this proceeding, that REDACTED staff placed REDACTED in a room by himself for the first week of school and, as a result, he was afraid to go to school. Tr. 1011-1012. There are no allegations in any of the DPCs relating to REDACTED’s transition to REDACTED or to staff isolating REDACTED, nor did REDACTED assert such an event in her direct testimony, nor is such an event referenced in REDACTED’s extensive correspondence with REDACTED, and I find REDACTED’s testimony on this point not credible.
  7. REDACTED was absent from the REDACTED summer program for 17 out of 30 days. He was tardy one day. Ex. 19; Tr. 717-718, 720, 724-725.
  8. When REDACTED returned to school in September 2021, he “transitioned well,” worked in class when he attended, and developed relationships with school staff and peers. However, he did not attend school consistently. Tr. 714-715.
  9. REDACTED staff telephoned REDACTED to inquire about REDACTED’s absences; REDACTED responded that REDACTED was ill or was injured in some way that prevented him from attending school. Tr. 715.
  10. During one telephone call between Ms. REDACTED and REDACTED at the beginning of the summer 2021 session, REDACTED asserted that she was not sending REDACTED to school because, she asserted, physical restraints were being used all day on students. Tr. 726-727. Ms. REDACTED discussed REDACTED’s concerns and explained to REDACTED that “there [was] little to no restraints ever” employed at REDACTED. Tr. 726. I do not give credence to the substance of REDACTED’s assertions to Ms. REDACTED about restraints because there are no allegations in any of the DPCs relating to restraints at REDACTED, nor did REDACTED assert such concerns in her direct testimony, nor are such concerns referenced in REDACTED’s extensive correspondence with REDACTED.
  11. REDACTED was emailing REDACTED teachers, administrators, and the school nurse multiple times per day. REDACTED expressed concerns about REDACTED’s homework completion and how to help REDACTED with his homework. Tr. 332-333.
  12. To address these, and other concerns of REDACTED, REDACTED and District personnel arranged for biweekly virtual meetings for REDACTED with REDACTED and Ms. REDACTED to discuss ongoing concerns that REDACTED might have. Tr. 711, 985-986. These meetings were in addition of the one hour per month of parent counseling and training recommended in REDACTED’s IEP. Tr. 333-334, 713.
  13. Despite Ms. REDACTED consistently sending Zoom invites for the biweekly meetings, REDACTED participated in only two such meetings. Tr. 336-337, 712-713, 1062.
  14. At the meetings that did occur, REDACTED raised concerns about REDACTED’s homework, the frustration that REDACTED experienced at home with his homework, and academics. She did not raise concerns about bullying. Tr. 431-432-433, 489, 491.

October 6, 2021 IEP Meeting

  1. The CSE convened on October 6, 2021 to consider REDACTED’s request for a 1:1 aide for REDACTED Tr. 325-326, 329, 715-716; Ex. 3 at 1. REDACTED participated in this meeting. Tr. 714.
  2. REDACTED personnel reported at the meeting that REDACTED was “doing well academically” and “making connections with peers.” Tr. 340; see also Ex. 3 at 1.
  3. Ms. REDACTED and REDACTED staff believed that a one-to-one aide was unnecessary for REDACTED because REDACTED’s classes at REDACTED were intensively staffed. There were four to six students in the Regents classes with a teacher and three to four teaching assistants.[7] Tr. 716. They informed REDACTED that a dedicated 1:1 aide was unnecessary and, furthermore, would not foster REDACTED’s independence. Tr. 330, 337-338.
  4. REDACTED also requested that counseling be removed from the IEP and disagreed with a counseling goal relating to identifying and using skills to cope with negative emotions such as frustration and REDACTED. Tr. 327; see also Tr. 705-706 (REDACTED remained resistant to REDACTED receiving counseling); Ex. 3 at 12. The CSE maintained both counseling (because REDACTED was not missing any academics in order to participate in counseling) and the objected-to goal (because it was important for REDACTED). Tr. 327; Ex. 3 at 1, 12.

Remainder of the 2021-2022 School Year

  1. After the October 2021 IEP meeting, REDACTED continued to request a 1:1 aide and homework help for REDACTED Ms. REDACTED responded to these requests by explaining that REDACTED needed to attend school regularly and on time in order to access instruction as well as access the morning support period during which he could receive 1:1 support and homework help. Tr. 736-737.
  2. REDACTED’s absenteeism continued. At the end of October 2021, REDACTED reported that REDACTED had a fever; at the beginning of November and in December, REDACTED was bringing REDACTED to doctors to be tested for REDACTED and then REDACTED. Ex. 28; Tr. 1019. REDACTED testing was negative. Ex. 28 at 7-11, Tr. 1021.
  3. REDACTED personnel discussed REDACTED’s attendance with REDACTED by telephone and emphasized that, while REDACTED should remain home when ill, he otherwise needed to attend school. Tr. 348. Notes submitted by REDACTED to REDACTED to excuse absences were not consistent, and a “majority” of absences were “unexcused.” Tr. 348-349; see also Ex. 28.
  4. In addition to absences, REDACTED was also, on a number of occasions, tardy in arriving at school. Tr. 349.
  5. REDACTED staff’s telephone calls to REDACTED about REDACTED’s absences continued throughout the school year; REDACTED continued to respond to these inquires by stating that REDACTED was sick, was waiting for results of REDACTED tests, or his leg or hip was bothering him. Tr. 721-722.
  6. During the above-referenced telephone calls relating to attendance, REDACTED did not indicate that REDACTED was absent due to bullying or REDACTED. Tr. 722.
  7. REDACTED and REDACTED personnel (including Ms. REDACTED and REDACTED’s teachers) also engaged in extensive email correspondence about REDACTED’s absenteeism. Ex. 28. In the emails, REDACTED personnel expressed concerns about REDACTED missing days of school, missing instruction, missing assignments (and the assignments accumulating), arriving late to school, and REDACTED’s health and well-being; and about REDACTED not following school protocols when she dropped REDACTED off at school late. Ex. 28 passim.
  8. When REDACTED responded to the above emails, she stated that REDACTED had been ill or was going to doctor’s appointments. Ex. 28 passim.
  9. In her extensive 2021-2022 school year email correspondence with REDACTED personnel about REDACTED absences, REDACTED did not reference that REDACTED was absent from school because he was bullied or afraid to go to school. Ex. 28 passim; see also Tr. 1025. The lack of references to bullying in REDACTED’s extensive email correspondence about REDACTED’s absences calls into question the credibility of REDACTED’s assertions that REDACTED was absent from school due to bullying and fear of bullying.
  10. From September 2021 through June 2022, REDACTED was absent from school for 81 days. He was tardy eight days. Ex. 19; Tr. 719-721.
  11. Ms. REDACTED opined that REDACTED’s absences resulting in loss of instructional time and the loss of the opportunity to build consistency and routine. Tr. 726.
  12. During the 2021-2022 school year, REDACTED did not participate in parent training and counseling provided by the REDACTED school psychologist because, as REDACTED informed REDACTED staff, REDACTED attended REDACTED for instruction, and not counseling, and neither she nor REDACTED needed counseling. Tr. 709; see also Tr. 1062-1063.
  13. During the school year, REDACTED contacted Ms. REDACTED on about various situations at school involving REDACTED and other students. Ms. REDACTED discussed these situations with REDACTED, then spoke with REDACTED and the other student or students as well as staff members in order to investigate the situations. Tr. 727-728.
  14. These situations included:
    1. In October 2021, REDACTED reported to Ms. REDACTED that another student had hit REDACTED From discussing this report with REDACTED, the other student and staff members, Ms. REDACTED learned that REDACTED and the other student were “racing” in the halls to their next class and bumping into each other in order to be the first one into the classroom. Tr. 728-729.
    2. REDACTED also informed Ms. REDACTED that the other student was his friend and that REDACTED had “made” him say that the other student had hit him. Tr. 729-730.
    3. Ms. REDACTED took remedial action by providing “explicit instruction” to REDACTED and the other student about how to walk in the hallways appropriately and by informing the boys that if they did not walk appropriately in the hallways, they would be dismissed from classes at separate times. Both REDACTED and the other student complained to Ms. REDACTED that they wanted to spend time with each other during change of classes and did not want to be separated. Tr. 729.
    4. Ms. REDACTED had a follow-up telephone call or meeting with REDACTED and discussed the incident and the information that Ms. REDACTED had gathered. Ms. REDACTED also reported to REDACTED the statements that REDACTED had made about REDACTED Tr. 730, 755-758.
    5. In or about December 2021, REDACTED informed Ms. REDACTED of an incident in gym in which REDACTED was hit by a ball during a dodgeball game. Tr. 730-731. Ms. REDACTED investigated the incident (including speaking with REDACTED, the other students involved, and staff members who were present) and learned that REDACTED had been hit by a ball in gym during a dodgeball game. Tr. 731-732.
    6. In speaking with REDACTED, Ms. REDACTED learned that REDACTED’s greatest concern was the possibility of being separated from his friends and not being able to spend time with them. Tr. 731-732.
    7. Ms. REDACTED explained the results of her investigation to REDACTED Tr. 731-732.
    8. Later in the school year, Ms. REDACTED spoke with REDACTED, another student, and the cafeteria staff about lunchroom interactions that involved the boys tapping each other’s shoulders. Tr. 732-733. REDACTED reported to Ms. REDACTED that he and his friends were playing a game and that they liked to sit together and “have fun at lunch.” Tr. 734. REDACTED wanted to continue to sit at the table with his friends. Tr. 734.
    9. Ms. REDACTED reported to REDACTED that REDACTED and the other boys were playing a game. Tr. 733.
  15. Ms. REDACTED explained that REDACTED investigated allegations of bullying by talking to the individuals involved, determining if the alleged incident constituted bullying, and, if determined to constitute bullying, then Dignity for All Students Act (“DASA”) procedures would be followed and a remedial plan formulated. Tr. 735-736, 764. None of the above-described incidents were determined to constitute bullying. Tr. 760.
  16. Following the three above-described incidents, REDACTED did not indicate to Ms. REDACTED that she was keeping REDACTED out of school, or that REDACTED was school-phobic, as a result of these incidents. Tr. 737-738.
  17. During the 2021-2022 school year, REDACTED “tried his best” at school, worked hard and to the best of his abilities, learned to ask for help, got along with his peers, and made some academic progress despite his inconsistent attendance. Tr. 740, 747; see also Exs. 9, 10, 11, 12, 13. Ms. REDACTED opined that REDACTED wanted to “please” his teachers and his mother, REDACTED Tr. 747.
  18. In his classes, REDACTED worked on vocabulary, reading comprehension, and producing written work utilizing graphic organizers; he struggled with reading comprehension, particularly processing and sequencing, and producing written work. REDACTED participated actively in and enjoyed math class, where he was working on pre-algebra skills and fractions; he could add, subtract, multiply and divide positive and negative numbers with “minimal assistance.” Ex. 9 at 5; Tr. 742-732; see also Ex. 2 at 11-12 (IEP goals), Ex. 14 at 4-5.
  19. At REDACTED’s request, REDACTED personnel tested REDACTED in March 2022. See Ex. 9. On the WJ-IV, REDACTED performed in the low range in most areas, particularly in reading comprehension (3.5 grade equivalent level), and math (2.9-3.0 grade equivalent levels), with the exception of reading fluency (12.8 grade equivalent level). Ex. 9 at 1-4.
  20. The testing results were consistent with how REDACTED was performing in class. Tr. 742.
  21. REDACTED made gradual progress on his IEP goals for remaining on task, reading comprehension, math computation and pre-algebra equations; his progress in writing and some of the reading comprehension goals was “inconsistent” and impacted by his absenteeism. Ex. 10.
  22. REDACTED made progress on his counseling goals; he was improving his communication skills with his peers and using coping skills when he was experiencing anxieties at school. Ex. 11 at 3.
  23. REDACTED made “significant progress” on his speech/language goal relating to using context clues to understand vocabulary but did not meet his goal relating to drawing inferences and conclusions from texts, which the therapist attributed to his “frequent absences.” Ex. 12 at 2.
  24. REDACTED made some progress on his occupational therapy goals relating to keyboarding, but his progress was impeded by lack of attendance. Ex. 13 at 2, Ex. 15.
  25. The credible testimony in the record establishes that REDACTED implemented, during the 2022-2023 school year, the modifications, classroom accommodations and supplementary aids, testing accommodations, and transition activities set forth in REDACTED’s IEPs. Tr. 701-711, 784-786, 788-789, 837.
  26. Ms. REDACTED opined that REDACTED did not need one-to-one tutoring during the 2021-2022 school year because he was passing his classes and receiving extensive Regents review and the support class during first period. Tr. 770.

The April 29, 2022 IEP Meeting

  1. The CSE convened an IEP meeting for REDACTED on April 29, 2022 to develop his IEP for the 2022-2023 school year. Tr. 342, 346, 738; Ex. 1.
  2. REDACTED participated in this meeting as a school psychologist; Ms. REDACTED, Ms. REDACTED (REDACTED’s special education teacher), Mr. REDACTED (special education teacher), Ms. REDACTED (REDACTED special education teacher), and REDACTED also attending the meeting. Tr. 345; Ex. 1 at 1.
  3. REDACTED personnel expressed their concerns about REDACTED’s extensive absenteeism and explained that improving his attendance would improve his learning. Tr. 347, 739, 748; Ex. 1 at 1.
  4. REDACTED personnel described REDACTED’s progress both academically and socially, explained that REDACTED did “well” when he attended school, and raised “what kind of progress could there be if he was [at school] five days a week,” and stated that REDACTED’s inconsistent attendance was “the limiting factor” to REDACTED’s learning. Tr. 350-351; see also Tr. 739; Ex. 1 at 1, 8, 9; Exs. 9, 10.
  5. At the meeting, REDACTED stated that she felt that REDACTED was a supportive program for REDACTED and that REDACTED liked the program. Ex. 1 at 1.
  6. REDACTED did not raise any concerns that REDACTED was bullied at REDACTED. Tr. 350.
  7. The CSE recommended that REDACTED continue to attend REDACTED in a 12:1:4 special class and receive the related services of speech and occupational therapies (each for two 30-minute sessions per week in a small group) and counseling (one 30-minute session per week in a small group).[8] Tr. 351-352; Ex. 1 at 1, 15. REDACTED agreed with these recommendations. Tr. 359.
  8. The CSE discussed and developed goals for REDACTED in the areas of study skills, reading, writing, math, speech/language, social/emotional, and transition. Tr. 356-357, 746; Ex. 1 at 12-14.
  9. The IEP addresses REDACTED’s absenteeism with a study skills goal directed to REDACTED arriving for class on time and with a post-secondary goal for REDACTED “to attend school on a regular basis and complete the necessary coursework required for graduation with a Regents high school diploma.” Ex. 1 at 13-14.
  10. REDACTED opined that REDACTED’s absences had a deleterious effect on REDACTED’s learning because, given his documented difficulties with processing and retention of material, he needed to be in school receiving instruction from his teachers and support from his related services providers. Tr. 355. Furthermore, REDACTED’s “sporadic” attendance meant that his instruction was “disjointed” and his “success” in learning was “hindered.” Tr. 356.
  11. The IEP states that (a) the CSE recommended that REDACTED continue at REDACTED in his current program because the program was appropriate to address REDACTED’s needs and (b) the “main impediment” to REDACTED’s progress was his absenteeism. Ex. 1 at 2.
  12. The CSE also recommended that REDACTED continue with standard assessments and seek a Regents diploma. Tr. 352; Ex. 1 at 14.
  13. The IEP again included supplementary aids and services, modifications and accommodations tailored to REDACTED’s learning needs: structure and predictable routines; refocusing and redirection to ensure that REDACTED is initiating and attending to classroom tasks; having REDACTED paraphrase teacher directions and instructions; directions repeated and rephrased; teacher feedback, breaking down long-term assignments; graphic organizers for written work; additional time to complete assignments; visual supports; and a modified curriculum with the content and complexity of classwork reduced as appropriate for REDACTED Ex. 1 at 15-16; Tr. 358.
  14. Testing accommodations were also included on the IEP. Ex. 1 at 17-18.
  15. Bus transportation with an attendant was included in the IEP. Ex. 1 at 19.
  16. The CSE recommended a summer program for REDACTED in case he needed to retake the Living Environment Regents examination or recover credits and to ensure that that he did not lose academic skills that he had gained during the 2021-2022 school year. Tr. 746; see also Ex. 1 at 1, 17.

The October 2022 IEP Meeting

  1. The CSE reconvened on October 13, 2022 at REDACTED’s request to discuss her concerns about REDACTED’s academics, his difficulties with completing homework at home, appropriateness of IEP goals, his difficulties transitioning from the summer program to the school year program, and bullying. Tr. 359-361, 365, 509-512; 985-987; Ex. 5 at 1-2.
  2. REDACTED chaired the meeting; Tr. 512-513. Ms. REDACTED, the District’s Director of Special Education and Support Services, is a New York State certified general and special education teacher (kindergarten through grade 12) and a licensed school building leader and school district leader. Tr. 506-507.
  3. The meeting was also attended by REDACTED, the REDACTED principal; REDACTED’s special education teacher; the REDACTED school psychologist; REDACTED and REDACTED Ex. 5 at 1; Tr. 789.
  4. REDACTED personnel expressed their concerns about REDACTED’s attendance and that his absenteeism was impacting his learning. Tr. 513-514, 814; Ex. 5 at 1.
  5. REDACTED responded that REDACTED was demonstrating “school-avoidant behaviors” and had experienced a bout of REDACTED. Tr. 514. According to REDACTED, REDACTED had tested positive for REDACTED on September 28 and therefore had not attended school since that date. Ex. 5 at 1.
  6. REDACTED referenced an incident in which another student had kicked REDACTED’s backpack. Tr. 361, 514; Ex. 5 at 1. REDACTED personnel responded that they were aware of the incident, had investigated the incident by interviewing students and reviewing school video, and had addressed the incident. Tr. 361, 363-364, 514; Ex. 5 at 1-2.
  7. The CSE added a weekly individual counseling for REDACTED in order to address REDACTED’s concerns about REDACTED’s return to school, REDACTED, and “school-avoidant behaviors.” Tr. 361, 515.
  8. REDACTED opined that the increase in counseling would address REDACTED’s difficulties in transitioning back to school because it provided him an opportunity to build a rapport with the school psychologist and discuss his anxieties and concerns (including any concerns about interactions with other students) in a private one-to-one setting. Tr. 366; see also Tr. 538, 540 (Ms. REDACTED’s testimony).
  9. REDACTED opined that the increase in counseling would also provide social and emotional support for REDACTED to assist in addressing REDACTED’s school-avoidant behaviors. Tr. 528-529.
  10. REDACTED stated that REDACTED needed a “private” psychologist to assist in understanding his needs. Tr. 832. Mr. REDACTED informed REDACTED that REDACTED would not permit a “private” psychologist to observe REDACTED in the classroom due to the privacy concerns of the other students in the class. Tr.833-834, 861-862; Ex. 5 at 2. REDACTED was unwilling to provide the name of the psychologist or permit REDACTED staff to speak with the psychologist. Ex. 5 at 2.
  11. REDACTED’s attendance was a “priority” for District personnel, because if a student is not attending school, he is not receiving instruction. Tr. 516, 836-837.
  12. The IEP continued to include goals to address REDACTED’s needs in the areas of attendance and issues possibly impacting his attendance: goals to address arriving at class and for activities in a timely manner, self-monitoring (by checking his work for completeness and accuracy and by attending to and following written directions) in order to develop independence, strategies to demonstrate his understanding of material in order to address some of his REDACTED, and building self-esteem and “feel[ing] good about himself” in order to encourage school attendance. Tr. 516-517, 519-520, 524; Ex. 5 at 13-14.
  13. The IEP continued to include supplementary aids and services, modifications and accommodations tailored to REDACTED’s learning needs: structure and predictable routines; refocusing and redirection to ensure that REDACTED is initiating and attending to classroom tasks; having REDACTED paraphrase teacher directions and instructions; directions repeated and rephrased; teacher feedback, breaking down long-term assignments; graphic organizers for written work; additional time to complete assignments; visual supports; and a modified curriculum with the content and complexity of classwork reduced as appropriate for REDACTED Tr. 530-537; Ex. 1 at 15-16.
  14. Parent training and counseling was included in REDACTED’s IEP due to the concerns that REDACTED raised about REDACTED’s difficulties completing homework. Tr. 535.
  15. REDACTED requested one-to-one support for REDACTED; the CSE denied this request because REDACTED, when he attended school, “was able to access the learning environment and the curriculum, and access it successfully without that additional support . . . .” Tr. 362.
  16. School personnel reported that REDACTED was “an engaged learner” when he attended school, that he had “connections” with peers, and that he had “adequate support” in the classroom. Tr. 364. School staff “just wanted” REDACTED to attend school “every day” to benefit from the instruction and services at school. Tr. 364-365; see also Tr. 540 (Ms. REDACTED testimony that high school content-heavy classes require a student’s attendance in order for the student to learn the material and make progress).
  17. As to homework, CSE personnel informed REDACTED that REDACTED received support throughout the school day to reinforce the material taught in school and that his first class period each day was a “support period” during which he could obtain help with his homework from his teachers. Tr. 542.
  18. REDACTED and District personnel determined to continue the biweekly meetings with REDACTED Tr. 362. Mr. REDACTED, the REDACTED principal during the 2022-2023 school year, would meet with REDACTED Tr. 362-363, 787; Ex. 5 at 2.
  19. REDACTED agreed that REDACTED should continue to attend REDACTED for the 2022-2023 school year. Tr. 367.

The 2022-2023 School Year

  1. REDACTED was enrolled in REDACTED grade credit-bearing classes, including Global History 2. Tr. 780. REDACTED was the only student in his Global History 2 class. Tr. 780-781, 784.
  2. REDACTED’s difficulties with absenteeism continued during the 2022-2023 10-month school year (from September 2022 through June 2023). Tr. 779; Ex. 19. REDACTED was absent 82 days. Exs. 19, 21; Tr. 819, 822-825, 827.
  3. REDACTED had one excused absence and 158 unexcused absences for the first period of the day. Ex. 21 at 5; Tr. 825. REDACTED missed most of the first period academic support sessions, during which, had he attended, he would have received homework assistance and 1:1 teacher support. Tr. 543, 782, 826.
  4. Mr. REDACTED attempted to address REDACTED’s absenteeism by remaining in contact with REDACTED via email and text, by sending attendance letters to REDACTED, by keeping the District updated as to REDACTED’s absences, and by making a home visit. Tr. 815-816.
  5. Mr. REDACTED made a home visit to REDACTED’s home in October 2022. He contacted REDACTED in writing to inform her that he would be making the home visit. Ex. 29 at 12. Mr. REDACTED made the home visit with the REDACTED school psychologist who worked with REDACTED Mr. REDACTED rang the doorbell and texted REDACTED to inform her that they were at the door. No one answered the door; REDACTED responded by text that she was at work and that REDACTED was not at home because he was in the REDACTED with an uncle and cousin. Tr. 815-817.
  6. Mr. REDACTED contacted Children’s Protective Services. Tr. 817-818.
  7. At the beginning of the school year, REDACTED participated in some of the biweekly telephone calls with Mr. REDACTED; by the winter months, REDACTED no longer participated in the meetings because she stated that the meetings were not helping REDACTED Tr.787, 1062.
  8. Mr. REDACTED continued to speak with REDACTED about REDACTED’s absenteeism. REDACTED reported to Mr. REDACTED that REDACTED’s continued absences were due to illness or missing the school bus. REDACTED did provide some medical notes regarding illness. Tr. 845. REDACTED also asserted that REDACTED’s absences were related to alleged bullying. Tr. 845-846.
  9. REDACTED and REDACTED personnel (including Ms. REDACTED, Mr. REDACTED and REDACTED’s teachers) engaged in extensive email correspondence about REDACTED’s absenteeism. Ex. 29. In the emails, REDACTED personnel expressed concerns about REDACTED missing days of school, missing instruction, missing assignments, arriving late to school, and REDACTED’s health and well-being. When REDACTED responded, she stated that REDACTED had been ill or was going to doctor’s appointments. She also submitted various doctor’s notes.[9] In this extensive correspondence, REDACTED did not reference that REDACTED was absent from school because he was bullied or afraid to go to school. Ex. 29 passim.
  10. On cross-examination, REDACTED contended that REDACTED did not want to attend school due to bullying; however, none of her contemporaneous emails regarding REDACTED’s absences reference bullying. See, e.g., Tr. 1030, 1032-1033, 1035-1037; Exs. 28, 29. The lack of references to bullying in REDACTED’s extensive email correspondence about REDACTED’s absences calls into question the credibility of REDACTED’s assertions that REDACTED was absent from school due to bullying and fear of bullying. Given the consistency of this inconsistency between REDACTED’s testimony and her contemporaneous correspondence (Exs, 28 and 29), I find that REDACTED’s testimony that REDACTED’s excessive absences were due to bullying and/or fear of bullying is not credible.
  11. During the 2022-2023 school year, REDACTED contacted REDACTED personnel to report alleged incidents of bullying and alleged incidents of danger to students in the school building:
    1. In or about early to mid-September (as referenced by REDACTED during the IEP meeting, ⁋ 110, above), REDACTED complained to Mr. REDACTED that another student (for the purposes of this Decision identified as REDACTED) had kicked REDACTED’s backpack at school. Tr. 790. Mr. REDACTED spoke with the students and staff present at the time of the alleged incident; none of these individuals had observed anyone kicking REDACTED’s backpack. Mr. REDACTED also spoke with REDACTED, who denied that anyone had kicked his backpack. Tr. 791-793, 795.
    2. Mr. REDACTED followed up with REDACTED and reported to her that no one at REDACTED had observed the alleged incident but that REDACTED staff would “keep an eye out” to prevent any future incidents. Tr. 796.
    3. In any event, REDACTED wrote a letter of apology to REDACTED for kicking the backpack. Ex. C.
    4. In January, REDACTED reported to Mr. REDACTED that another student (for the purposes of this Decision identified as REDACTED) had bitten REDACTED on the knuckle. Tr. 797; Ex. 22.
    5. REDACTED personnel completed a “Suspected DASA Incident Reporting Form” relating to this alleged incident, and Mr. REDACTED conducted an investigation. Exs. 22, 23.
    6. Mr. REDACTED spoke with REDACTED’s one-to-one aide, who reported to Mr. REDACTED that she had not seen such an incident. Students were also questioned, but none of the students had observed such an incident. Tr. 798; Ex. 23.
    7. Mr. REDACTED also spoke with REDACTED, but he could not recall the substance of the discussion. Tr. 798-799. The result of the investigation was that the incident was “unfounded.” Ex. 23.
    8. On January 6, REDACTED reported to Mr. REDACTED that REDACTED had told her that there were homeless people entering the high school building and that “there was sex going on in one of the bathrooms between a teacher and a student.” Tr. 799; see also Tr. 860, 984-985. Mr. REDACTED involved the REDACTED High School administration and School Resource Officer and REDACTED personnel for an investigation and a meeting with REDACTED and REDACTED Tr. 799-800, 855.
    9. At the meeting, REDACTED was unsure about what he had seen; school video recordings showed that there were no homeless people in the school building and that there “was nothing going on in the bathrooms” during the time period that the alleged incident was reported to have occurred. Tr. 800-802.
    10. REDACTED’s letter included in the DASA investigation form also makes reference to doughnuts and 5-Hour Energy drinks. Ex. 24 at 5. REDACTED had reported that doughnuts were distributed during REDACTED’s speech-language therapy group and that “doughnuts were making [REDACTED] homosexual.” Tr. 809-810; see also Tr. 858; Ex. B.
    11. REDACTED informed Mr. REDACTED that he had not said anything about doughnuts or energy drinks to REDACTED Ex. 25.
    12. In March, REDACTED reported that REDACTED had been hit by REDACTED at lunch. Tr. 803; Ex. 24 at 5.
    13. REDACTED also alleged that REDACTED had been the victim of numerous acts of bullying from REDACTED and was afraid to attend school. Tr. 804; Ex. 24 at 5.[10] While REDACTED’s letter included in the March 2023 DASA documentation (Ex. 24 at 5) states that REDACTED had “missed many days” of school due to bullying, REDACTED informed Mr. REDACTED that he was not afraid to come to school and was not sure why his mother had written this letter. Tr. 806-807.
    14. Mr. REDACTED spoke with the students and staff and also filed a DASA report because REDACTED had, according to REDACTED, been involved in another alleged incident with REDACTED Tr. 803-804; Ex.24 (DASA report).
    15. Mr. REDACTED involved REDACTED High School administrators in order to review video recordings made at the time of the alleged incident. Tr. 804. According to Mr. REDACTED, the video was “inconclusive.” Tr. 807.
    16. Mr. REDACTED interviewed REDACTED, who stated that he was not afraid to come to school, and that REDACTED was his friend. Tr. 807; Ex. 25.
    17. Mr. REDACTED also interviewed REDACTED, who stated that REDACTED was his friend, that they were playing during lunch, that he did not mean to hurt anyone, and that he was sorry if he had hurt anyone. Tr. 807; Ex. 25.
    18. The REDACTED lunch staff who were present at the time of the alleged incident stated that they had not observed any such incident. Tr. 808.
    19. Mr. REDACTED prepared a DASA investigation form stating that the above investigation indicated there had been no incident of bullying, harassment or discrimination. Tr. 809; Exs. 24, 25. However, there was a determination to separate REDACTED and REDACTED at lunch “out of [an] abundance of caution” to prevent “any other touching or playing around.” Tr. 809; see also Ex. 25.
    20. REDACTED refused to discuss the findings of the DASA investigation with REDACTED staff. Ex. 25 at 1.
    21. REDACTED testified that on May 1, 2023, REDACTED reported to her that another student slapped him on the knee. Tr. 976. She stated that she reported this incident to REDACTED High School administrators on May 2. She asserted that “nothing was done” with respect to her report and that she again asked for a bullying protection plan. Tr. 977.
  12. REDACTED acknowledged that REDACTED did not report incidents of bullying to REDACTED with the exception of one report. According to REDACTED, this single report was made by REDACTED to the REDACTED “lunch lady” in 2023 when REDACTED allegedly hit REDACTED in the head. Tr. 996, 1001. REDACTED did not know the name of the “lunch lady.” Tr. 996; Ex. B.
  13. On cross-examination, REDACTED added that REDACTED also informed the REDACTED school psychologist that he was bullied. Tr. 1002, 1004-1005.
  14. During the 2022-2023 school year, REDACTED made progress in reading, but he continued to need support with answering reading comprehension questions and still struggled with processing and sequencing; he worked on the Global History 2 curriculum, worked on math calculations with a calculator and on math word problems, and participated in science class. Exs. 16, 18.
  15. All of REDACTED’s academic teachers’ reports were unequivocal in stating that REDACTED “need[ed] to improve his attendance in order to succeed in the academic environment” and that his “excessive absences have had a negative impact on his ability to learn and retain information.” Ex. 16 at 1, 2; see also Ex. 18.
  16. Mr. REDACTED opined that REDACTED did not need tutoring during the 2022-2023 school year; rather, REDACTED needed to attend school consistently. Tr. 847.
  17. REDACTED made progress in speech and language therapy: he “greatly increased his attention to academic and more complex materials,” improved his understanding and attending to answering more complex questions and identifying relevant information in texts; was asking for help independently; and “increased his expressive and receptive language skills.” Ex. 17 at 1-3; Tr. 479.
  18. The speech therapist observed that while REDACTED made progress on his speech goals during the school year, REDACTED’s “frequent absences” interfered with his progress on his goals. Ex. 17 at 1; see also Ex. 18.
  19. The occupational therapist who worked with REDACTED reported that REDACTED was able to transition to and from class “with ease” and “manipulate typical school materials independently.” Tr. 379-380; Ex. 15.
  20. REDACTED’s individual counseling sessions focused, among a number of topics, on perceptions of social interactions and discussing and resolving issues arising in social interactions “in the moment” and at the time of the occurrence rather than “exaggerating” or “misperceiving” a “situation.” Tr. 383. This focus on social interactions was directly related to REDACTED’s IEP’s counseling goals. Tr. 383-384.
  21. The credible testimony in the record establishes that REDACTED implemented, during the 2022-2023 school year, the modifications, classroom accommodations and supplementary aids, testing accommodations, and transition activities set forth in REDACTED’s IEPs. Tr. 701-711, 784-786, 788-789, 837.
  22. During REDACTED’s time at REDACTED, Ms. REDACTED reminded REDACTED “numerous times” that the program was designed for REDACTED and REDACTED grade students and that students pursuing a Regents diploma transfer out of the program for REDACTED grade. Tr. 692. REDACTED remained adamant that REDACTED attain a Regents diploma. Tr. 693.

May 18, 2023 IEP Meeting

  1. The CSE convened on May 18, 2023 in order to develop an IEP for REDACTED for the 2023-2024 school year, REDACTED’s REDACTED grade year. Tr. 367; Ex. 6.
  2. REDACTED chaired this meeting. Tr. 367. Ms. REDACTED also attended the meeting. Tr. 544.
  3. Representatives from REDACTED attended the meeting: Mr. REDACTED, who, at the time, was the assistant principal; REDACTED’s special education teacher; an occupational therapist; and a REDACTED school psychologist. Tr. 371, 837-838; Ex. 6 at 1.
  4. The CSE reviewed the reports of a March 2023 reevaluation of REDACTED, which REDACTED performed at REDACTED’s request, and REDACTED’s most recent REDACTED progress reports. Tr. 850-852; Exs. 14, 15, 16, 17, 18. The CSE also relied upon REDACTED REDACTED’s evaluation and prior REDACTED assessments. Ms. REDACTED opined that the CSE had sufficient evaluative materials to develop an IEP and make appropriate recommendations for REDACTED for the 2023-2024 school year. Tr. 616-618, 621-622.
  5. REDACTED’s teacher administered the KTEA-3 in March 2023. Ex. 14. REDACTED scored in the below average range on the academic skills composite, with scores in the 2nd percentile on the reading composite, 3rd percentile on the math composite, and 8th percentile on the written language composite. Ex. 14 at 1-2.
  6. REDACTED personnel reported that REDACTED was safe, happy, and engaged at school and was developing friendships with peers. Tr. 591, 610. When he attended school, he completed his class work, worked on material for the Global History Regents exam, and participated in all his classes in a positive manner. Tr. 842-843.
  7. At the meeting, REDACTED personnel stated that REDACTED’s “continued lack of attendance,” specifically more than 80 school day absences, limited REDACTED’s success at school. Tr. 370; see also Tr. 842, Ex. 6 at 1-2.
  8. At the meeting, REDACTED did not attribute REDACTED’s absences to bullying or school refusal/avoidance but rather to illness and difficulties transitioning back to school after breaks. Tr. 370-371.
  9. REDACTED personnel did not recommend that REDACTED continue at the program for the 2023-2024 school year. Tr. 372, 841-842. They stated that REDACTED, due to his excessive absenteeism, was not effectively accessing the REDACTED educational program and that REDACTED did not have an appropriate program for REDACTED for REDACTED grade. Tr. 372, 843-844.
  10. REDACTED “strongly disagreed” with the recommendation that REDACTED not continue at REDACTED and expressed her desire that REDACTED continue at REDACTED for REDACTED grade. Ex. 6 at 2.
  11. After meeting for approximately one and one-half to two hours on May 18, the meeting was continued to another date. Tr. 373, 545. REDACTED agreed that it was necessary to reconvene on another date. Tr. 376; Ex. 6 at 3.
  12. During the meeting, REDACTED stated that the bus was late arriving at school in the mornings, and REDACTED was missing morning homework help, because the bus driver was stopping at Dunkin Donuts. Tr. 447-449. I do not credit this testimony.[11]

June 20, 2023 Continued IEP Meeting

  1. The CSE reconvened the IEP meeting on June 20, 2023. Tr. 375.
  2. The IEP dated June 20, 2023 encompasses the discussions, decisions and recommendations made at both the May 18 and June 20 meetings. Tr. 547-548; Ex. 6.
  3. REDACTED reiterated the 2022-2023 bullying allegations (see above at ⁋ 134) at the meeting and asserted that bullying impacted REDACTED’s learning. Tr. 369, 839; Ex. 6 at 1. REDACTED personnel reviewed with REDACTED how they had addressed the alleged incidents. Tr. 839-840; Ex. 6 at 2.
  4. REDACTED expressed her “dissatisfaction” with REDACTED’ “response to incidents of bullying” and the “DASA process” followed by school personnel. Tr. 368-369, 569-570, 609; see also Ex. 6 at 1.
  5. REDACTED stated that REDACTED did not feel safe at school and that his attendance problems were due to bullying at school. Tr. 569.
  6. School personnel reported that they followed the DASA process with respect to any reported bullying incidents and then followed up with REDACTED Tr. 368-369. They reminded REDACTED that, as a result of their investigations, they found that each of the reported incidents of alleged bullying was “unfounded.” Tr. 369, 569-570.
  7. When REDACTED again requested a bullying protection plan for REDACTED, REDACTED school personnel again informed REDACTED that REDACTED did not need such a plan because: (a) they had investigated incidents of alleged bullying and concluded that they were “unfounded” and (b) the REDACTED school psychologist opined that REDACTED’s purported difficulties were in the areas of social interaction and in his perceiving social interactions inaccurately. Tr. 385-387.[12]
  8. The June 20 meeting lasted approximately two hours, and review of the goals occupied about half of the meeting. Tr. 595.
  9. The goals were developed and discussed in detail, with Ms. REDACTED explaining each of the goals to REDACTED and answering questions that REDACTED raised about individual goals. Tr. 572, 579-580, 588, 593, 595. REDACTED indicated that she understood and agreed with the goals. Tr. 388-390.
  10. The June 2023 IEP goals included:
    1. Math goals relating to mental math strategies and to multiplication equations;
    2. Reading goals relating to utilizing contextual clues to understand unfamiliar vocabulary and to identifying the sequence of events in a story in order to improve his reading comprehension;
    3. Writing goals relating to self-correcting grammatical errors and to using graphic organizers in order to enable REDACTED to produce written work (including multi-paragraph essays) independently;
    4. Arriving to class and activities on time;
    5. Independently seeking assistance in order to complete assignments in order to develop self-advocacy skills and complete assignments in a timely manner;
    6. Speech-language goals relating to (i) speaking and listening in order to develop skills necessary to participate in sustained conversations and interact appropriately with others and (ii) language comprehension, including inferencing, identifying irrelevant information, and stating conclusions; and
    7. Social and emotional goals, including identifying “irrational thinking or cognitive distortions that occurred during the school day and identify and implement strategies for dealing with these situations.” The purpose of this goal was to encourage REDACTED to think about his perceptions and develop “strategies on how to kind of get what the realistic thing was in front of him that was happening . . . .” Tr. 590.
    8. Social and emotional goals also included REDACTED identifying feelings or fears that were interfering with his school attendance and to develop strategies to “cope with such feelings” (Tr. 590), as well as identifying his emotions and feelings (generally) and develop strategies for coping with his emotions. Tr. 573-587, 588-593, 646-647; Ex. 6 at 14-15.
  11. The CSE recommended that REDACTED continue to attend a 12:1:4 special class and receive the related services of speech therapy and counseling, all for the extended school year. Occupational therapy was changed from a direct service to a consultation. Tr. 376-377; Ex. 6 at 1.
  12. Due to REDACTED’s improvements through two periods per week of speech therapy, the CSE continued the recommendation for two periods per week of speech therapy rather than increasing the number of week speech sessions as requested by REDACTED Tr. 479-480, 606-608; Ex. 17.
  13. The CSE recommended an occupational therapy consult (rather than occupational therapy as a direct services) based upon the report of REDACTED’s occupational therapist at REDACTED that REDACTED, as an REDACTED grade student, would benefit from an occupational therapy consult with REDACTED’s teachers on issues such as typing rather than pulling REDACTED out of class for an occupational therapy session. Tr. 467-469, 602-604.
  14. The CSE recommended that REDACTED continue with one 30-minute session per week of group counseling and one 30-minute session per week of individual counseling. Tr. 608. The purpose of the individual session was for REDACTED to discuss his REDACTED and his feelings about school avoidance. Tr. 609.
  15. The IEP continued the supplementary aids and services, modifications and accommodations tailored to REDACTED’s learning needs: structure and predictable routines; refocusing and redirection to ensure that REDACTED is initiating and attending to classroom tasks; having REDACTED paraphrase teacher directions and instructions; directions repeated and rephrased; teacher feedback, breaking down long-term assignments; graphic organizers for written work; additional time to complete assignments; visual supports; and a modified curriculum with the content and complexity of classwork reduced as appropriate for REDACTED Ex. 6 at 16-17.
  16. The IEP includes multisensory instruction, including (for example) visual supports. Tr. 613-615.
  17. The CSE did not recommend a one-to-one aide for REDACTED because the small, special class with significant adult support, the classroom accommodations on the IEP, and the IEP recommendations for pacing of material, redirection, and checking for understanding addressed REDACTED’s learning needs, including his needs in the areas of comprehension and attention. Tr. 483-484. The special education teacher in th3 small, special class could address REDACTED’s specific IEP goals, and, with five adults in the classroom, REDACTED had a very high level of support. Tr. 610-611.
  18. Furthermore, a one-to-one aide would not serve the interests of a high school student who should be developing independence and preparing for life after school. Tr. 611.
  19. The CSE did not recommend a math specialist or a reading specialist for REDACTED because the 12:1:4 special class, with the specialized instruction provided in such a class, would address REDACTED’s needs across all academic areas, including math. Tr. 471-474.
  20. The IEP included extensive testing accommodations, including questions and directions read, refocusing and redirection, double time, breaks, modified classroom tests to reflect classroom instruction, large-spaced paper, and flexible setting . Tr. 596-601.
  21. The IEP continued to include bus transportation with an attendant. Ex. 6 at 20.
  22. The CSE recommended the extended school year for REDACTED in order to permit him to work towards, and receive, high school credits for courses he was not passing due to his high level of absences. Tr. 415-417, 567-568.
  23. REDACTED personnel agreed that REDACTED should continue at REDACTED for summer 2023 in order to “recover” high school credits he should have obtained during the 2022-2023 school year and to retake (if necessary) the Global History Regents examination. Tr. 419-420, 437, 848.[13] REDACTED agreed that REDACTED should continue at REDACTED for summer 2023. Tr. 439.
  24. The CSE discussed conducting a program search for REDACTED because REDACTED no longer had an appropriate program for him because it was a program designed for, and which enrolled, REDACTED and REDACTED grade students. Tr. 377, 548, 415. According the REDACTED personnel (and as described at the meeting and to REDACTED on a number of previous occasions), at the conclusion of REDACTED grade, students move to either an alternate assessment program or to a program that continues with the Regents curriculum. Tr. 548; Ex. 6 at 2.
  25. As explained to REDACTED at the meeting by REDACTED personnel, REDACTED was capable of continuing on a Regents diploma “track,” and was not a student who should be placed in an alternate assessment program. Tr. 549; see also Tr. 550-551.
  26. REDACTED personnel also stated that REDACTED did not have a program at any of its sites that was appropriate for REDACTED They stated they “felt that they weren’t able to adequately support his attendance needs. They are 45 minutes away from his home” and had done “as much intervention as they could” to address REDACTED’s lack of attendance. Tr. 549-550.
  27. There was a REDACTED site with a Regents program; the program was for students “with really significant emotional disabilities and cognitively much higher;” and this “wasn’t N.’s profile at all, so it was really not an appropriate program.” Tr. 551.
  28. The CSE recommended a program search for REDACTED Tr. 548, 552-553.
  29. REDACTED disagreed with the recommendation for a program search. Tr. 552; Ex. 6 at 2. Despite her complaints about REDACTED, she stated that she wanted REDACTED to remain at REDACTED because the program was meeting his needs and she did not want him to struggle through a transition to a new school. Tr. 420-421, 552; Ex. 6 at 2.
  30. REDACTED did not request an IEE at the May or June 2023 IEP meetings. Tr. 618.
  31. Ms. REDACTED opined that the June 20, 2023 IEP offered REDACTED a FAPE. Tr. 630-631.

The Placement Search Process

  1. District personnel planned to undertake a program search to locate a New York State approved program for REDACTED for September 2023. Tr. 421.
  2. In order for District personnel to commence such a search, REDACTED’s consent was required. Tr. 422, 553. REDACTED did not provide such consent following the June 2023 meeting, and District personnel were unable to search for a placement for REDACTED Tr. 422-423, 425.
  3. On August 9, REDACTED stated that she would consent only to application packages being sent to certain schools, under certain conditions, and with limits on the documents sent. Tr. 559-560; Ex. 35.
  4. REDACTED would consent only to the District sending the October 2022 IEP and REDACTED REDACTED’s evaluation to schools. Tr. 560, 1049, 1060; Ex. 35. This would have eliminated the more recent assessments of REDACTED and any information from REDACTED, as well as the most recent IEP. Tr. 560.
  5. Ms. REDACTED opined that if this outdated material were to be sent to schools, the schools would contact her for the additional, updated information that REDACTED refused to consent to be released to the schools. Tr. 561.
  6. REDACTED did not provide consent for the District to conduct a program search for REDACTED until late August 2023, and then she provided consent only to permit limited documents (June 2023 IEP, REDACTED’s REDACTED most recent educational and speech language testing, and REDACTED REDACTED’s report) to be sent in the application packages to schools. Tr. 554-557; Ex. 37.
  7. Applications packages typically include the student’s most recent IEP, evaluations and progress reports in order to provide the receiving school with information to make a decision about whether that school might be appropriate for the student. Tr. 556-557.
  8. The District proposed to send application packages to eight schools, all of which are (as required) New York State approved nonpublic schools or public school out-of-district placements. Tr. 557-558; Exs. 36, 44.
  9. At the end of September 2023, REDACTED was accepted at the REDACTED for a small class program consisting of eight students with one teacher and two teacher assistants. Tr. 562-564, 1057; Ex. 42. District personnel and REDACTED personnel informed REDACTED of this acceptance. Tr. 564.
  10. REDACTED responded by email that she was concerned about the class size at REDACTED; she did not agree to participate in an IEP meeting to discuss the acceptance because she wanted REDACTED to return to REDACTED and she wanted to “explore more schools.” Tr. 1057-1058. REDACTED did not accept the placement offer from REDACTED. Tr. 564; Ex. 46.
  11. None of the other schools accepted REDACTED: one school did not have an available seat, two schools stated that they did not have a program that was appropriate for REDACTED, and two schools have not responded. Tr. 565-566; Exs. 45, 47.

The 2023-2024 School Year

  1. REDACTED attended the REDACTED Summer 2023 program; he attended 28 of the 30 days of the program. Tr. 848. REDACTED “recovered” high school credits and passed the Global History Regents exam in August. Tr. 850.
  2. During his time at REDACTED (from Summer 2021 through and including Summer 2023), REDACTED earned high school credits and passed two Regents examinations. See, e.g., Tr. 1048-1049.
  3. In September 2023, the District offered a pendency program to REDACTED at REDACTED High School. See IHO Exs. VI, VII.
  4. Ms. REDACTED described how the pendency program for REDACTED was implemented at REDACTED High School and noted that REDACTED’s school attendance had continued to be inconsistent, and at some times “very poor,” during the 2023-2024 school year through the time of the hearing. Tr. 1170-1173, 1175.
  5. In September 2023, REDACTED secured some testing of REDACTED from REDACTED. Ex. D. REDACTED is a learning center with a tutoring program for students with learning disabilities, autism spectrum disorders, ADD, ADHD, and attentional and/or executive functioning challenges. Tr. 1128-1129; Ex. F. According to REDACTED, its director, REDACTED provides “one-on-one instruction using research-based multisensory techniques that are very much individualized to the needs of each student.” Tr. 1129; see also Ex. F.
  6. REDACTED administered some testing to REDACTED on September 22, 2023, and also reviewed REDACTED REDACTED’s February 2021 neuropsychological evaluation of REDACTED, an educational report, a speech-language report, and an occupational therapy report. Tr. 1127-1128, 1145, 1187-1188; Exs. D, F.
  7. REDACTED administered the testing virtually, and the testing took “a little over one hour.” Tr. 1146. REDACTED has not met REDACTED in person. Tr. 1147.
  8. REDACTED contended that she administered to REDACTED the Wide-Range Achievement Test to ascertain his reading, spelling, and math computation skills; had REDACTED complete a writing sample using the Test of Written Language; and conducted a qualitative reading inventory in order to assess his reading comprehension skills. The testing documentation consisted of five pages of REDACTED’s responses (with spelling and math scribed by REDACTED REDACTED) to various testing prompts and problems, which constituted the entirety of REDACTED REDACTED’s raw testing data. Ex. D; Tr. 1129-1130, 1134-1140; Exs. D, E, F at ⁋⁋ 15-17.
  9. From her above-described testing, REDACTED concluded that REDACTED, an REDACTED student at the time of testing, was performing at a mid-fourth grade level in decoding and spelling, a low-fourth grade level in writing, an upper-third grade level in math, and a third grade level in reading comprehension. Tr. 1130; Exs. D, F at ⁋ 18.
  10. REDACTED recommended that REDACTED receive 800 hours of tutoring provided at an average of ten hours per week for a period of approximately two years. She based her recommendation on her testing, review of evaluations, and her experience of working with students with learning disabilities and attention deficit disorder. Tr. 1128, 1149-1150, 1152, 1154, 1162-1163; Exs. D, F at ⁋ 22.
  11. Ms. REDACTED opined, inter alia, as to REDACTED REDACTED’s testing: (1) having REDACTED dictate spelling of words to REDACTED for REDACTED to write on the testing sheet does not assess REDACTED’s spelling in his written work; (2) having REDACTED write REDACTED’s math answers on the testing sheet does not assess how REDACTED is actually performing the math calculations; (3) having REDACTED read the particular selection of words reflected in the testing is an incomplete view of REDACTED’s decoding abilities; (4) REDACTED did not assess REDACTED’s reading comprehension; (5) the writing sample was handwritten, rather than produced on a computer, so it is not a valid representation of the written work that REDACTED is capable of producing when he is not burdened by the mechanics of handwriting given his “motor struggles;” and (6) the testing is incomplete and outdated. Tr. 1177-1188. I find Ms. REDACTED’s testimony credible and persuasive because it was based on her experience as an educator and constituted a careful and thoughtful opinion of REDACTED REDACTED’s work.
  12. REDACTED contended that REDACTED had been receiving tutoring from REDACTED and was benefitting from such tutoring because the REDACTED teachers were providing instruction and were building his self-esteem. Tr. 992-993. REDACTED has not received any tutoring from REDACTED; neither REDACTED REDACTED’s testimony nor the documents from REDACTED (Exs. D, F) reference REDACTED receiving tutoring from REDACTED.
  13. REDACTED stated that REDACTED needed tutoring at home because he struggled significantly at school. Tr. 986-987.
  14. With respect to REDACTED’s request for funding for tutoring for REDACTED, Ms. REDACTED opined that REDACTED needs to attend school in order to receive instruction and to access, during the school day, extra help and supports provided at school, before resorting to tutoring outside of school. Tr. 1169-1170.
  15. REDACTED has asked, as part of the relief in this proceeding, for REDACTED to remain at REDACTED, despite her concerns about the bullying that she has alleged occurred at the program. Tr. 997-998, 1047. She testified that she wanted REDACTED to return to REDACTED because it was a small program that provided a summer program and a modified and slower-paced curriculum and because “it’s difficult for [REDACTED] to switch schools.” Tr. 1002-1003; see also Tr. 1047-1048.
  16. REDACTED’s consistent insistence throughout REDACTED’s time at REDACTED and throughout these proceedings that REDACTED remain at REDACTED and her request that I return REDACTED to REDACTED calls into question the veracity of her assertions in her two letters (Ex. 24 at p. 5 and Ex. B) and during her testimony at the hearing that: (a) REDACTED experienced continuous and severe bullying at REDACTED from both students and staff members and (b) such bullying resulted in REDACTED’s fear of attending school and his excessive absenteeism. As a result, I find as entirely credible the District’s witnesses’ testimony concerning: (a) the investigation and addressing of the alleged incidents of bullying, (b) REDACTED’s positive attitudes when attending school and repeated denials that he was bullied at school or afraid to come to school, and (c) the lack of connection between any alleged bullying and REDACTED’s chronic and excessive absenteeism.

CONCLUSIONS OF LAW

The REDACTED purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education (“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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 N.Y.C.R.R. § 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. REDACTED School Dep’t of Educ., 725 F.3d 131, 143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. § 300.320 (a)(1); 8 N.Y.C.R.R. § 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. § 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. § 200.4(e)(1), (3).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). A claim that a CSE did not adequately consider information relating to a child’s special educational needs, including relevant input from the child’s parent, is considered an alleged procedural violation of the IDEA. If a procedural violation is alleged, as it is here, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007.

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

A. During the 2021-2022 school year, did REDACTED experience bullying at REDACTED, and if so, did REDACTED and the District disregard such bullying and did such bullying impact REDACTED’s access to a FAPE?

Students with disabilities have a “right to be secure” in school. T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 308 (E.D.N.Y. 2011), aff’d on other grounds, 810 F.3d 869 (2d Cir. 2016). In his first district court decision in T.K., Judge Weinstein developed a four-part test to determine whether bullying of a student resulted in a denial of FAPE: (1) was the student a victim of bullying; (2) did the school have notice of substantial bullying of the student; (3) was the school “deliberately indifferent” to the bullying; and (4) did the bullying “substantially restrict” the student’s “educational opportunities”? T.K., 779 F. Supp. 2d at 315-318, cited in, 810 F.3d at 874. The United States Department of Education has described bullying as repeated, unwanted and aggressive behaviors intended to cause physical, emotional and/or mental harm to a student. See What is Bullying, available at https://www.stopbullying.gov/bullying/what-is-bullying; see also New York Education Law §11(7); T.K., 779 F. Supp. 2d at 298-300.

REDACTED alleges in the DPC that, during the 2021-2022 school year, bullying was not properly addressed by REDACTED, that bullying impacted REDACTED’s learning, and that REDACTED “regressed” due to bullying.[14] IHO Ex. III. REDACTED reported alleged incidents to REDACTED personnel; according to REDACTED, these incidents involved REDACTED and other students. See ⁋⁋ 75, 76. Ms. REDACTED, the principal of the program, investigated each alleged incident, instituted remedial actions when necessary (specifically, instructing REDACTED and the other student as to safe navigation of the school’s hallways), and followed up with REDACTED to inform her of the information gathered during the investigations. See ⁋⁋ 76-77. Ms. REDACTED reasonably concluded that none of the incidents alleged by REDACTED constituted bullying. See ⁋ 77. It is also important to recognize that REDACTED did not report to REDACTED staff that he had been bullied or otherwise mistreated and, during Ms. REDACTED’s investigations, stated that he did not want to be separated from his friends. See ⁋ 76. From the credible testimony of Ms. REDACTED, I conclude that REDACTED was not bullied at REDACTED and that REDACTED was not “deliberately indifferent” to the possibility that REDACTED might have been bullied. Rather, REDACTED acted promptly with respect to investigating the incidents alleged by REDACTED and took remedial measures when appropriate.

The preponderance of the evidence also establishes that bullying did not “substantially restrict” REDACTED’s “educational opportunities.” First, contrary to REDACTED’s allegations, REDACTED did not regress during the 2021-2022 school year. In fact, he tried his best in class, worked hard and participated actively in his classes, made friends and got along with his classmates, made gradual progress on some of his IEP goals (including remaining on task, reading comprehension, math computation and pre-algebra equations), made progress on his counseling goals (improving communication skills and coping skills), made “significant progress” on a speech goal relating to using context clues to understand vocabulary, and some progress on goals relating to keyboarding. See ⁋⁋ 79-80, 83-86. REDACTED managed to learn despite his poor attendance. He would have made more gains if he had attended school regularly. See ⁋⁋ 79, 83, 85-86, 91-92, 98-99.

I must also consider REDACTED’s contention that REDACTED did not attend school because he feared bullying. REDACTED’s contention is belied by Ms. REDACTED’s credible testimony, which was corroborated by REDACTED’s teachers’ and related services providers’ written reports, of REDACTED’s positive attitude and participation in classroom learning when he attended school. ⁋⁋ 48, 79; see also ⁋⁋ 93-94 (REDACTED’s statements at IEP meeting that REDACTED liked REDACTED and that the program was supportive). There is no evidence that, during the 2021-2022 school year, REDACTED feared attending school. REDACTED’s contention is also contradicted by the absence of references to bullying in REDACTED’s extensive email correspondence and telephone calls with REDACTED about REDACTED’s absences, by REDACTED’s consistent and repeated contemporaneous statements that REDACTED’s absences were attributed to illnesses and injuries, and by REDACTED’s failure to indicate that REDACTED was absent or otherwise “school-phobic” as a result of the bullying incidents that she herself had alleged. See ⁋⁋ 64-65, 67-68, 70-71,78.

I should also note that REDACTED personnel took a number of steps to promote REDACTED’s attendance by communicating with REDACTED about REDACTED’s absenteeism and to address REDACTED’s concerns about the program and homework, by arranging for biweekly meetings with REDACTED to discuss her concerns, by providing counseling to REDACTED, by offering parent training and counseling to REDACTED, and by discussing at an IEP meeting REDACTED’s absenteeism and its impact on REDACTED’s learning. See, e.g., ⁋⁋ 53-58, 62-63, 65, 67, 69, 74-76, 91-92.

The clear, unequivocal, consistent, and credible testimony of the District’s witnesses, corroborated by contemporaneous written reports, demonstrates that REDACTED’s excessive absenteeism—which was not connected to bullying—was the source of REDACTED’s academic difficulties and failure to make expected progress during the school year. On this record, there can be no question that REDACTED’s absences were excessive and served to deprive him of consistent specialized instruction and specialized supports (particularly the first period of the school day, during which one-to-one and homework support was offered). See ⁋⁋ 48, 51-53, 72-73, 98.

In summary, the preponderance of the credible and reliable evidence adduced at the hearing demonstrates that REDACTED appropriately addressed bullying allegations and that REDACTED’s education was not impacted by bullying. Rather, REDACTED’s education was impacted by his excessive absences, which were not related to alleged bullying. As a result of REDACTED personnel prompt investigation of all allegations of bullying, the lack of connection between alleged bullying and REDACTED’s absenteeism and REDACTED making some progress (rather than regression) despite his excessive absenteeism, the District did not deny REDACTED a FAPE for the 2021-2022 school year.

B. During the 2022-2023 school year, did REDACTED experience bullying at REDACTED, and if so, did REDACTED and the District disregard such bullying and did such bullying impact REDACTED’s access to a FAPE?

REDACTED again alleges that, with respect to the 2022-2023 school year, bullying was not properly addressed by REDACTED, that bullying impacted REDACTED’s learning, and that REDACTED “regressed” due to bullying.[15] The preponderance of the credible and reliable evidence adduced at the hearing again demonstrates that REDACTED appropriately addressed bullying allegations and that REDACTED’s education was not impacted by bullying. Rather, REDACTED’s education continued to be impacted by excessive absences, which were not related to alleged bullying. See ⁋⁋ 108-145, 151-153.

During the 2022-2023 school year, REDACTED continued to report alleged incidents to REDACTED personnel. See ⁋ 134; see also ⁋⁋ 135-136. Mr. REDACTED, the assistant principal, investigated each alleged incident, instituted remedial actions when necessary, and followed up with REDACTED to inform her of the information gathered during the investigations. See ⁋⁋ 134, 163. Mr. REDACTED reasonably concluded that none of incidents alleged by REDACTED constituted bullying of REDACTED and were “unfounded.” See ⁋⁋ 134, 163. When REDACTED raised bullying at the October 2022 IEP meeting, Mr. REDACTED engaged REDACTED in a discussion and explained that the incident REDACTED referenced had been investigated. See ⁋ 110. When REDACTED raised bullying at the June 2023 IEP meeting, REDACTED personnel engaged REDACTED in a discussion about how they had addressed the incidents. See ⁋⁋ 160, 163. Furthermore, REDACTED acknowledged that REDACTED did not report bullying to REDACTED staff, with the exceptions of allegedly informing an unidentified “lunch lady” about being hit by REDACTED and allegedly informing the school psychologist that he was bullied. See ⁋⁋ 135-136. I give these two references to REDACTED’s alleged reports little weight in light of the credible and extensive testimony, corroborated by the documents in evidence, of Mr. REDACTED’s investigations, the fact that the first time that REDACTED raised the alleged report to the school psychologist was on cross-examination, and the credible testimony of Mr. REDACTED that REDACTED denied that he was not bullied and was not afraid to come to school. See ⁋ 134.

From the credible testimony of Mr. REDACTED, as corroborated by (for example) the contemporaneous written DASA reports, I conclude that REDACTED was not “deliberately indifferent” to the possibility that REDACTED might have been bullied. Rather, REDACTED acted promptly with respect to investigating the incidents alleged by REDACTED, took remedial measures when appropriate, and communicated with REDACTED about the investigations and the results of the investigations. See ⁋⁋ 134, 110, 160-163.

Furthermore, the preponderance of the evidence also establishes that bullying did not “substantially restrict” REDACTED’s “educational opportunities.” Contrary to REDACTED’s allegations, REDACTED did not regress during the 2022-2023 school year. REDACTED was “an engaged learner” when he attended school, participated in his classes, made some progress in reading comprehension, worked on the Global History 2 and the math curricula, made progress in speech therapy (improved his attention to academic materials, answered more complex questions, asked for help, and increased his receptive and expressive language skills). See ⁋⁋ 120, 137, 140, 151.

The level of REDACTED’s school performance during the 2022-2023 school year must be considered in light of his deplorable attendance record. REDACTED’s excessive absenteeism continued throughout the school year. See ⁋⁋ 125-126. The educators and administrators who knew REDACTED were uniform in their written reports and testimony that when REDACTED attended school, he was able to learn. See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252 (2d Cir. 2012) (importance of evidence from individuals who knew and worked with student); S.B. v. New York City Dep’t of Educ., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (S.D.N.Y. Jun. 25, 2015) (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student). The record is clear that REDACTED managed to learn despite his poor attendance. He would have made more gains if he had attended school regularly. See ⁋⁋ 119-120, 126, 138-139, 141, 152.

I must again consider REDACTED’s contention that REDACTED did not attend school because he feared bullying. REDACTED’s contention is belied by Mr. REDACTED’s credible testimony, which was corroborated by REDACTED’s teachers’ and related services providers’ written reports and contributions at IEP meetings, of REDACTED’s positive attitude and participation in classroom learning when he attended school. ⁋⁋ 120, 137, 151. When REDACTED stated at the June 2023 IEP meeting that REDACTED was absent because he was bullied, REDACTED personnel again explained to REDACTED that each of the bullying allegations were, after investigations, determined to be unfounded, that Mr. REDACTED followed up with her after each investigation, and that plans were instituted to keep REDACTED and other students safe. See ⁋⁋ 160-163; see also ⁋ 134.

There is no credible evidence that, during the 2022-2023 school year, REDACTED feared attending school. While REDACTED’s letter included in the March 2023 DASA documentation (Ex. 24 at 5) states that REDACTED had “missed many days” of school due to bullying, REDACTED informed Mr. REDACTED that he was not afraid to come to school and was not sure why his mother had written this letter. See ⁋ 134(m). REDACTED’s contention that REDACTED’s absenteeism was caused by bullying is also contradicted by the absence of references to bullying in REDACTED’s extensive and contemporaneous email correspondence with REDACTED about REDACTED’s absences, and by REDACTED’s consistent and repeated contemporaneous statements that REDACTED’s absences were attributed to illnesses and injuries. See ⁋⁋ 132, 153.

I note that REDACTED personnel, during the 2022-2023 school year, continued to address and attempt to remediate REDACTED’s absenteeism (and to promote attendance): by communicating with REDACTED via telephone, text and email, by making a home visit, by continuing to discuss REDACTED’s absenteeism with REDACTED at IEP meetings, by adding individual counseling for REDACTED to assist in REDACTED’s transition back to school after summer break and to provide REDACTED with an opportunity to discuss his anxieties and concerns in a private one-to-one setting, by developing a study skills goal specifically targeting REDACTED arriving for class on time and a post-secondary goal targeting regular school attendance in order to graduate with a Regents diploma, by offering parent training and counseling to REDACTED, and by discussing at IEP meetings REDACTED’s absenteeism and its impact on REDACTED’s learning. See ⁋⁋ 108, 111-113, 127-132, 152.

The clear, unequivocal, consistent, and credible testimony of the District’s witnesses (corroborated by contemporaneous written reports) demonstrates that REDACTED’s excessive absenteeism—which was not connected to bullying—was the source of REDACTED’s academic difficulties and failure to make expected progress during the school year. On this record, there can be no question that REDACTED’s absences were excessive and served to deprive him of consistent specialized instruction and specialized supports (particularly the first period of the school day, during which one-to-one and homework support was offered). See ⁋⁋125-126.

In summary, the preponderance of the credible and reliable evidence adduced at the hearing demonstrates that REDACTED appropriately addressed bullying allegations and that REDACTED’s education was not impacted by bullying. Rather, REDACTED’s education was impacted by his excessive absences, which were not related to alleged bullying. As a result of REDACTED personnel prompt investigation of all allegations of bullying, the lack of connection between alleged bullying and REDACTED’s absenteeism and REDACTED making some progress (rather than regression) despite his excessive absenteeism, the District did not deny REDACTED a FAPE for the 2022-2023 school year. See ⁋⁋ 115, 119-120, 134.

C. Is REDACTED entitled to compensatory education with respect to the 2021-2022 and 2022-2023 school years?

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each student. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE to that student. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (“[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]”); Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (in determining an appropriate compensatory education remedy, “the inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place”). An award of compensatory education should aim to place the student in the position he or she would have been in had the district met its IDEA obligations. Newington, 546 F.3d at 123 (compensatory education awards should be designed so as to “appropriately address[] the problems with the IEP”); Reid, 401 F.3d at 518 (compensatory education is a “replacement of educational services the child should have received in the first place” and “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA”).

As to REDACTED’s claims for compensatory education for the 2021-2022 and 2022-2023, since the District did not deny REDACTED a FAPE for either of these years based upon the violations alleged by REDACTED in her DPC, there is no basis for an award of compensatory education. See, e.g., Reid, 401 F.3d at 518. Furthermore, there is no entitlement to compensatory services for absenteeism. See French v. New York State Dep’t of Educ., 476 F. App’x 468 (2d Cir. 2011) (compensatory education denied where parent “repeatedly demonstrated an unwillingness” to permit the student to attend school pursuant to any IEP in place”); Office of State Review Appeal No. 21-186 at p. 30 (“compensatory education is a remedy available to make up for a district’s denial of a FAPE . . . not a remedy to make up for a parent’s actions that have served to impede the district’s delivery of instruction and services to the student”). I found above that REDACTED’s failure to make expected progress was a result of his absenteeism, not a result of a denial of FAPE by the District. Since REDACTED can (and does) learn when he attends school consistently, the preponderance of the evidence does not support his entitlement to compensatory education.

Since the District did not deny REDACTED a FAPE for the 2021-2022 and 2022-2023 school years, there is no basis for an award of compensatory education. However, given the particular circumstances of this case, I should address both equitable considerations and the evidence presented by REDACTED to support her claim for tutoring as compensatory education. As to equitable considerations, REDACTED impeded the District’s provision of a FAPE to REDACTED in multiple ways during the 2021-2022 and 2022-2023 school years. For example, she did not participate in the biweekly meetings and in parent training and counseling which would have assisted her in supporting REDACTED’s school attendance and homework completion, she did not get REDACTED to school on time, so he missed the first period of the day which provided one-to-one support and homework help, she failed to send REDACTED to school consistently, and she did not cooperate with REDACTED personnel in their attempts to improve REDACTED’s attendance. See, e.g., ⁋⁋ 48-58, 62-67, 69-74, 114, 125-129, 131.

As to REDACTED REDACTED’s testimony and written documentation in which REDACTED recommends that REDACTED receive 800 hours of tutoring, I find her testimony unreliable and her recommendation without support. As the District correctly argues (IHO Ex. XIV at 22-23), REDACTED performed only the most minimal testing of REDACTED, and the accuracy and reliability of that testing as the basis for understanding REDACTED’s levels of educational skills are questionable. See ⁋⁋ 204-210. As Ms. REDACTED credibly opined, and as the record supports, REDACTED needs to attend school and receive specialized instruction and access to needed related services and supports. As a result, for all the reasons stated above, REDACTED is not entitled to an award of compensatory education for the 2021-2022 and 2022-2023 school year.

D. Did the District offer REDACTED a FAPE for the 2023-2024 school year?

As stated above, an IEP developed by a school district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 137 S. Ct. at 999; see also Rowley, 458 U.S. at 207; T.M. v. Cornwall, 752 F.3d at 151, 160; R.E, 694 F.3d at 189-90. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The DPC includes the following challenges to the June 2023 IEP.

1. Did the IEP provide appropriate teaching interventions for REDACTED despite not including, as sought by REDACTED, a 1:1 math specialist, a 1:1 teaching assistant, multisensory instruction and homework support on REDACTED’s IEP?

The June 2023 IEP included extensive and detailed teaching interventions and an extensive array of supports for REDACTED. It is clear from the testimony of the District’s witnesses that the IEP was formulated with consideration of the most recent REDACTED reports and testing as well as prior evaluations. See ⁋⁋ 148-150. The District’s witnesses clearly and credibly explained how the special educational programming, services and supports recommended in the IEP addressed REDACTED’s needs. See ⁋⁋ 168-179, 182, 188. As the District properly argues, the IEP targeted REDACTED’s independence and access to a Regents-based curriculum “for the purpose of obtaining a Regents diploma thereby enabling him to achieve success in post-secondary activities while at the same time supporting his individualized needs in light of his circumstances.” IHO Ex. XIII at p. 12. Ms. REDACTED knowledgably and credibly testified in detail about the development of the June 2023 IEP over the course of the two IEP meetings. See ⁋⁋ 146-179.

The small class program with significant teaching intervention and adult support, related services, and extensive supplementary aids and services, modifications and accommodations remained aligned with REDACTED REDACTED’s recommendations (see ⁋⁋ 15-16, 168-179) and were “reasonably calculated” to address REDACTED’s unique learning needs and circumstances. See Endrew F., 137 S. Ct. at 999 (IEP developed by district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”).

The CSE specifically considered a 1:1 math specialist, a 1:1 teaching assistant, multisensory instruction and homework support for REDACTED The CSE rejected both the 1:1 math specialist and the 1:1 teaching specialist as unnecessary for REDACTED because he would receive the necessary specialized instruction from the teacher in the 12:1:4 special class and, furthermore, there was significant adult support in such a class to provide him with the IEP’s classroom accommodations and address his IEP goals. See ⁋⁋ 174-176. I note that these recommendations were made with the input of REDACTED personnel who knew REDACTED See M.H., 685 F.3d at 252 (importance of evidence from individuals who knew and worked with student); S.B., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D., 550 F. Supp. 2d at 435 (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student). The Endrew F. standard also requires a hearing officer to examine the child’s progress in the school district’s program and determine if the child is making progress that is meaningful for the child, taking into consideration the child’s unique circumstances, needs, strengths, and challenges, in order to consider whether an IEP program, moving forward, is “reasonably calculated” to promote meaningful progress for the child. See R.E., 694 F.3d at 189-90. Here, as the witnesses credibly explained (and as corroborated by the documentary evidence), REDACTED missed many, many days of school. He was capable of learning, and did learn in the school setting, without a 1:1 teaching assistant and 1:1 math specialist, therefore such 1:1 instruction was not necessary for him and such 1:1 instruction would have been unduly restrictive for him. Since REDACTED had been learning in a 12:1:4 program for the past two school years when he attended school, the “reasonably calculated” decision was for REDACTED to continue with such a program.

As to REDACTED’s challenge to the IEP based upon alleged lack of multisensory instruction and homework support, the IEP includes both multisensory instruction (for example, through visual supports) and supports for homework (through study skills goals, reading goals, and modifications and accommodations such as breaking down long-term assignments, additional time to complete assignments, and a modified curriculum) . See ⁋⁋ 167, 172, 173).

2. Were related services of speech-language therapy, occupational therapy, and counseling offered by the District appropriate for REDACTED?

The June 2023 IEP included speech-language therapy and counseling for REDACTED in accord with the reports and recommendations of the therapists working with REDACTED. Since REDACTED had made progress with two periods per week of speech therapy, the appropriate conclusion was that he should continue with two periods per week of speech therapy. Similarly, the continuation of the counseling mandate was also appropriate to REDACTED’s needs. See ⁋⁋ 169, 171. As to occupational therapy, the CSE recommended that this service be provided to REDACTED as a consult, in line with the recommendations of REDACTED’s occupational therapist and REDACTED’s needs as a REDACTED grade student for support for typing rather than a pull-out session of occupational therapy. See ⁋ 170. As a result, the record does not support REDACTED’s contention that related services mandates should have been increased.

3. Were the IEP goals appropriate for REDACTED?

A student’s IEP must include “measurable annual goals, including academic and functional goals, consistent with the student’s needs and abilities.” 8 N.Y.C.R.R. § 200.4(d)(2)(iii)(a). The June 2023 IEP includes goals relating to REDACTED’s identified special educational needs. See ⁋⁋ 149-150, 152, 166-167. The goals were developed with the participation of REDACTED and educators and administrators who knew REDACTED See ⁋⁋ 147-148. The goals were individually reviewed at the June 2023 meeting and were aligned with REDACTED’s educational needs and present levels of performance. See ⁋⁋ 149, 166, 167. At the June 20 meeting, REDACTED stated that she understood and agreed with the goals. See ⁋ 166.

The goals, as developed and written, also take into consideration that REDACTED, due to his excessive absences, needed to continue with goals that reflected his skills deficits, that recognized that he needed to move forward with his education to prepare for life after high school, and that sought to address his absenteeism and support school attendance. The June 2023 IEP annual goals and post-secondary goals strive towards these important ends and are thus appropriate for him.

4. Was the IEP inappropriate because it did not include a bullying protection plan for REDACTED?

REDACTED challenges the June 2023 IEP because it does not include a bullying protection plan for REDACTED. The preponderance of the evidence in the record demonstrates that REDACTED does not need a bullying protection plan as a component of his IEP. All of the alleged incidents of bullying were determined, after investigations, to be “unfounded.” See, e.g., ⁋⁋ 76, 134. Furthermore, bullying did not impact REDACTED’s learning—his consistent and excessive absenteeism (despite the consistent efforts of REDACTED personnel to address that absenteeism) impacted his learning.

In summary, in Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services . . . with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. In REDACTED’s case, this means an IEP that addresses his special educational needs. The District’s witnesses explained how the District’s offered programming and services for REDACTED were “reasonably calculated” to permit him to make progress meaningful for him given his unique circumstances; and, thereby, by a preponderance of the evidence, the record demonstrates that the District’s IEP offered REDACTED a FAPE.

5. Did REDACTED have the opportunity to participate meaningfully in the May and June 2023 IEP meetings?

REDACTED alleges that she was not provided with the opportunity to participate meaningfully in the IEP meetings to develop REDACTED’s IEP for the 2023-2024 school year because each goal was not reviewed at the meeting and because the meetings were “rushed.” IHO Ex. III. A student’s educational plan must be created with the participation of the student’s parents. SeeSchaffer v. Weast, 546 U.S. 49, 53 (2005); Winkelman v. Parma City School District, 550 U.S. 516, 524 (2007); R.L. v. REDACTED-Dade Cnty. Sch. Dist., 757 F.3d 1173, 1188 (11th Cir. 2014) (impermissible predetermination occurs when school district “makes educational decisions too early in the planning process, in a way that deprives the parents of a meaningful opportunity to fully participate as equal members of the IEP team”); see also 20 U.S.C. §§ 1414(d)(1)(B), 1414(d)(3)(A)(ii), 1414(d)(4)(A), 1414(e). Such “[p]redetermination is inconsistent with the goals of the IDEA, which envision a collaborative process in developing a uniquely suitable educational placement for each child.” E.H. v. New York City Dep’t of Educ., 2016 U.S. Dist. LEXIS 18537 at *22 (S.N.Y. Feb. 16, 2016).

REDACTED’s argument fails because the record clearly demonstrates that REDACTED participated in the May and June 2023 IEP meetings, providing her input and expressing her concerns. See ⁋⁋ 153, 155-157, 160-162, 164, 180, 186. Ms. REDACTED reviewed each of the goals with REDACTED at the meetings and answered her questions about the goals. See ⁋⁋ 165-167. REDACTED agreed with the goals. See ⁋ 166. Furthermore, the meetings lasted a total of about four hours. See ⁋⁋ 156, 165. These were not “rushed” meetings. Rather, the record demonstrates that these were deliberative meetings with input from and discussions among the participants, including REDACTED See ⁋⁋ 146-186 above.

Furthermore, unlike in T.K., REDACTED personnel at the June 2023 meeting engaged with REDACTED when she raised her prior allegations of bullying (which she had not raised at the May 2023 meeting). REDACTED personnel reviewed with REDACTED how they had addressed the allegations, followed the DASA process, and determined that the allegations were “unfounded.” See ⁋⁋ 160-164. Compare T.K., 810 F.3d at 876 (school district denied student a FAPE when its personnel refused to discuss with parents at IEP meeting the substantial bullying experienced by their child).

The evidence demonstrates that the District’s CSEs conducted IEP meetings for REDACTED at which REDACTED had the opportunity to participate in and contribute to the process of making decisions about REDACTED’s education. Furthermore, REDACTED was not deprived of educational benefits nor was her right to a FAPE impeded because the CSE considered and discussed, at the CSE meetings, her allegations of and concerns about bullying. See 20 U.S.C. §1415(f)(3)(E)(ii). The CSE did disagree with REDACTED assertions about bullying, but such disagreement does not demonstrate that the material was ignored or otherwise inadequately considered in the IEP development process. Therefore, the CSE did not deny REDACTED a FAPE in its development of the June 2023 IEP.

E. Is REDACTED entitled to relief with respect to the 2023-2024 school year?

REDACTED asserts specific claims for relief with respect to the 2023-2024. For the sake of completeness, even though I have found that the District offered REDACTED a FAPE for the 2023-2024 school year, I will briefly address each claim for relief. As to requested increases in related services (speech and occupational therapies and counseling), as explained above, the record supports the appropriateness of the IEP’s related services mandates. As to the request for a bullying protection plan, there is no evidence to support the need for such a plan. The allegations of bullying were unfounded. As to the request for a plan to improve REDACTED’s written work, math, comprehension skills, and test-taking skills: there already is such a plan—the June 2023 IEP. I have determined that this IEP—with its extensive specialized instruction, supports, interventions, accommodations, and modifications—is appropriate for REDACTED. Similarly, I find that a 1:1 teaching assistant would be inappropriate for REDACTED in light of the program set forth in the IEP and would foster dependence, rather than independence, for REDACTED The record also demonstrates that REDACTED does not need a plan to assess and address regression after school breaks. What REDACTED needs is to attend school regularly and on time.

Finally, REDACTED requests that I return REDACTED to REDACTED. REDACTED was informed when REDACTED entered REDACTED that he would not be able to remain in that program past REDACTED grade were he to continue with a Regents-based curriculum. See ⁋⁋ 34, 37. REDACTED was adamant that REDACTED continue with a Regents-based curriculum. See ⁋ 46. Ms. REDACTED reminded REDACTED of this situation many times during REDACTED’s enrollment in the program, and REDACTED maintained her insistence that REDACTED obtain a Regents diploma. See ⁋ 145. As a result, the District recommended a program search to locate a placement for REDACTED for September 2023.

F. Did REDACTED disagree with a District evaluation such that she “triggered” the entitlement to an IEE at public expense?

The Second Circuit has made clear that a parent’s right to an IEE at public expense “is triggered” when a parent disagrees with a school district’s evaluation. D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 158, 163 (2d Cir. 2020) (“Trumbull”) (parent must express disagreement with a school district’s evaluation as a prerequisite to obtaining an IEE at public expense); see also, e.g., Application of a Student with a Disability, Appeal No. 21-091 at p. 52. While school district personnel may ask a parent why he or she disagrees with the district’s evaluation, a parent is not required to provide such an explanation to the district. 8 N.Y.C.R.R. § 200.5(g)(1)(iii); see also 34 C.F.R. § 300.502(b)(4). Federal courts have granted leeway to parents in expressing disagreement. See Trumbull, 975 F.3d at 165 (“Nothing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”).

Here, REDACTED has not expressed any disagreement with the District’s or REDACTED evaluations of REDACTED. See Application of a Student with a Disability, Office of State Review Appeal No. 21-288 (parent must express disagreement with a district evaluation to “trigger” the district’s obligation to fund an IEE). As a result, REDACTED has not “triggered” her right to an IEE at public expense, and the request for an IEE is denied.

I have considered the remaining contentions of the parties, find them to be either without merit or abandoned by the parties due to lack of evidentiary support, and dismiss them.

ORDER

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

  1. The District did not deny REDACTED a FAPE during the 2021-2022 and 2022-2023 school years.
  2. The District did not deny REDACTED a FAPE with respect to the 2023-2024 school year in the development or substance of the June 20, 2023 IEP.
  3. All claims for compensatory education are denied.
  4. All other claims for relief are denied.

SO ORDERED.

DATED: January 13, 2024

Jean Marie Brescia, Esq.

Impartial Hearing Officer

NOTICE OF

RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education District 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 District 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.

DOCUMENTATION ENTERED INTO THE RECORD

SCHOOL DISTRICT EXHIBITS

Exhibit Number

Exhibit Date

Exhibit Name

Number of Pages

1

4/29/2022

Individualized Education Program (IEP)

20

2

6/23/2021

Individualized Education Program (IEP)

17

3

10/6/2021

Individualized Education Program (IEP)

18

4

5/24/2021

Individualized Education Program (IEP)

18

5

10/13/2022

Individualized Education Program (IEP)

20

6

5/18/2023

Individualized Education Program (IEP)

20

7

2/15/2021

Independent Neuropsychological Evaluation

34

8

3/6/2022

Post-Secondary Planning Assessment

6

9

3/18/2022

Educational Reevaluation

6

10

4/11/2022

Educational Annual Review

5

11

4/13/2022

Counseling Summary for Annual Review

4

12

4/13/2022

Speech & Language Annual Review

3

13

3/24/2022

Occupational Therapy Progress Summary for Annual Review

3

14

3/30/2023

Educational Reevaluation Annual Review

6

15

4/14/2023

Occupational Therapy Progress Summary for Annual Review

3

16

4/17/2023

Annual Review by REDACTED

2

17

4/17/2023

Speech & Language Annual Review

4

18

10/14/2022-6/23/2023

Progress Report School Year 2022-2023

8

19

7/7/2021-6/9/2023

Daily Attendance History

1

20

7/1/2021-6/30/2022

2021-2022 Attendance Record

1

21

9/6/2022-7/13/2023

Student Cumulative Attendance Summary

5

22

1/18/2023

REDACTED Suspected DASA Incident Reporting Form

4

23

1/18/2023

DASA Results of Investigation

2

24

3/28/2023

REDACTED Suspected DASA Incident Reporting Form and DASA Complaint from Parent

6

25

3/28/2023

DASA Results of Investigation

2

26

4/8/2021

Correspondence between the District and the Parent regarding REDACTED

2

27

3/8/2022

Correspondence from Parent Seeking Sleepaway School

1

28

9/7/2021-6/9/2022

Correspondence between REDACTED and the Parent regarding the student's attendance

24

29

9/6/2022-6/5/2023

Correspondence between REDACTED and the Parent regarding the student's attendance

42

30

5/9/2023-5/11/2023

Correspondence between the District and the Parent regarding the 5/18/2023 IEP Meeting

4

31

5/12/2023-5/13/2023

Correspondence between the Parent and District regarding an in-person IEP Meeting for 5/18/2023

2

32

5/23/2023

Parent's Acceptance of the Meeting Invitation to continue the 5/18/2023 IEP Meeting on 6/20/2023

3

33

6/6/2023

Email from Parent regarding an in-person IEP Meeting for 6/20/2023

1

34

6/26/2023

Email from Parent regarding Speech and Other Concerns

3

35

8/9/2023

Correspondence from Parent to District Regarding Program Search

2

36

8/11/2023

Correspondence from District to Parent for Program Search - Release of Information

2

37

8/11/2023-8/14/2023

Correspondence between the District and the Parent regarding a Program Search

2

38

8/31/2023

Correspondence between the District and the Parent regarding a Tour of the High School

1

39

8/31/2023-9/6/2023

Correspondence between the District and the Parent regarding a Tour of the High School

1

40

9/8/2023

Correspondence between the District and the Parent regarding REDACTED’s absences for the first two days of school for the 23/24 school year

1

41

4/13/2023

Transcript 2021-2022 and 2022-2023 school years

1

42

9/26/2023

REDACTED Acceptance

1

44

2/15/2021- 5/18/2023

Program Search Referral Packet - 2023-2024 School year

73

45

8/16/2023-9/22/2023

Program Search Rejection Letters

3

46

9/26/2023

Correspondence between the District and the Parent

2

47

10/10/2023

Correspondence between the District and the REDACTED

2

PARENT’S EXHIBITS

A 2014 NYSED, Guidance Document: Lesson Plan Template 32 pages

B 1/4/2023 Letter from Parent to Principal, REDACTED 1 page

C 9/15/2022 Letter from Student 1 page

D 9/25/2023 Letter from REDACTED 2 pages

E undated REDACTED’s testing materials 5 pages

F 10/13/2023 Affidavit of REDACTED 3 pages

IHO EXHIBITS

I various DPC 4 pages

II 6/26/2023 Amended DPC 8 pages

III 8/3/2023 Second Amended DPC 4 pages

IV 6/26/2023 Summary of Prehearing Conference 2 pages

V 6/15/2023 Introductory Letter to Parties 3 pages

VI 8/2/2023 District’s Pendency Letter 2 page

VII 8/13/2023 Order on Pendency 8 pages

VIII 8/13/23 Scheduling and Extension Order 2 pages

IX 10/2/23 Outline of Allegations and Claims in Second Amended DPC 2 pages

X 9/7/2023 Summary of Prehearing Conference 2 pages

XI 11/3/2023 Extension Order 3 pages

XII 12/15/2023 Extension Order 2 pages

XIII 12/21/2023 District Closing Memorandum of Law[16] 31 pages

XIV 12/29/2023- Email Communications with Parent re: Records 3 pages

1/4/2024

XV 1/9/2024 Email Notice of Record Close Date 1 page

XVI 1/12/2024 Email from Parent re: REDACTED Report 1 page

XVII 1/12/2024 Email from District re: Objections to REDACTED Report 2 pages

XVIII 8/7/2019 Confidential Psychological Evaluation 16 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; District exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labeled as “IHO” and are designated with Roman numerals.

[2] The initial set of transcripts for the proceedings held on July 14, August 9 and August 11 were not paginated properly (as in the pages were not numbered consecutively). The court reporter renumbered the pages and forwarded the corrected transcripts on August 24. I direct the District to ensure that only the corrected, properly paginated transcripts are included in the record. I encourage any reviewer of the record to check that the correctly paginated transcripts are reviewed.

[3] The parties were provided with the outline of claims (IHO Ex. IX) prior to the outset of the hearing in order to assist them in preparing and presenting their cases.

[4] REDACTED explained that a bullying protection plan was a written plan formulated with the participation of a social worker for a student “to be monitored and watched during the day closely [by] a teacher’s assistant,” who would report weekly to the student’s parent. Tr. 1073.

[5] The District offered, as proposed Exhibit 43, a copy of Application of the Board of Education of the Harrison Central School District, Office of State Review, Appeal No. 21-186. This SRO Appeal relates to a prior proceeding with respect to REDACTED I precluded the document from evidence because is it not evidentiary material; rather, as noted and agreed-upon on the record, I (and the parties) must be cognizant that matters relating to school years prior to the 2021-2022 school year were previously adjudicated and were not to be relitigated in this proceeding. However, the parties could introduce background material in order for me to understand REDACTED as a learner and in order to describe the evaluative material and other information available to, and considered by, the CSE in developing REDACTED’s IEP for the 2021-2022 school year. See Tr.191-192, 282-287.

[6] It is important to note that REDACTED was not attending school in person at the time of the evaluation, that his participation in remote learning was minimal, and that the reports relate to time periods prior to 2021 when REDACTED not enrolled at REDACTED. Tr. 1040. Furthermore, any factual matters or claims relating to allegations of bullying or of possible alleged denials of FAPE referenced by REDACTED in the course of Dr. REDACTED’s evaluation are (a) outside the IDEA’s statute of limitations period (20 U.S.C. §§ 1415(b)(6)(B), 1415(f)(3)(C)); (b) should have been adjudicated in Appeal No. 21-186 (see n. 5 above); and (c) are not considered in this Decision. Dr. REDACTED’s evaluation is discussed herein because it presents evaluative material about REDACTED’s educational needs in the period shortly proceeding the time periods relevant to this case and because the CSE considered Dr. REDACTED’s evaluation in developing REDACTED’s IEPs. See Exs. 1-6.

[7] Such information about the REDACTED program does not constitute “impermissible retrospective testimony” as per R.E. v. New York City Department of Education, 694 F.3d 167, 189-90 (2d Cir. 2012), because this information is in the record as a description by school personnel of REDACTED’s class setting and is recounted here as background to understanding the context of REDACTED’s bullying allegations and the challenges made by REDACTED to the IEP for the 2023-2024 school year; furthermore, REDACTED does not challenge the IEPs for the 2021-2022 school year.

[8] Reduced related services were recommended for the summer program: speech and occupational therapy (each for one 30-minute individual session per week) and no counseling. Ex. 1 at 1, 17.

[9] Some of the doctors’ notes are illegible. The District represented that they submitted in evidence the best copies that it could make of the documents as they received them from REDACTED

[10] Pages 5 and 6 of Exhibit 24 are a letter from REDACTED In the letter, REDACTED writes as REDACTED, but the letter is from REDACTED, written by REDACTED, and signed by REDACTED (see page 6) REDACTED did not deny that she wrote this letter. The same observations apply to a letter that REDACTED addressed to Mr. REDACTED dated January 4, 2023. Ex. B.

[11] There was some testimony regarding the school bus and the possibility of the bus driver speeding and the bus driver stopping at Dunkin Donuts. There were multiple layers of hearsay involved in this testimony, and I therefore disregard this testimony as demonstrating a lack of reliable foundation.

[12] I give little credence to this particular opinion of the REDACTED school psychologist. It has no weight in the rendering of this decision and does not provide insight into how bullying occurs. It is the type of reasoning that promotes bullying in the school setting by blaming the victim rather than addressing what might be going on among students in the school setting. See T.K. v. New York City Dep’t of Educ., 779 F. Supp. 2d 289, 301-306 (E.D.N.Y. 2011).

[13] REDACTED did not pass the Global History Regents administered in June 2023. Tr. 437, 568.

[14] It is important to note that the DPC does not include challenges to the appropriateness of the IEPs in place for REDACTED for the 2021-2022 school year or the implementation of those IEPs at REDACTED. See IHO Ex. III.

[15] Again, it is important to note that the DPC does not include challenges to the appropriateness of the IEPs in place for REDACTED for the 2022-2023 school year or the implementation of those IEPs at REDACTED. See IHO Ex. III.

[16] District’s counsel read this document into the record on December 22 as the District’s closing statement. REDACTED elected to have portions of the closing statement translated for her.