NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education
NYS ID. No.
. and . on behalf of their child, Findings of Fact and Decision
-against-
The Central School District
Procedural Context
By letter dated March 24, 2015 I was appointed to hear the Matter of . pursuant to the IDEA, 20 US Code Section 1415 (f)(l). Thereafter, a pre-hearing conference was held on April 21, 2015 for the purpose of narrowing the issues and developing a litigation schedule. On June 15, 2015, hearing on the substantive merits commenced. Additional hearings were subsequently held on September 17, 2015; October 26, 2015; October 27, 2015; October 29, 2015; November 4, 2015 and January 8, 2016. At this time, the proceedings were closed and the decision date duly extended so that a Findings of Fact could be prepared. It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. Specifically, the Parents assert that the School District’s educational placement, as memorialized by the IEP of June 2, 2014 stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exh. 1. As a result thereof, they are seeking tuition reimbursement for the 2014-2015 school year in furtherance of a unilateral transfer to the School (hereinafter ), a non-public school setting. As a corollary, the Parents have defended the educational program implemented by and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. At the commencement of the 2014-2015 school year, the student was years old. I note that is “a child with a disability” as that term is defined under the IDEIA, 20 U.S.C. § 1400 et seq., and is classified as “ ” as that term is defined by 20 U.S.C. § 1401(a)(1). SD Exh. 11 (bn 87-100). 1 There is no dispute regarding classification. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. Although , the child’s math teacher at , testified to the best of ability, the witness seemed unusually forgetful, and disorganized, especially on the second day of testimony. Consequently, testimony was given minimal weight. Finally, a list of persons in attendance and of evidence is appended hereto. The School District’s Case testified as lead witness on behalf of the Department. . is one of ’s Supervisors for Special Education, a position has held for the last 13 years. As such, responsibilities include monitoring the delivery of services for children with IESPs, processing special education referrals to the CSE, chairing Committee meetings and conducting professional assessments of District personnel. witness testified that she was familiar with in this administrative capacity. Tr. at 55-58. Among other credentials, the witness testified that she holds a permanent New York State teaching certificate in special education and has previously taught within District.
I note that the School District’s evidence includes Bates stamping in an effort to facilitate the identification of its extensive exhibits. As a result, I am additionally referencing these page numbers. Ms. ’s initial involvement with . occurred as Chairperson of the May 5, 2011 and September 27, 2011 CSE meetings. On May 5, 2011, an IEP was developed in anticipation of the child’s transition from pre-school to school-age services in District. Exhs. 3, 4 (bn 9-19; 20-30). Thereafter, an IESP was developed on September 27, 2011, when it became clear that the child would remain at School, (alternatively referred to as,
) a non-public school mainstream placement. On June 1, 2012 the CSE again convened for the purpose of developing an educational plan for ’s 2012-2013 grade school year. Exhs. 5 (bn 31-41). Following the District’s receipt of an independent psychological evaluation conducted by , Ph.D., a second IESP was developed on March 13, 2013. Exhs. 6; E (bn 42-53). As a result of a new diagnosis of , the child’s classification was changed from ” to “ .” Exh. 6 (bn 43). During the 2013-2014 school year, . attended the District’s . In preparation for this year, the CSE convened on June 19, 2013. Exh. 7. At this time, it was determined that . would benefit from a second year in grade. Ms. noted that the Parents acknowledged ’s inability to address their ’s special education needs and participated collaboratively in the development of .’s IEP, without expressing any objections. Tr. at 69. As a result of these proceedings, an integrated co-teaching class was recommended along with the related services of therapy and . Exh. 7 (bn 54-67). Thereafter, the IEP was amended on October 18, 2013 to include authorization for a therapy evaluation. In the interim, the IEP was again amended on November 4, 2014 to include testing accommodations and instructional modifications. Exh. 10 (bn 86). On December 18, 2013, the CSE re-convened and, following its review of the therapy evaluation, generated a recommendation for individualized services. Exhs. 8-9 (bn 68, 70). Per the December 18, 2014 IEP, services were scheduled to commence as of January 6, 2014, two and one half months after the referral was initiated. Finally, on April 4, 2014, the CSE authorized both and evaluations which were thereafter conducted on April 14, 2014. Exhs. 10, 40. It appears, however, that this report was not addressed by the CSE until June 2, 2014 when the CSE reconvened for the purpose of developing an educational program for the 2014-2015 school year. Exh. 11. Ms. denominated the list of CSE participants at the June 2, 2014 convene. This included the child’s special and general education teachers; school psychologist, ; and therapist, ; therapist ; therapist
; , social worker and both Parents. Tr. at 80. She indicated that the child’s teachers described “tremendous” gains at this time, particularly in the areas of reading comprehension and fluency. Beyond this, positive progress had been evident in the child’s social-emotional skills. Finally, Ms. testified that .’s fine and gross motor skills were improving. Nevertheless, she acknowledged that . continued to exhibit inconsistent progress in math, an area of weakness for the child. In concurrence, the CSE recommended an extended school year, based upon prior evidence of substantial regression over the summer. Tr. at 92. Based upon the child’s academic development, the CSE continued to recommend an integrated class along with related services of , and therapy. She noted, moreover, that the Committee’s participants did not indicate a need for a functional behavior assessment or behavior intervention plan. Tr. at 82. In sum, Ms. opined that the IEP of June 2, 2014 was appropriate, a conclusion she based upon the child’s rate of progress and the restrictiveness of educational setting. Following the June 2, 2014 meeting, Ms. noted that the Parents expressed an interest in arranging transportation services to during the upcoming year so that they would not miss the District’s “cut-off” date. Tr. at 90-92. Although she was aware of the .’s active interest in this school, Ms. did not testify as to whether .’s parents had made a final decision. In fact, the witness indicated that the Parents had expressed no objections to the child’s IEP during the CSE’s deliberations nor did they request any follow-up convenes. On June 2, 2014, the District forwarded its Prior Written Notice of Proposed Continuation for Special Education. Exh. 121 (bn 298). In response, the Parents forwarded a letter on August 4, 2014 notifying the District that they would be unilaterally placing their child in . Exh. 124 (bn 308). Thereafter, offered, by letter dated August 11, 2014, to schedule another CSE meeting to review ’s educational programming. The Parents did not respond to this last communication. Exh. 125 (bn 309). On cross-examination, described the manner in which integrated or collaborative co-teaching services (hereinafter referred to as “CTT”) are designated on the District’s IEP. Thus, an entry which states, “1 x Weekly, 8 hr 45 min.” reflects the fact that a total of eight hours and forty five minutes will be offered to the child on a weekly basis. Exhs. 7-10; 11 (bn 54-100). During the upcoming 2014-2015 school year, .’s CTT services would be increased to ten hours per week, to wit: “1 x weekly, 10 hr.” Exh. 11 at 1. By mandating service hours in this format, the witness indicated that scheduling issues could be addressed more flexibly. Ms. noted that the Parents understood the nature of these provisions and were informed that these entries did not mean . would only receive services once a week in a large block of time. Tr. at 101-108. The witness described the CTT class as one in which 18-22 children are assigned. Eight to twelve of these students hold IEPs. Tr. at 109. Although the general education teacher is always present, the special educator may be assigned to more than one class. Tr. at 104. Having so testified, noted that during the 2014-2015 school year, the special educator would have a full-time assignment to the CTT class. Tr. at 101. The witness noted that, when requested, the Parents attended all CSE meetings and agreed with the District’s IEP amendments. Similarly, the Parents willingly shared their independent and evaluations with District personnel. Tr. at 110. Nevertheless, Ms. did not know why the child’s report had not been addressed during the CSE proceedings. Tr. at 119. In developing the child’s IEP, Ms. noted that the District offered self-contained classes for students with emotional disturbances, autism, intellectual or physical impairments. There are no self-contained classes for cognitively intact children with learning disabilities. Tr. at 115. Other than a discussion regarding supplemental management needs, instructional modifications and related services, no other placement options 2 were offered nor did the Parents request any. Tr. at 121-124; Exh. 11 at 12 (bn 100).
i.e. specifically full-time self-contained classes for learning disabled or dyslexic children or non-public school placement additionally testified on behalf of the School District. is certified by New York State to teach Special Education, nursery and grades one through six. is currently employed by the School District as the special educator in a CTT class. During the 2013-2014 school year, worked with in an integrated first grade class, an assignment the two have shared for the past 15 years. During the 2013-2014 school year, explained the service provisions outlined in ’s then current IEP. indicated that the “1 x Weekly, 8 hr 45 min.” recommendation meant that, at a minimum, would be present physically in the classroom to assist . On some occasions, she might be present for more than eight hours and 45 minutes, depending upon the kindergarten schedule, a classroom to which had additionally been assigned. Tr. at 141. Of the approximately 21 children in the grade CTT class, five other children in the class possessed IEPs mandating an array of services. Given the CTT environment, could not specify how services would be specifically allotted to the child, as the varying CTT mandates of other children in the classroom along with the general education schedule would have an impact on their delivery. Tr. at 141-142.
described a typical day during the 2013-2014 school day. Beyond acclimating the children to classroom protocol and basic grade skills, reading and writing workshops were incorporated into the school day. As part of a classroom management system for the Reader’s Workshop protocol, children were offered a structured opportunity to work independently, known as “the Daily Five.” During this time, children could choose from various structured activities, freeing up teaching personnel to work with smaller group or individuals. Tr. at 144. As a rule, the children were grouped for instruction based upon classroom assessments. This included their knowledge of high frequency words, sound symbol assessments, fluency and guided reading abilities. Nevertheless, she noted that the reading groups, especially the guided reading groups stressing comprehension, were composed fluidly and did not always include the same children. Tr. at 147-149. At the inception of grade, the witness testified that children are expected to function at reading level “C” per Fountas and Pinell. Other than being able to hold a book appropriately, however, noted that . could not identify rhyming words, blend and segment sounds or identify 25 high frequency words, basic entry level skills for grade. Tr. at 150. While .’s writing skills were somewhat stronger, demonstrated little ability to match letters to sounds. Similarly, in math, the witness indicated that C.K. entered grade with deficits in numeral recognition and understanding numeric one to one correspondence. Quantitative comparisons remained problematic. Tr. at 152. The child did, however, make a smooth adjustment to attending classes in a larger public school setting, a transition facilitated by the Parents’ site visits with their over the summer.
additionally described the math teaching protocol for students in grade CTT classroom. She noted that both and were present during these times, alternanating roles as lead and assistant teacher. Math was taught on a Daily Five basis and both and .
were responsible for all of the children. Describing the supports offered during math instruction, referenced a technique known as “gradual release,” a process in which large group instruction was followed by teacher modeling of a specific problem with assistance from the students. The children were then given a problem to solve independently. During this last phase, the children worked in smaller groups and their efforts were supervised more intensely by the second classroom teacher. On some occasions, a second lesson in which materials were re-taught would be offered if there were enough children unable to move onto the next step. On other occasions, instruction groups were individualized to include manipulatives or writing exercises of numerals. Tr. at 154-156. As the year progressed, it was clear that . was struggling and, ultimately, testified that the child frequently required math instruction as part of a small group of three to five students. This was particularly evident when faced with arithmetic word problems. Tr. at 158. Nevertheless, even with small group instruction, manipulatives and Touch Math, the child continued to struggle. Tr. at 160.
additionally described efforts to support .’s deficits in reading. These included the use of a “balanced literacy” program which incorporated shared and guided reading exercises as well as independent reading opportunities. Listening skills were additionally facilitated in this manner as well as through various computer programs. noted that phonics instruction and “word work” reflected the District’s adoption of the “Words Their Way” program which supplemented through own use of a multi-sensory program in which letter tiles and games were utilized. Although occasionally worked on sight words, an additional teaching assistant addressed this with small groups of children outside the classroom. Tr. at 163. Finally, noted that assistive technology in the form of educational computer games and a classroom i-pad were often used by . as part of his Daily Five five. Tr. at 165. Describing the child’s management needs, the witness noted that ’s IEP included environmental modifications such as preferential proximity, trial of an FM unit, back jack chair and/or wedge cushion, pencil grip and a visual schedule. As . required longer processing time to interpret multiple step directions, the IEP additionally included a provision that directions be broken down and individual assistance offered as needed. Tr. at 53-56; Exh. 11 at 2 (bn 88). During the 2013-2014 school year, additionally served as .’s reading teacher. As such, the witness opined that the child had made meaningful improvement, having entered kindergarten at level B and finishing the year at level E or F. Tr. at 215. noted that this represented more than one year’s progress. Tr. at 166. In writing, described the use of Lucy Calkins methodology as an adjunct to the School District’s core curriculum syllabus. The witness described the, “tremendous progress” made by ., noting that the child was an enthusiastic writer whose penmanship and spacing improved as the year went on. Tr. at 170. Although initially testified that, “We were conscious of the fact was anxious and we would prepare when there was going to be a change or something like the first time we had a fire drill . . .” later noted that . did not evidence any unusual anxieties, nor could recall any specific moments in class when . demonstrated any “anxious moments.” Tr. at 153, 170-171. In support of this, referenced various communications between self and the Parents indicating that . was transitioning well to School. Tr. at 172- 175; Exhs. 69, 70 (bn 221- 222). Nevertheless, consistent with reports referenced in the dated October 18, 2013 IEP, it was additionally clear to that was struggling to maintain focus in class. Exh. 8 (bn 69). At this time, the witness additionally learned that the child was decompensating emotionally at home following inability to complete math assignments. Tr. at 176; Exh. 71 (bn 223). By November 2013, it was evident that . possessed a limited ability to retain math facts over a three day week-end and required additional support at home. noted that , “put a lot of pressure on self” and found the math sprints “stressful.” Tr. at 185-187; Exhs. 82, 83 (bn 239-240). In response, the witness began to revise the student’s math homework, asking the Parents to limit assignments to 10-15 minutes per day. Exh. 87 (bn 245). As the year progressed, was additionally apprised of .’s “melt downs” at home in response to various incidents at school. Tr. at 189-191; Exhs. 92, 93 (bn 253-255). In contrast, the witness testified that did not observe any of this in school. Exh. 115 (bn 287-288). Rather, the witness testified that . arrived at school smiling and interacted with peers appropriately. Tr. at 298-301, 304.
As personnel became more familiar with the child, .’s IEP was modified. Amendments to the IEP included therapy services, approval for an evaluation and additional testing modifications as a means of reducing the child’s test anxiety. Tr. at 182. Following a trial in which . was assessed for an FM unit, it was determined that this intervention offered no meaningful benefit to the child. In March 2014 scheduled a routine meeting with the Parents to discuss .’s progress. While .’s reading had developed positively, he continued to require prompts in order to produce legible writing samples. Tr. at 194. More significantly, the child demonstrated poor recall of math rules as well as over-generalization of rules once a concept had been acquired. Tr. at 194-195. continued, moreover, to exhibit limited number sense, demonstrating an inability to choose between two or eight cookies. Exh. 96 at 3 (bn 261). The Parent shared the fact that disliked school and needed help sequencing activities of daily living. Ibid. In response, both home and school implemented a program to encourage greater responsibility and independence. Referencing the 2013-2014 progress grid in reading, testified that . had met criteria for sight words in both and beginning grade and could identify at least 50 words. Exh. 132, 132A (bn 334). By the end of the school year, . was able to sight read 80 out of 100 high frequency words mandated for the end of and could even identify 84 words on the grade list. Tr. at 210-211. Similarly, the child demonstrated clear progress in the area of phonemic awareness. Finally, noted that, by the end of grade, . could identify most sound symbols, progress reflected on the District’s ELA examinations. Similarly, the child’s math skills had dramatically improved. Tr. at 223-225; Exh. 132 A.
testified that additionally participated in the child’s CSE review for grade on June 2, 2014. Exh. 11 (bn 87-100). At this time, she presented a general assessment of .’s educational and social growth. noted that the child had progressed by one year in reading and was making steading progress in writing by writing a sentence phonetically. Having said this, noted that the child’s handwriting remained illegible at times, even by the end of the school year. Tr. at 308, 322-323, 367. In reading, noted that . was now able to read blended consonants and digraphs so that could actually read four letter words. Tr. at 321. While math continued to be an area in which struggled, reported that the child was now able to identify numerals up to thirty and enact story problems with manipulatives. Tr. at 309-310. Through the use of seating modifications, pre-teaching, re-teaching, guided practice and an additional 30 minute review at the end of the day, she opined that . had progressed satisfactorily during his grade year at . Tr. at 313-315. Having so testified, noted that while . was able to identify various numerals up to 120, exhibited a limited sense of one to one correspondence. Tr. at 324-327. Finally, referencing the child’s end of year progress report, the witness acknowledged that the goals should be viewed as “introductory” rather than literal. Tr. at 328-330. Based upon knowledge of ., the witness opined that, in the upcoming 2014-2015 school year, the child would require more special education support than he was currently receiving. Similarly, noted that the child remained prompt-dependent in terms of on-task performance although the prompts had become less intrusive. As the child’s distractibility remained an issue, the report card indicated that still struggled with working independently in certain subject areas. Tr. at 381-38Exh. 131 (bn 332). Consequently, study skills goals were specifically incorporated into the June 2, 2014 IEP. Tr. at 319-320. testified that although . was doing work, did so, “with walk-bys, reminders, moderate assistance to keep working. And he also was sometimes showing up unprepared with the tools that he needed.” Tr. at 333. The witness reiterated view that .’s anxiety was not a significant issue within the classroom and that once a classroom routine was established, the child felt comfortable. Tr. at 331. She did not observe any need for a behavior plan. Tr. at 337. Nevertheless, while testified that did not observe indices of stress within the classroom, there are references within the June 2, 2014 IEP to strategies designed to reduce the child’s anxiety. Similarly, the witness did not object to the incorporation of goals. Exh. 11 at 3 (bn 91). In sum, opined that the June 2, 2014 IEP was appropriate for .
On cross-examination, the witness acknowledged that although had received training in the Orton Gillingham methodology, did not hold certification. Moreover, during the 2013-2014 school year, duties were divided between two different classrooms. As such, her presence in ’s classroom was limited to ELA and math. As a result, she was not present for all of the ELA period and testified, “English language arts is listening, speaking, there’s read aloud stories. Don’t need to have two teachers in the room for read-aloud, the listening, speaking part. I often was not there for the introduction of the writing lesson for the day, but I was there for the later part of writing when the children were actually doing their writing.” Tr. at 343. Finally, although generally not present during social studies and science, “may have” been there for some lessons, but could not recall exactly how much time actually spent in .’s classroom. Tr. at 344-346.
As a general protocol, described a math class in which the lead teacher would initially demonstrate a concept, followed by guided practice and, ultimately, independent work. During the period in which students were asked to work independently, remained in the classroom of 18-22 children, assisting “anyone who needed it.” Tr. at 351. . did not receive initial math instruction in a small group, but received it as part of the entire class. As the math presentation continued and various children indicated a need for more intense instruction, small group instruction would be offered, a setting in which . benefitted inconsistently on a near Daily Five basis. Although the need for small group instruction was not articulated specifically within the IEP, testified that this was inherently part of the integrated co-teaching model. Tr.at 354-355. As a result, did not feel the need to specifically recommend small group instruction in math. Although the Touch Math program had been effective with . in terms of developing addition skills, noted that was unable to use this strategy with the child on a Daily Five basis as teaching assistant was already engaging with the child to develop sight words. Had a computer been available, believed the Touch Math program would have been effective. While additionally opined that . needed math instruction twice a day, she was unable to offer this intervention on a daily basis. Tr. at 380-381. Ultimately, ’s progress was extremely inconsistent leading to opine on March 3, 2014, that “ . has forgotten how to add.” Exh. C at 2.
On re-direct, the witness clarified the manner in which small group math instruction took place. In furtherance thereof, observed that the small group paradigm was not limited to those children within the class who were classified. Rather, anyone in the class who appeared to be struggling with the material was brought into the group. Tr. at 385. As such, the witness’ presentation would include “differentiated instruction,” depending upon various sub-sets of abilities present within the small group paradigm. Tr. at 38. Referencing math sprints and journaling, the witness indicated that there were classroom posters and cues which would facilitate the child’s independent performance. This included visuals of number doubles in addition (during math sprints) and word walls (although journal writing was otherwise totally self-monitored). Tr. at 397-399.
In sum, testified that . had demonstrated considerable progress in math, a fact memorialized by the kindergarten District-wide assessment scores and the child’s pre and post-test scores. Specifically she noted that had progressed from the th to the rd percentile. Tr. at 387-389; Exh. 132 A.
additionally testified on behalf of the District. was the general education teacher assigned to the integrated first grade class in which . was a student during the 2013-2014 school year. has held this position for fifteen years and has worked consistently with for 15 years. Tr. at 407-408. The witness testified that both and share teaching responsibilities, both providing whole class and small group instruction. Although is primarily responsible for those children in the class with IEPs, she will also assist non-classified students who are experiencing academic difficulties. She noted that there were approximately 20 students in class.
Although . appeared a bit shy at the beginning of the school year, the witness testified that did not appear particularly anxious and was generally “smiley.” Tr. at 414. Academically, noted that was clearly below grade level in all areas.
Describing the general routine for class, the witness elaborated upon the Daily Five management system. noted that this system offers independent work assignments to some children in the class, while freeing up the two classroom teachers to work with others for a period of approximately 20 minutes. Tr. at 415, 461-463. In general, the Daily Five strategy was repeated two to three times Daily Five. The independent activities were selected by the children themselves and might have included reading to themselves or others, listening to stories or engaging in leveled computer materials or books on tape. Tr. at 416. testified that . generally participated appropriately during these sessions, but did note that the classroom software (Starfall.com, Bookflix and Super Phonics) were general education programs. On re-direct, however, testified that she was uncertain as to whether there was any difference between special and general education software as this was not area of expertise. Tr. at 486- 487, 489.
Beyond the Daily Five management system, indicated that reading instruction might be offered in the form of whole group, small group or individualized presentations, depending upon
.’s needs. Within the small group paradigm, personnel would facilitate guided reading and pre-teaching strategies in order to support Tr. at 420. At the beginning of the school year, the child was a non-reader who could recognize a few sight words with the assistance of pictures. Likewise, in writing, noted that .’s writing was illegible although could identify most letters and sounds. Finally, in math, observed that . had no understanding of numeric 1:1 correspondence at the inception of the year, although was able to do limited rote counting. Tr. at 422-424.
As the 2013-2014 school year progressed, several programs were utilized, including the Lucy Calkins Unit of Study protocol, Go Math, Touch Math and Handwriting without Tears. Daily activities included morning meetings, math sprints (warm-up activities aimed at directing math fluency), journal writing and writer’s workshops. Although . was offered a trial with the FM unit, testified that this did not help as, ultimately, even with the unit, classroom personnel needed to direct their remarks specifically to the child, using name. Tr. at 437. Given the ineffectiveness of the FM unit, . was instead given preferential seating. Beyond academics, social skills were addressed within the context of cooperative groups, games and viewing classmates as one’s “school family.” Tr.at 428-429. described . initially as a shy child who made “tremendous gains,” during the year, eventually developing friendships with classmates and appearing quite happy in class. Specifically referencing the Parent’s reports of melt-downs, testified that these behaviors did not appear in school. Tr. at 451-452; Exhs. 93, 116 (bn 255, 289).
Describing the child’s academic growth during the 2013-2014 school year, opined that had made significant progress in reading, advancing nearly one year. Tr. at 438-440, 446; Exh. 132-A. In writing, observed that, “ went from often writing squiggles that did not look like letters to writing things that I could read without helping me. And that was huge . . .” Tr. at 441, 447; Exh 132-A. While acknowledging that math remained an area of difficulty for , testified that . had made “tremendous” gains and was able to solve many problems on the District’s end of year assessment. Tr. at 442, 448; Exh.132-A.
On June 2, 2014 participated in a CSE convene for the purpose of developing .’s IEP for the upcoming year. At this time, an integrated grade CTT was recommended for the child reflecting an additional two hours per week of special education support. opined that, along with various related services built into the child’s IEP, the IEP of June 2, 2014 was appropriate for . did not believe that a grade class was indicated for the child as was “not yet doing grade work. So we had no reason to think that was ready for grade.” Tr. at 455-456. Likewise, opined that . did not require a behavior intervention plan as the child did not demonstrate any behaviors which interfered with ability to access an education. Tr. at 478-479.
On cross-examination, acknowledged that was not present during science instruction and was only present for portions of social studies. However, if . required assistance, there was other personnel in the room who could assist him. This might include self or a teaching assistant occasionally assigned to the classroom.
The Parents’ Case
is the Headmaster of the School. holds degrees in English language and literature as well as a law degree from Case Western Reserve University. While he has never practiced law, has taught learning disabled children for eight years. He noted that offers a small, nurturing environment for dyslexic, cognitively intact children. Its programming is based upon the tenets of the Orton-Gillingham, multi-sensory methodology. Tr. at 526-529. Each student receives one period of 1:1 Orton-Gillingham based tutoring per day in addition to the support of a small group study hall. Assistive technology is utilized Daily Five and each student is assigned to his/her own i-pad which may include various academic applications (hereinafter referred to as "apps") as well as programs for text to speech or speech to text support. The witness described as a New York State registered non-public school which serves grades two through twelve. During the 2014-2015 school year, had an enrollment of 80 children of whom only 10 were in grades two through five. 3 Although enrollment began at seven children, as the year progressed, there were ten. These ten students were grouped together for most of the school day although noted that as enrollment numbers increased, the group was split up for math to reflect disparate instructional levels. Tr. at 544-546.
The younger students are known as the . The witness referenced studies by Gordon Sherman in which dyslexics have shown strengths within the wider population on sub-tests of visual and 3D perception. As a result, personnel often utilize visual imagery as a means of developing academic skills while avoiding text-based materials. This includes the use of i-pad and SMART board technology which might facilitate both pictorial and motor-based approaches to math instruction. Tr. at 550-553. For this reason, the School emphasizes cursive writing as a means of utilizing motor memory and patterning to reinforce word sequences and reading. Tr. at 563-564. Beyond this, noted that teachers frequently use technology to develop executive function skills. Personnel at receive intense Orton-Gillingham training offered through the School's Teacher Training Institute. This includes two weeks of formal Orton-Gillingham training with 70 hours of classroom work in addition to ongoing supervision by Fellows of the Training Institute. Tr. at 557. Following this initial training, staff is required to work on the next level of accreditation offered by the Orton-Gillingham Institute. Although the witness' duties are primarily administrative and “strategic,” does participate in the admissions process and has a casual familiarity with s students. He did, however, recall that early in the 2014-2015 school year, was advised by .'s teachers that the child was struggling and would benefit from more intensive math instruction. As a result, . began receiving individualized support in math, a setting which ultimately became a small class as the school’s enrollment increased. Tr. at 581-582. The witness noted that students are tested twice a year with standardized measures such as the Woodcock Achievement and Gray Oral Reading Tests. Four report cards are sent home yearly. The witness additionally described the report card format, noting that students are assessed on character traits associated with productive learning. Tr. at 586-593. The report card omits the use of grade assignments as, ". . . So if we were assigning grades A through F, there still wouldn't be a comparison, it would just be is getting whatever grade is getting, whatever level. And so to the school and to me there isn't much of a difference between saying is getting an A in this, is getting a B in this, is getting a C in this, or saying that 's exemplary which you could say is the equivalent of an A in a given skill, or is proficient and you know which you could argue is equivalent to a C. It's saying how is this one student doing." Tr. at 590; Exh. K. Having so testified, the witness indicated that frequent communications between parents and school personnel, formal parent-teacher conferences and comments in the report cards would place the parents on notice as to a child's actual academic status. Tr. at 612-613. Although does not emphasize formal testing and the use of letter grades, noted that the children are assessed Daily Five by the classroom teacher. Tr. at 679. In this manner, each teacher has a great deal of discretion in determining the extent to which a student was progressing towards mastery of a skill. Tr. at 680-681. On cross-examination, the witness acknowledged that holds no degrees in education nor does possess any teaching or administrative certifications. He does not hold any certification in Orton- Gillingham. Tr. at 614-617. Referencing the curriculum utilized by the group, noted that, with the exception of math and English language skills, all students received the same instruction. Tr. at 630-631. Although the age ranges in the class extended from eight to “ten or eleven,” the witness opined that this was preferable to offering classes with only two or three children. In furtherance thereof, the Headmaster observed that, although . was largely functioning academically at a level, his emotional and social maturity warranted placement in the to grade group. Nevertheless, this was largely a moot decision as there was only one group available to at the school during the 2014-2015 school year. Tr. at 655-657.
The witness had a limited recall of the student's application to , but did note that the one application filed by the Parents for admission during the 2013-2014 school year, did not include current input from School District personnel. Ultimately, a second application was not obtained by when admission was deferred to the 2014-2015 school year and the child's admission packet did not include the opinions of most recent teachers. It did, however, include an updated IEP, report card and evaluations submitted by the Parent on March 19, 2014. Tr. at 640-642; Exhs. 9, 137 (bn 70-84, 407). acknowledged that had not acquired any documentation directly from the School District nor was any independent testing conducted by the School. In fact, he mistakenly believed had been retained by the School District. Tr. at 642-643; Exhs. 9, 137 (bn 70- 84, 407). Rather, the School based its admissions determination upon the presence of , cognitive level and emotional status of . in determining his candidacy for . Finally, the witness believed . was, in fact, receiving , but could not be certain of this. Similarly, to the best of his knowledge, he did not believe the child was receiving or therapy. Tr. at 684-685.
additionally testified on behalf of the Parents as the Academic Dean of .
holds both Master’s and Doctoral degrees in education and has extensive experience in the field of education, both in terms of direct instruction as well as in the professional education of teachers themselves. is certified in elementary and middle school science education and holds various administrative credentials as well. has extensive experience in the areas of classroom assessments, classroom management and behavior management and was a member of the Grade 5 Science Assessment Development Committee for the state of Massachusetts. Tr. at 1080-1081, 1087. The witness described as a constructivist school, aimed at facilitating hands-on learning in which students are active participants in their own education rather than passive recipients of information. In this manner, the use of textbooks is subordinated to physical engagement in the learning process. Tr. at 1106. A 1:1 i-pad and lap top program enriched by educational apps and websites is additionally offered to students. This includes the Keynote software, programming which is analogous to power point and Microsoft Word. In this manner, children may work collaboratively on whole class assignments. Tr. at 1112-1113. The witness noted that students are encouraged to rely upon computer-based materials as this minimizes the disorganization associated with loose papers and homework assignments. Tr. at 1120. Finally, described the report card format, noting that feedback additionally occurs in the form of teacher emails, phone calls, classroom observations, weekly homework files sent to the parents, newsletters and parent/teacher conferences. Tr. at 1119-1120.
The witness noted that by the end of the 2014-2015 school year ’s enrollment reflected 85 students, grades 2 through 12. Of these students, there were 8 children initially assigned to grades 2 through 5. By the close of the school year, this number had grown to 12. While these students were initially grouped together for all subjects except math and reading, the class was ultimately sub-divided as new children joined the group. Tr. at 1190-1193. Moreover, although all of these children were classified, class assignment was performed “without regard to what their actual functioning levels were in those academic areas.” Tr. at 1198. Although a wide range of grade levels had been assigned to the initial class, explained that instruction was organized by concept rather than instructional level. In this manner, instruction and assessment could be individually leveled to meet the needs of the child. Tr. at 1218-1220. In literature, age appropriate materials were read aloud, facilitating instruction for students with limited reading skills. Tr. at 1234-1235.
Having so testified, the witness acknowledged that, other than standardized scores yielded at the beginning and end of the school year, did not use traditional tests and quizzes to assess student progress. Tr. at 1236-1237. Referencing ’s report card format and its use of personality descriptors, testified, “. . . With the exception of knowledgeable in math, I am not aware of the basis of the teacher’s assessments of an individual child.” Tr. at 1239. repeated this sentiment with read to the remaining quarterly reports as well. Tr. at 1256, 1261; Exh. L at 2. Among responsibilities at , serves as a curricular and instructional consultant for grades two through twelve. This includes mentoring new teachers, facilitating the use of technology within the school, assisting the logistics team with Daily Five operations, developing educator evaluation systems and supporting the school’s efforts to become credentialed by the American International Baccalaureate program. Most relevantly, duties include meeting with teachers as part of the student’s academic team, proctoring study halls and tutoring students who require additional help. Tr. at 1095-1096.
Describing ’s staff, noted that - with one exception- all of its staff hold Bachelors’ or Masters’ degrees. Many are certified educators although this is not a school requirement. The youngest children, grades two through five are called “ .” Although there are presently two classrooms, during the 2014-2015 school year the class remained together with the exception of writing, Spanish and music. As the year progressed, students broke off into a separate group for math as well. The witness noted that, notwithstanding the presence of several ages and grade levels within the class, materials were differentiated following their initial presentation. In this manner, reading, research and follow up activities could be leveled appropriately. Tr. at 1107-1108. Finally, noted that although the school already utilized a program known as Everyday Math, it had recently purchased the Numicon software, a program particularly valuable for disabled students who required a concrete, hands on approach.
While the witness has known and informally observed . since September 2014, has not taught him, administered testing or conducted any formal assessments of the child. Tr. at 1203- 1205. has, however, maintained an informal relationship with the child as ’s small size lends itself to this. The witness described . as an active learner who was engaged and focused upon the materials presented.
additionally testified regarding academic assessments for the 2014-2015 school year. Exh. J. Addressing the Stanford Diagnostic Math test, described .’s initial scores as math levels which fell at the “ of what the test measured.” Tr. at 1125.
noted that . possessed limited number sense in terms of 1:1 correspondence, struggled with addition of two-digit numbers, sequencing and translating word problems into math. Tr. at 1241. Even within a small class of eight or nine , the child was unable to benefit from classroom instruction. Ultimately, it was the consensus of school personnel that required math instruction in the form of a 1:1 math tutor, a service believed commenced during the second quarter of the school year. Tr. at 1124, 1157.
As the year proceeded, . was joined by three other children, forming a separate, but small math class. The math tutor, , utilized a range of modalities, Numicon, 4, and various computer apps. Although .’s progress was slow, testified that, over-all, the child had advanced by approximately six to eight months in terms of grade level expectations. Tr. at 1127- 1128. More significantly she observed that, per the child’s report card, . was “flourishing” as was now excited and eager to learn math. Exh. 137 (bn 434).
a math curriculum published by Oxford University Press In reading, standardized measures on the GMRT-4 indicated that the child’s progress was somewhat inconsistent. Although comprehension scores declined significantly, the child’s decoding skills and word knowledge had improved by roughly one year. Similarly, while scores on the Gray Oral Reading Test indicated progress in accuracy and fluency, noted that it was difficult the quantify the exact amount of ’s progress as the test did not reflect how far below the percentile .’s initial scores were. Tr. at 1132-1133. However, standardized measures on the Woodcock-Johnson III-ACH, a timed measure, clearly reflected several months of achievement in the areas of fluency and word attack. Tr. at 1134; Exh. J. Finally, Dr. observed that writing continued to be a challenge for . who experienced “enormous” difficulty retaining information from one day to another. Tr. at 1174. In sum, based upon a review of the child’s percentiles and/or grade equivalence, Dr. opined that . had made academic progress during the school year. Tr. at 1203.
Reviewing ’ report, the witness observed that there was a great deal of sub-test scatter, consistent with the ’s diagnoses of reading, spelling, math and disorders superimposed upon disorder. Exh. E at 15. Based upon knowledge of the child, described the June 2, 2014 IEP as “sub-optimal” as it could not replicate the benefits of a small class. More importantly, opined that the two hours of integrated co-teaching services were inadequate to meet the student’s needs. Having observed . at , noted that the child required constant re-direction, positive reinforcement and academic/reading support. Beyond this, described a highly child who struggled with and a sense of . As a result, opined that . required a structured and calm environment in which materials could easily be differentiated. Tr. at 1172- 1173.
additionally testified on behalf of the Parents. is licensed to teach special education in the state of Colorado. During the 2014-2015 school year, was employed by and served as .’s math tutor, commencing at about the beginning at the end of the first quarter through the end of the school year. Tr. at 1327-1330. As such, saw the child on a Daily Five basis and described a pleasant but anxious child who worked exceedingly slowly. Tr. at 988, 1368-1370. Having so testified, recollection of events was inconsistent although recalled tutoring . individually and later transitioning with into a separate classroom with three other delayed children. Profiling the additional students, noted that they shared some communalities in terms of their approach to math, but were very different in terms of their skill levels. Tr. at 1347.
At the outset, testified that . possessed minimal math skills, struggling just to recognize math symbols over time. The witness observed that the child had difficulty retaining concepts, possessed no number sense and could not identify the number of dots on one die. As the year progressed, the notions of greater and less than were introduced and s, “. . . sense of numbers definitely increased, the value that numbers represented. also learned doubles facts, single-digit doubles facts which we used in our number talks, and for both addition and subtraction . . . Those were the main areas improved.” Tr. at 982- 983. By the end of grade, with the support of a great deal of structure, practice and reinforcement, noted that . had developed the ability to add single digit numbers. However, when later queried about .’s end of year progress, wavered in terms of the child’s consistency in demonstrating this skill. Tr. at 1376. Beyond this, . remained erratic in terms of using alternative strategies for addition versus simple counting. Tr. at 1367-1368. Ultimately, based upon experiences with ., the witness opined that, even with the supports of an integrated class and the individualized modifications and accommodations articulated in IEP, . would be unable to make reasonable math progress. Tr. at 987.
is ’s mother. The witness provided a brief description of .’s educational history including his strengths and weaknesses. . has a long history of special education intervention, commencing in Early Intervention at the Early Childhood Education Center and later at the , a special education nursery. In kindergarten, . articulated into the as the Parents believed required a full day program, a placement necessitated by the District’s limited kindergarten programming. During this time, . continued to receive the special education supports of SEIT and therapy through an IESP. The Parent testified that son experienced a successful year at and, as a result, the Parents opted to place him there for grade.
The child’s grade year at , however, proved to be a disappointment for the Parents. . was unable to cope with the School’s focus on independent learning and self-direction. The classroom was distracting for the child and . was overwhelmed by the dynamics of the environment. The Parent noted that . would “just sit there staring at [the work], even after the teacher had just set him up. Tr. at 741. As the year unfolded, noted that . was avoiding academic work and had evidenced very little educational progress. Tr. at 736-741. In January 2013, the Parents obtained a evaluation of . from , Ph.D. Exh. E. At this time, the child was diagnosed with , a , a Learning Disorder in as well as Learning Disorders in . Exh. O. On February 25, 2013, wrote to the CSE, requesting a convene for the purpose of discussing the new diagnostic information. Aware that . was struggling at , the Parents were optimistic about developing a program at , the District’s elementary school. Specifically, the Parent noted that had served on the District’s School Board, older children had attended the District’s schools and daughter, a special educator herself, was familiar with one of .’s proposed teachers. On March 13, 2013 the CSE met for the purpose of discussing ’ report. testified that school personnel were very dismissive of the report and indicated that, “it would not be worthwhile to transfer . [to the public school] at that point in March. Tr. at 764-765; Exh E. As a result, the child remained at through the end of the school year although e believed was floundering. Ibid.
Frustrated by their ’s lack of educational progress and based upon the recommendation of Dr.
, indicated that they submitted an application to on March 6, 2013. Exh. 137 (bn 402). They based this decision upon the school’s specialized programming for dyslexic students. Tr. at 768. The . family additionally obtained a evaluation from , M.D. and shared this with District personnel. Exh. F. Specifically, noted that the child exhibited significant levels of anxiety and opined that .’s distractedness might be, in part, a reflection of this. In support of their application to , . indicated that her private evaluations and teacher reports were included. Tr. at 880-882. She could not explain why an acceptance letter was sent to her , a week before his enrollment application was submitted. Tr. at 884-885. See Exh. P, but see Exh. 137 (bn 393-402).
On June 19, 2013, the CSE convened for the purpose of developing an educational plan which would support .’s articulation into the District’s school. Exh. 7 (bn 54- 67). As a result of the CSE’s discussions, . was placed in an integrated co-teaching class (1 x weekly, 8 hr. 45 min.”) with additional (“10 x yearly, 30 min.”) and therapy support (“1 x weekly, 30 min”). Exh. 7 at 1. was advised that the class would not have more than six children with IEPs and, based upon this representation, she believed the eight hours referenced in the child’s IEP would largely reflect individualized attention. Tr. at 784-785.
Having been so apprised, the Parent expressed concern about .’s ability to manage within the integrated co-teaching environment given the child’s sensitivities to noise and distractions. In response, testified that she was assured the collaborative class would offer many opportunities for small group instruction. The Parent further inquired at this time about the availability of a self-contained class for . but was advised that these classes were limited to children with low functioning cognitive levels. Tr. at 790-791. Ultimately, although . had already been accepted at for the 2013-2014 school year, testified that . was enrolled in where repeated grade.
Although the school year started well, noted that . began to struggle as the demands of grade escalated, particularly in math. She testified that . came home from school, “crying, angry, upset, overwhelmed, stressed, feeling helpless, feeling confused, not sure what the homework was, not sure what the teacher told him versus what the homework was. Very unclear, very upset, very angry.” Tr. at 795-796. Ultimately, felt that . appeared to retain very little instruction during the day. The witness observed that the GO Math text book utilized a great deal of language in its presentation of materials while the pages were visually distracting. As . struggled with a language-based math curriculum and , attempted to isolate each problem in order to simplify the homework. Tr. at 798-802. Nevertheless, alarmed about this deteriorating situation, the Parent contacted school personnel. Exh.71 (bn 223-224). In response, testing accommodations were implemented in November. Exh. 9 at 2 (bn 71). . was additionally referred for a therapy evaluation and an FM unit was trialed in January 2014.
As the year continued, acknowledged that although the school, “kept changing their interventions, changing different approaches, trying different things,” nevertheless, these interventions were unsuccessful. Tr. at 814. Specifically, the witness opined that personnel were ignoring Dr. report, reporting that . was not paying attention or forgetting certain classroom responsibilities. Although acknowledged that s reading had improved, she disagreed that progress had been “tremendous.” Rather, opined that had memorized the books after reading them repeatedly. Alternatively, used pictorial cues to guess the words, but continued to struggle with phonics. Tr. at 844-847. As .’s anxiety escalated, motivation declined. On March 19, 2014 the Parents re-activated their application to . Exh. 137 (bn 407).
On June 2, 2014, the CSE reconvened for the purpose of developing an educational plan for the 2014-2015 school year. Exh. 11 (bn 87-100). As it was clear to both and husband that . had made minimal progress during the school year, the Parents were hoping for a more intensive program of educational supports. Specifically, testified that .’s ability to add one digit numbers remained inconsistent. Although the District had conducted pre- and post-year rd math testing suggesting that . was now functioning at the percentile, she doubted the accuracy of the District’s testing. Tr. at 1037-1038. Moreover, when furnished with summer reading materials at levels D and E, the Parent testified that . was not independent at either level. While had acquired some sight words and could memorize the story, continued to utilize pictures for contextual clues, but could not read them phonetically and did not recognize the same word on a different page. Tr. at 1029-1030.
By this point, the Parents had learned that the integrated classroom format did not provide the individualized attention they believed . would be receiving pursuant to the “1 x weekly, 8 hr. 45 min.” recommendation articulated in the June 19, 2013 IEP. testified, “. . . and then we found out over the course of the year it’s just like a shared kind of thing, that is not getting ten hours specifically to or 1:1.” Tr. at 818-819. Although the number of co-teaching hours was increased, did not believe the new IEP offered any significant improvements over the 2013- 2014 IEP.
Although the child’s teachers opined that . had successfully transitioned from and had made “tremendous” progress, did not voice any objections to these remarks. Rather, believed these were the provider’s opinions and, “I didn’t argue against what opinion of the evaluation is.” Tr. at 911. Similarly, did not challenge the CSE’s view that had made some progress in reading, writing and math. Tr. at 912-915. Although believed some of the recommended modifications were helpful, noted that . still sat in the back of the room. 5 As such, believed the efficacy of some of these modifications were compromised. Tr. at 918. did agree, however, that had demonstrated improvement in the area of fine motor and social skills. Again, the Parent testified that had not objected to the reports offered by the CSE’s members as these were merely their opinions. As the meeting progressed, acknowledged that did not offer any suggestions or requests for specific supports as and husband were first absorbing the information presented. Tr. at 924. On July 29, 2014, the Parents executed an enrollment contract with and by letter dated August 4, 2014, the Parents advised District personnel that they would be placing . at . Exh. 124s (bn 304); H. On cross-examination, further acknowledged that the District had, in fact, responded to her August 4, 2014 ten day notice by letter dated August 11, 2015 but admitted had not responded to their overtures. Tr. at 929; Exhs. 124-125 (bn 308- 309).
The Parent testified that .’s 2014-2015 school year at was “transformative.” Tr. at 826. noted that was once more excited about attending classes, motivated to do homework and proud of achievements. Ibid. At a minimum, the witness observed that physical education is not provided by in a competitive context, a factor particularly
Based upon observations as a volunteer in the classroom important for ., given motor delays. Tr. at 1018-1020; Exh. 41 (bn 177-178). Similarly, opined that the Orton-Gillingham program had addressed many of ’s therapy issues (i.e. handwriting), and therefore, did not seek out additional therapy, preferring to concentrate on academics.
Most significantly, the Parent testified that the individualized math tutorial was particularly beneficial as were the sessions with , sessions in which and husband participated. Tr. at 826, 842-843. has learned to embrace disability; is no longer frustrated by challenges and has found emotional strength through the warm environment at . Finally, as the 2014-2015 school year progressed, the Parent testified that was very satisfied with the progress demonstrated by . Although formal test scores were not provided during the year, she noted progress based upon conversations with ’s teachers and the homework that observed. Tr. at 932-935. School has once more become a positive experience.
Finally, testified. He noted that he had been diagnosed with dyslexia as had his other children. He described . as an emotionally distraught child whose self-esteem had deteriorated as a result of constant academic frustration. As a result, . had become resistant to attending school in the mornings while evenings were characterized by tears and frustration. In contrast, the witness testified that . is now positively invested in his education and, although continues to struggle, looks forward to class. Based upon this alone, opined that . has made progress. Tr. at 1415. Nevertheless, the Parent additionally testified that has observed the child’s work product based upon materials displayed in .’s classroom and hallways, work reviewed on i-pad, discussions during open houses and conversations with other parents.
did not agree with the District’s characterization of ’s progress as “tremendous.” In furtherance thereof, described the protocol for the District’s yearly math test. noted that the week before, Parents were furnished with “homework” which was essentially a duplicate of the District’s upcoming test. Exh. Q. Parents were then instructed to review the materials with their children. As attempted to work with , . required frequent prompts to remain on task. Test questions were read to the child and the entire process took hours each night. noted that the process was extremely stressful and that both his wife and child were often in tears as they prepared for the test that week. Tr. at 1393-1395. Even with all of this preparation, however, testified that . relied upon a number chart in order to do the requested calculations. Tr. at 1395-1399. Ultimately, testified that did not believe . had validly obtained a score of 93 percent on the District’s math test as was unable to read the questions, continued to rely upon a number chart to perform simple calculations and had incorrect answers graded correctly on the actual test. Tr. at 1402-1403. The School District’s Position The District maintains that the June 2, 2014 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the District asserts that the IDEIA simply requires it to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). The District further maintains that is an inappropriate placement for the student as it does not comport with the notion of furnishing services within the least restrictive environment. Similarly, the District challenges the appropriateness of it program, its classroom groupings, curriculum, and report cards. Finally, counsel maintains that does not provide sufficiently individualized instruction for the child. As a corollary, the District contends that the Parents’ actions militate against their equitable entitlement to relief. Tr. at 34-35. The Parents’ Position
The Parents assert that the District stands in abrogation of its duty to provide . with a free and appropriate public education for the 2014-2015 school year in violation of the IDEIA (See 20 U.S.C. § 1412 (a)(1)(1997). As such, counsel maintains that the IEP generated June 2, 2014 reflects a number of substantive deficiencies which, in aggregate, compel nullification of the document. As a result, the Parents were compelled to unilaterally enroll their child at the School, a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). Consistent with this argument, the Parents contend that the School constituted an appropriate placement for their son during the 2014-2015 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement. Discussion It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]. In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]). In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" (B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199. Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]). Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]). Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69- 70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S. Ct. 361 (1993).
Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S.
359 (1985), was the June 2, 2014 IEP reasonably calculated to confer an educational benefit upon C.K. during the 2014-2015 school year? The Parents’ Due Process Complaint raises several issues. These include: the District’s (1) failure to offer sufficient individualized instruction in math and reading with research-based special education methodology; (2) unlawful pre-determination (3) failure to consider the continuum of placement options; (4) failure to provide adequate behavioral assessment and behavioral intervention plans and (5) failure to provide assistive technology. At the outset, I note that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.511[d], 300.508[d][3][i]; 8 NYCRR 200.5[j][1][ii]), or the original complaint is amended prior to the impartial hearing per permission given by an impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.508[d][3][ii]; see M.P.G., 2010 WL 3398256, at *8. Therefore, I am confining this opinion to these matters. 1. Did receive the individualized instruction required? It is well settled that an appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). The key to developing an appropriate IEP turns on whether the child’s present levels of performance are duly considered. Assessment of .’s needs I find that the IEP denominates an extensive list of cognitive and achievement tests which are current for the child. These include both private and District assessments, standardized and observational. Although the Parents’ private assessment is not referenced in the June 2014 IEP, the Parent credibly testified that report was, in fact, in the possession of the CSE as she had brought it over personally. Exh. F. In addition to measures of cognitive ability, assessments of .’s processing challenges, executive functioning deficits and were included. Exh. E. In fact, ’ report, privately obtained by the Parents, was referenced and, to some extent, relied upon. Exhs. 8, 40 (bn 68-69, 172). Among other things and as a result of ’ findings, the child’s classification was previously changed to , reflecting .’s recently acquired diagnosis of Exh. 6 (bn 43). Beyond the District's reliance upon standardized scores, classroom observations and teacher reports were utilized at the CSE convene. These findings parallel ’ report. In furtherance thereof, the record repeatedly documents the child’s limited ability to remain on-task and attentive. Consistent with the child’s early diagnosis of , .’s lack of focus was clearly a concern as early as 2013. By October of the 2013-2014 school year, the child’s teacher reported that, “ . has difficulty maintaining his attention and engaging in strategic planning tasks . . . .’s teacher indicated he will do one step of a task and then just wait.” Exh. 8 (bn 69). Concerned about,
.’s focus and attention,” had recommended an auditory processing consultation by December 18, 2013. Exh. 9 (bn 71). As the year progressed, quarterly assessments underscored
’s need for frequent prompts and limited ability to work independently. Although teacher prompts had become less intrusive. testified that . required, “. . . walk-bys, reminders, moderate assistance to keep working.” Tr. at 381-388; Exh. 96 (bn 259). Similarly, the 2013-2014 school reports consistently report that . “needs improvement” in ability to work independently. comments additionally state, . is very dependent on adult help. Even when know[s] what to do, often doesn’t work once the adult moves away from .” Exh. 131 (bn 329-331). Alternatively, indicated, “ . needs directions repeated, sometimes several times. needs teacher support to complete assignments . . .” Finally, a District Evaluation of Classroom Listening Behavior reports that “seldom” attends to a series of oral directions, “seldom” comprehends oral instruction in a group situation and “seldom” comprehends oral instruction in a noisy environment. Exh. 90 (bn 249). Beyond cognitive and attentional issues, the child’s memory deficits were clearly apparent to the CSE and personnel. While the Parent immediately observed ’s struggles at the inception of the school year, even wrote in November 2013, “The three day weekend was too long for ’s math skills. has forgotten how to add using a number line or drawing circles.” Exh. 82 (bn 239).
’ standardized testing similarly underscored ’s struggles with processing speed, working memory and perceptual reasoning. Exh. E at 5. As per report, “ .’s capacity to process auditory/sequential material, as well as hold this information in short-term memory, in order to problem solve, is consistent with the vast majority of his other cognitive functions, falling approximately two-thirds of a standard deviation below the mean” (emphasis added). Particularly, in the area of memory, ’ reported standardized scores on the Children’s Memory Scale, stating, “. . . with visual and visual/spatial material, the level of recall can fall as low as the 1st percentile, this after a period of delay (emphasis added). Exh. E at 7. Clearly, these deficits manifested themselves in the classroom. For example, commented on one of .’s math sprints, “ . has forgotten how to add. I started a re-teaching of this skill.” Exh. C at 2. Again, after repeating his year of grade, the child’s June 2, 2014 IEP indicates that . has “inconsistent retention of math symbols and steps needed for problem solving and computation.”
Two areas of weakness, sentence memory and cue recall, were particularly significant for the child, reflecting standardized scores at the th percentile on the Auditory Processing Abilities Test. Exh. 11 (bn 90). Following directions was similarly problematic for . whose scores on the CELF-5 fell at the th percentile for a sub-test measuring this ability. Ibid. While additional scores on the Auditory Processing Abilities Test and CELF-5 largely hovered about the th to th percentile, , the clinician, observed that these scores were obtained "in a quiet environment that was free of distractions." Exh. 11 (bn 93). Nevertheless, even within an “ideal listening environment,” as described by , serious deficits in the areas of cued recall and sentence memory 6, were evident. Exh. 40 (bn 176). Given the unnatural setting in which much testing occurred, I believe .'s scores were artificially inflated and did not reflect the extent of the child's true disability. Indeed, notwithstanding many low to middle range scores, the clinician noted that ., "can have more difficulty with auditory tasks within the classroom. With the classroom setting, it is important to reduce background noise, gain attention prior to giving directions, use visual cues and provide examples to aide in understanding directions and orally presented information." Exh. 11 (bn 93). This is particularly important given the District's determination that an FM unit served little purpose for .’s ability to function within the classroom. Indeed, evidence of these co-morbidities transferred into .’s classroom and even beyond. In the non-academic arena, the child's lack of focus was observed by both the and therapy providers. For example, the child's therapist reported that . demonstrated "good focus and direction within (sic) quiet therapy environment for testing. Nevertheless, observed that .’s ability and/or willingness to focus and participate did not always translate into the group setting. Exh. 11 (bn 94-95). While therapy services were additionally offered in a non-integrated environment, even within this setting the therapist reported that "directions often need to be repeated and explained." Exh. 11 (bn 94). Finally, in the most current therapy report (referenced by the June 2014 IEP), therapist noted that . continued to struggle in the areas of fine motor integration, visual perceptual skills, motor planning, coordination and writing. 6th
Both percentile scores reported, . displayed difficulty with keeping focused for ocular motor tracking. became distracted during tracking and looked at the evaluator instead of the object to be tracked." Exh. 37 (bn 166). Clearly, even within the artificial setting of one-to-one testing, struggled to remain on task. By March 17, 2014, nearly the end of the school year, it was clear to the District that . required more assistance than he was currently receiving. In a meeting requested by the District, ' frustration was clear. In her notes, the special educator noted that the child required constant prompts. When reading, . did not persevere or did not remember how had read a difficult passage. Although testified that .’s “squiggly” handwriting was not seen at the end of the school year, notes in March 2014 state that the child’s unprompted writing "almost always" reflected "lines of squiggle 7 letters that no one can read." The June 2, 2014 IEP notes, “. . . has difficulty getting ideas down in a way that can be read by self and others.” Exh. 11 (bn 93). In math, . would finally learn a rule and then "use it for everything." In reading, observed that . was, "not yet reasoning story problems even when acting out with manipulatives." Exh. 96 (bn 259-260). By March 2014, the record indicates that . continued to exhibit limited number sense, demonstrating an inability to choose between two or eight cookies. Exh. 96 at 3 (bn 261). In fact, the June 2, 2014 IEP indicated, " .'s performance is inconsistent from day to day. Some days needs many prompts; some days independently uses skills." It is beyond cavil that a skill is not acquired until it is accessed by that child consistently from day to day. This is particularly true where, for example, these skills cannot be produced "on demand" when requested by personnel and/or family members across various time frames and environments. As a result,
.’s ability to function within the classroom cannot only be viewed in terms of test scores developed under therapeutic and ideal conditions, especially where integrated classes are anticipated. As suggested by therapist , low and average scores yielded within an optimal test environment are not necessarily dispositive of actual ability within the context of a larger classroom environment. This is especially true where, as with ., deficits in processing Although testified that .’s handwriting became more legible towards the end of the year, I am not persuaded that the child’s penmanship improved meaningfully, following the March 17, 2014 meeting. Tr. at 170. interact synergistically with other co-morbidities such as ADHD and a diagnosed anxiety disorder. Exh. F. Although the CSE possessed the requisite assessments, it did not adequately appreciate their contents. Recommendations for the 2014-2015 school year At the outset, I find that the District’s description of an integrated class as a “small class” is disingenuous. This is particularly so in view of the fact that there may be 18-22 children in a classroom in which much initial instruction was provided as a large group. Even when instruction is offered in smaller groups, the presence of 18-22 children within the same classroom clearly generates distractions for a child such as ’ testimony that instruction was provided in small groups of 3-5 students ignores this reality and is inconsistent with own testimony. Tr. at 158-159; 343-346. Having said this, it should be note that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual and auditory stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting or just plain wrong. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of transition issues, such as packing up materials and regaining focus are marginalized. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented to a large group. This is particularly true where instruction is initially provided to the whole class and -only later- offered to . independently or within a small group. Tr. at 135. Given .’s multiple cognitive, attentional, memory and emotional issues, the benefits of whole class or “gradual release” instruction are questionable, especially where there is no special education support actually present during much of this time. Tr. at 154-156. Clearly, the delayed feedback, inherent within a larger integrated class, would impact negatively th st on a child whose processing speed and working memory fell at the and percentiles respectively. ’ report specifically notes that, “While . excels in capacity to learn and retain verbal material . . . with visual and visual/spatial material, the level of recall can st fall as low as the percentile, this after a period of delay. Exh. E at 7. Given these deficits, it is clear that the 2013-2014 integrated setting provided a learning environment for math and ELA in which instruction advanced at a pace far out-stripping .’s ability to process and retain materials. Under these circumstances, it is unlikely the additional two hours of instruction offered within the June 2, 2014 would compensate for the lack of full-time small group special instruction. Beyond this, the use of a classroom management system such as the Reader’s Workshop’s, “Daily Five” protocol, while structured, is inconsistent with the needs of a child who requires constant supervision and who struggles to work independently. Clearly, . has had a long history of struggling with independent assignments. As early as 2012, the District was apprised of .’s inability to cope at , an environment in which independent learning was encouraged. While the Daily Five format enables teaching personnel to offer small group or individual instruction to some children while others are engaged in self-selected independent activities, I am not persuaded that this time was utilized meaningfully by the child, given the testimony of his teachers. Tr. at 144. Finally, the limited use of special education materials is noted. testimony regarding classroom computer and/or i-Pad programs was simply unpersuasive. In contrast, the Parent’s testimony regarding the language-rich GO Math text and its visually distracting page lay-outs was unrebutted by District witnesses. Consequently, I believe the June 2, 2014 IEP provides an educational scenario in which . would always be struggling to develop foundation skills while others are moving on to more advanced materials. Adding two additional hours of what essentially amounts to part-time consultant teacher services does not alter the pacing of instruction, the level of instruction or the degree of distraction associated with increasing class size. For a disabled child with processing issues, significant memory deficits, and a diagnosed disorder who is already functioning two to three years below grade level, this is a perfect storm.
Assessments of the child’s academic progress
Finally, I am not persuaded that descriptions of the child’s “tremendous” progress are accurate. In furtherance thereof, I believe assessments of the child’s progress were bolstered by the presence of constant teacher prompting, rehearsal, number grids and memorization for yearly District assessments. Tr. at 1393-1402; Exh. Q. Beyond this, s testimony regarding s memorization of classroom reading material and his reliance upon pictures was essentially unrebutted. It is unlikely . was able to independently read any of the word problems or symbols on his math tests as the June 2, 2014 IEP indicates that . has “inconsistent retention of math symbols and steps needed for problem solving and computation.” Under these circumstances,
’s leap from the th to the rd percentile in math is questionable. Tr. at 387-389; Exh. 132 A. Clearly, when asked to replicate these achievements, . could not and by the beginning of the 2014-2015 school year, these skills were largely no longer present. While the District is not a guarantor of academic success, I believe the program offered to . did not adequately consider his need for small and individualized classroom instruction in which acquisition and retention were equally stressed.
Clearly, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "‘appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n.21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside" as the IEP (Rowley at 192). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, supra at 195, quoting Walczak, supra, at 130. In view of the circumstances stated above, I believe the District’s CTT programming did not offer the individual and small group instruction required. As such, it placed them in abrogation of their duty to offer . a FAPE.
2. Per 8 NYCRR 200.6(g), did the District consider the entire continuum of special education services for .? In the matter at bar, the District simply offered the child what was available, rather than what C.K. needed. In this manner, the CSE responded to the child’s wide-ranging deficits by cobbling together a program which included the appearance of a CTT classroom along with multiple classroom accommodations and instructional modifications, in addition to pull-out services in , therapy and therapy. It did NOT consider a small classroom. Adopting the District’s language in its Memoranda of Law, the child was essentially “shoe- horned” into an existing program. In fact, the real question is whether all of these educational enhancements can compensate for the lack of special education instruction within a small class. While an IEP may exist in pristine format, it is not merely a theoretical document. It is only as good as its ability to be implemented. Although I have noted the instructional techniques utilized by , including repetition and break-down of instructions, use of a multi-sensory approach, environmental and educational accommodations, I believe their actual implementation in a classroom of this size is more illusory than real. It is clear that .’s ability to function independently within the classroom has steadily deteriorated as academic demands have escalated. Indeed, .’s need for structure and supervision was a precipitating factor in the Parents’ decision to remove him from . Exh. 130 at 2 (bn 316). Instead, they chose to avail themselves of the panoply of services offered within District as s children (one of whom was learning disabled) had been successfully educated within District. Aware of the child’s need for greater structure and supervision, the District placed . in an integrated classroom setting for both the 2013-2014 and 2014-2015 school years. While there is some dispute regarding the success of the 2013-2014 school year, I must address, at the outset, the recommendations articulated in the IEP of June 2, 2014. At the very least, the IEP’s recommendation for an integrated co-teaching class are confusing and misleading. Exh. 11 at 1 (bn 0087). The recommendation states:
“Integrated Co-teaching Services 9/4/2014-6/23/2015 1 x Weekly, 10 hr. . . . “
Consistent with 8 NYCRR 206(g) (1), a school district may include integrated co-teaching services in its continuum of services. However, “. . . (2) School personnel assigned to each class shall minimally include a special education teacher and a general education teacher. Additional personnel, including supplementary school personnel, assigned to such classes by the district, may not serve as the special education teacher pursuant to paragraph (2) of this subdivision. The statute does not address part-time placement of a special educator as a means of fulfilling the requirements for establishing an integrated co-teaching class, nor does it anticipate the placement of a teaching assistant as a means of fulfilling the CTT mandate. Clearly, a strict construction of the text does not allow for part-time special educator assignments as a matter of public policy. To construe the regulations otherwise would simply allow school districts to dilute the value of integrated co-teaching classes by placing special education personnel in these settings for minimal periods of time per day. It would simply offer Districts an "end-run" around their duty to offer integrated classes. Ultimately, the District’s recommendation offered no certainty to the Parents as to what services their child would receive. In fact, even could not specify how services would be allotted to the child, as the varying CTT mandates of other children in the classroom would have an impact upon their delivery. Tr. at 141-142.
In contrast, 8 NYCRR 200.1(m) and 200.6(d) reference the requirements of consultant teacher services. Specifically, the regulations state, “ Consultant teacher services means direct and/or indirect services, as defined in this subdivision, provided to a student with a disability in the student’s regular education classes and/or to such student's regular education teachers. (1) Direct consultant teacher services means specially designed individualized or group instruction provided by a certified special education teacher pursuant to subdivision (yy) of this section, to a student with a disability to aid such student to benefit from the student's regular education classes. (2) Indirect consultant teacher services means consultation provided by a certified special education teacher pursuant to subdivision (yy) of this section to regular education teachers to assist them in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a student with a disability who attends their classes. Clearly, the District’s recommendation was implemented as though it were a consultant teacher recommendation. The absence of a full-time special education teacher, an undisputed fact, underscores this. Although District personnel testified that this format offered them instructional flexibility which ultimately inured to the benefit of the children, children such as . did not receive the level of service mandated by a CTT recommendation nor did this recommendation provide the level of service his Parents anticipated. Rather, testified that that the recommendation on the child’s 2013-2014 IEP meant that she would provide services to . for “eight hours forty-five minutes guaranteed.” Tr. at 141. Given the District’s actions during the 2013-2014 school year, it was reasonable to believe this was how the District would commit itself to services in its “Integrated Co-teaching Services 9/4/2014-6/23/2015 1 x Weekly, 10 hr. . . .” recommendation. Based upon the foregoing, it is clear that . received some hybrid service during the 2013-2014 school year not contemplated by the regulations. The child’s special education teacher did not have a full-time assignment to his classroom. Many subject areas, including sections of ELA, social studies and science, were taught in one large group of 18-22 children. Tr. at 109, 343-346. When did offer services, the small group instruction often included children who were not certified into special education in groups which were ever-changing in composition. Tr. at 351- 352. None of this is in dispute. While the IEP’s phrasing offered the District a great deal of flexibility in terms of staffing requirements, it did not commit itself to providing full-time support in its integrated class. Although testified that two full-time instructors had been assigned to the 2014-2015 grade CTT class, the IEP does not make this clear. More substantively, testimony is “retrospective” in nature and cannot be used to compensate for deficiencies in the child’s IEP (R.E. v. New York City Dep’t of Educ. 694 F.3rd 167, 59 IDELR 241 (2nd Cir.) Relying upon the “four corners” of the IEP, the Parent would have no idea as to what was truly being offered to her child, and in fact, the Parent credibly testified that she did not. Tr. at 784. 818- 819. As such, I believe the IEP’s confusing verbiage established a procedural infirmity which compromised the integrity of the June 2, 2014 IEP and impaired the Parent’s ability to participate knowledgeably in the CSE proceedings (20 U.S.C. 1415 (f)(3)E); 34 C.F.R. 300.513(a)[2]). While the District’s recommendation is ambiguous and unclear, there is no doubt that it did not offer . a small class. 3. Did the District engage in impermissible pre-determination? The presence of pre-determination in educational planning is totally antithetical to the collaborative decision-making anticipated by the IDEA (T.P. vs. the Mamaroneck Sch. Dist., 554 F.3rd. 247 adopting the principles set out earlier in Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] and Deal v. Hamilton Cty. Bd. of Educ., 392 F.3rd. 840 (6th Cir. 2004), cert denied, 546 U.S. 936 (2005). However, where a Parent has actively participated in the development of an IEP, the courts have rejected pre-determination claims (J.G. ex. Rel. N.G. vs. Kiryas Joel U.F. Sch. Dist., 77 F. Supp. 2nd 606, 648 [SDNY 2011]). See also E.H. v. NYC Dep't of Educ. 1:2014cv08488 (2/16/16).
Key to a finding of pre-determination is whether the district has "an open mind as to the content of [the student's IEP"] (T.P., supra, 554 F.3d at 253; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [S.D.N.Y. 2009]). While districts are permitted to develop draft IEPs prior to a CSE meeting, they may not “. . . deprive parents of the opportunity to meaningfully participate in the IEP development process'" (Dirocco ex rel. M.D. v. Bd. of Educ. of Beacon City Sch. Dist. et. al., 2013 WL 25959 (SDNY) 2013) et.al., 2013 WL 25959, at *18, quoting M.M. ex. Rel. A.M. vs. New York City Dep’t of Educ., 583 F. Supp. 2d at 506). Districts may also "'prepare reports and come with pre-formed opinions regarding the best course of action for the [student] as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions. As stated in T.P., "predetermination is not synonymous with preparation.” T.P., 554 F.3d at 253.
In the matter at bar, evaluations of both Drs. and were presented to the CSE. On prior occasions, this input resulted in a change of classification, goals and the addition of as a related service. On June 2, 2014 additional special education hours were incorporated into .’s IEP. Finally, the CSE did, in fact, consider more than one alternative placement for the child, although these options were patently inappropriate for . In the matter at bar, the only limitation on the Parents’ participation was their own desire not to be confrontational. Under these circumstances, the Parents have not established a claim for predetermination.
4. Did the District fail to provide adequate and appropriate assistive technology to .? I note, at the outset, that much of the computer software utilized within .’s classroom was oriented toward the general education population. Tr. at 486-487, 489. And, even Touch Math, an alternative math program made partially available to the child, could not be utilized on a Daily Five basis although it had been successful for . Exh. 83 (bn 240). Nevertheless, the District did trial the use of an FM unit, did provide an interactive projector, computer and I-pad. Although only one I-pad was available within the classroom, Daily Five computer access was offered through the Daily Five program. While not ideal, I must reject the Parent’s claim that the District failed to provide meaningful access to assistive technology. In fact, rejection of the Dragon Dictation software was consistent with s approach. Tr. at 347-349. Neither believed . was ready for this technology and both believed . should master certain skills independently before developing a reliance upon technology. Indeed, specifically opined that the physical act of cursive writing was educationally beneficial for the child. Tr. at 553-556, 686-688. While it might have been helpful for to refer the child for an assistive technology evaluation, I do not believe this failure alone rises to the level of a lack of FAPE.
4. Did the District’s failure to develop a functional behavior analysis and behavior intervention plan place them in abrogation of their duty to provide FAPE? Finally, I note that the District’s efforts to address .’s anxiety appear to have been implemented casually within the classroom without formal intervention. Again, the IEP recommendation is unclear as to the level of service (“20 x Yearly, 30 min, small group”). Exh. 11 (bn 87). There are no reports in the record and, although a social worker participated in the CSE convene, it is unclear who was responsible for implementing the IEP’s one goal. In fact, it is unclear whether . actually received this related service at all. Despite .’s emotional crises at home related to school anxiety in the beginning of the school year, the Parent was never referred to a specific individual to address concerns. Tr. at 802-803; Exh. 115 (bn 287). Although it is evident that the child was experiencing “melt-downs” and “tears” at home, this was not observed in school. Nevertheless, the record indicates that personnel were aware of .’s anxiety and made relevant accommodations. This included modifying homework assignments and in-class work (i.e. math sprints), implementing test accommodations and minimizing the importance of various projects in class. Both and testified that they tried to maintain consistency for the child and prepare him for changes in classroom routine, when necessary. Although this is not their burden, at no time did the Parents request either a functional behavior analysis or a behavior intervention plan. In fact, an additional layer of support might well have stigmatized the child even more, as . was acutely aware of his shortcomings relative to his peers, a situation replicated at . While it is obvious that the District fell short in its obligation to address .’s anxiety, I do not believe its failure to develop a functional behavior analysis and behavior intervention plan, in and of itself, rises to the level of a denial of FAPE (20 U.S.C. § 1414(d)(3)(B)[i]).
Point II: Was an appropriate educational placement for . during the 2014-2015 school year? Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]). The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.
is a small private school which is not approved by New York State. During the 2014- 2015 school year, its enrollment was limited to 80 children, of whom ten were ultimately assigned to the lower school’s program. Administrator noted that offers a specialized program utilizing Orton-Gillingham methodology for cognitively intact dyslexic children. Tr. at 526-529. In furtherance thereof, administrator cited the work of Gordon Sherman and the tenets of the Orton Gillingham method, a protocol dedicated to multi-sensory instruction. More importantly, it maximizes the use of visual and 3-dimensional presentations which opined were strengths for many dyslexic children.
I find, at the outset, that the academic program offered by correlates well with the student’s academic needs, as identified in the IEP. As such, . attends classes with similarly profiled children. deficits are not highlighted through frequent pull-outs and modified assignments, enabling the child to receive educational support along with the rest of the class. The School emphasizes the use of i-Pads, computers and SMART board technology which can facilitate both pictorial and motor-based approaches to math instruction. Tr. at 550-553. The Orton Gillingham focus on recognizing patterns as a means of developing academic skills is additionally reinforced by the School’s instruction in cursive writing. students receive one period per day of 1:1 tutoring in addition to a second Daily Five homework study hall supervised by an individual who has been trained in the Orton Gillingham methodology.
Administrator noted that each student is furnished with a 1:1 i-Pad while the use of computer generated work is stressed. In this manner, deficits in organization and executive function are minimized by the absence of loose papers and work sheets. Tr. at 1120. As a , . was assigned to an age-appropriate classroom in which materials and instruction were differentiated by individual ability. Tr. at 559-560. Beyond the use of individually assigned i- Pads, specialized programs using multi-sensory presentations are utilized. This includes the application of Orton-Gillingham methodology to recognizing patterns in math and understanding word problems. In addition, Numicon, a highly concrete math program, is utilized. Tr. at 1109, 1271-1272.
As a result of .’s poor math skills, the child began receiving 1:1 tutoring and ultimately was assigned to a math class with three other students. In this intensive environment, .’s teachers were able to check-in frequently with the child to ensure both comprehension and focus. Related services are offered by the School District, the public school district within which is located. Although the Parents have not pursued the need for either or therapy services, . receives by a therapist retained by the School. The School does not provide a mainstreaming experience, however the Parents testified that participates in local social and religious activities with mainstream peers. Finally, the Parents have described their experience at as “transformative,” suggesting that now “owns” disability, feels proud of strengths and accepting of weaknesses.
While noting that ’s student population reflects an appropriate cohort for ., the child’s placement in a classroom comprised of four different grade levels for all subject areas except math and English, was inappropriate. Tr. at 634-635. While nothing is to be gained by insisting that older children remain in classes with children several years younger merely because their academic grade levels are similar, the heterogeneity at militates against the notion of meaningful individualization. Tr. at 634-635. Although not mandated to observe the dictates of 8 NYCRR 200.6(a)(3)(i), testified that this setting was not ideal while acknowledged that the only reason these children had been grouped together was because there were no other class alternatives. Tr. at 1198-1199.
In a similar vein, I find the use of fourth grade literature for the entire class, although read out loud, troubling. Tr. at 1234-1235. While witnesses credibly testified that material was differentiated for each child’s grade level, one wonders how meaningfully materials can be tailored to .’s needs where so many instructional levels are present. This is additionally concerning as each teacher develops their own curricula, which bear no relationship to that of New York State.
Finally, I find that the School’s evaluation and report card system provides little substance, if any, in terms of the child’s progress. In perhaps an effort to remove the anxiety from report cards, has adopted a system which offers minimal concrete feedback in a non-judgmental, “feel-good” format. Administrator offered few insights into the report card’s use of various descriptors (i.e. “Inquirer, Knowledgeable, Thinker, Communicator” etc.). Dr. reported that there are no specific criteria for these descriptors and could not explain how any of these had been assigned to the child. Tr. at 1233. Even could not remember any specific training regarding the use of the report card descriptors other than discussions with co-teacher,
. Tr. at 1383. Indeed, based upon the report card alone, a Parent would find it difficult to know what progress child was making. Nevertheless, witnesses testified to alternative forms of feed-back, including teacher emails, phone calls, classroom observations, weekly homework files sent to the parents and parent/teacher conferences and, in this manner, information could be exchanged more immediately. In view of all of the above, I find that the educational services at were only partially appropriate.
Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2014-2015 school year? Prong three of Burlington, supra, provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).
In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).
I find, at the outset, that the Parents’ award must be reduced as they have not entirely met their equitable duties consistent with 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]. Clearly, they have been more than collaborative in terms of sharing private evaluations in a timely manner. Exhs. E, F, 106. The Parent additionally articulated many of concerns about .’s progress during the school year via email and in person. When requested, they attended all CSE meetings and teacher conferences. I further note that volunteered in the child’s classroom and both Parents worked diligently with him on homework assignments. There is no question that the Parents participated cooperatively during the CSE proceedings and that the parties worked collaboratively in the absence of hostility and negativism. Indeed, the record indicates that, “ and have been instrumental in .’s progress. They have carried over .’s goals and objectives into the home environment with suggested activities from his teacher and this SLP (sic) 8.” Exh. 32 (bn 150). Finally, they did not sign their contract with until August 4, 2014 although they had expressed an interest in this placement for two school years. Exh. 124 (bn 304). However, in their effort to remain pleasant and cooperative, the Parents’ passive approach to the CSE proceedings in June 2014 militates against the parent-school collaboration anticipated by the IDEA. Indeed, the axis upon which the IDEA spins is the mutual exchange of information between parent and school. While they did, in fact, offer the results of various psychological and psychiatric testing, they were silent participants in the CSE convene. They did not object to the child’s goals, and evaluations, modifications or accommodations. They did not ask for a functional behavior assessment or behavioral intervention plan.
Indeed, the Parent acknowledged that did not offer any suggestions or requests for specific supports as and were first absorbing the information presented at the June 2, 2014 CSE. Tr. at 924. Similarly, she did not dispute the Committee members’ assessments regarding .’s progress. Although she clearly disagreed with them, testified that she viewed these provider reports as mere opinions and, as such, were not subject to debate. Tr. at 911. did not express opposition to the CSE’s proposed educational services nor did indicate desire for any particular programmatic changes. Tr. at 1026-1028; 1035-1036. Though clearly well-intentioned, their efforts to be “polite” and “agreeable,” did not place the District on notice as to their opposition to the District’s IEP. By failing to clearly object to the CSE’s proposals and their assessments of progress and ignoring the District’s later attempts to reconvene the CSE, the Parents eliminated any efforts on the District’s part to remedy ’s IEP so that it would be mutually acceptable to all. These circumstances militate, in part, against the Parent’s right to equitable relief (Mr. A. v. New York City Dep’t of Educ., 769 F.Supp.2nd 403; 56 IDELR 42
(S.D.N.Y. 2011)
Finally, although it is clear the Parents had re-activated their application to Kildonan as early as March 19, 2014, long before the June 2, 2014 CSE convene, this may well reflect the enrollment exigencies of and/or District busing protocols, rather than any firm decision to reject the District’s proposed placement before one was even offered. Exh. 137 (bn 407). Significantly, they did not sign s contract for the 2014-2015 school year until July 29, 2014. Exh. H. Indeed, the Parents had previously abandoned their application to in favor of public school placement and their testimony regarding their preference for public school is convincing and credible.
Although the District urges an adverse inference based upon s failure to comply with its subpoenas, I note that functions independently and apart from the Parents. There is no evidence that the Parents were aware of ’s indolence in complying with the District’s subpoenas and it would be unjust to hold them responsible for ’s actions.
Conclusion Although the Parent’s request for relief is granted, in part, for the 2014-2015 school year, the award must be reduced based upon the appropriateness of and additional equitable considerations. Wherefore, it is hereby ordered that:
Within 30 (30) days of the date of this Order, the District shall reimburse the Parents, and . in the amount of $24,000.00 for tuition expenses incurred during the 2014-2015 school year at . This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint dated March 12, 2014.
Dated: March 22, 2016
_____________________________________________ Leah Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer
Persons in attendance on June 15, 2015
For the Parent:
, Esq. . Parent ., Parent For the School District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
, Special Education Teacher, School District
Persons in attendance on September 17, 2015
For the Parent:
, Esq. . Parent ., Parent For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
, Special Education Teacher, School District
, General Education Teacher, School District
Persons in attendance on October 26, 2015
For the Parent:
, Esq. . Parent ., Parent , Head of School, For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
Persons in attendance on October 27, 2015
For the Parent:
, Esq. . Parent ., Parent For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
Persons in attendance on October 29, 2015
For the Parent:
, Esq. . Parent ., Parent
, Instructor, 2014-2015 For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
Persons in attendance on November 4, 2015
For the Parent:
, Esq. . Parent ., Parent
, Ph.D., Ed.D., Academic Dean, For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education
Persons in attendance on January 8, 2016
For the Parent:
, Esq. . Parent ., Parent
, Instructor, 2014-2015 For the District Shaw, Perelson, May and , LLP by , Esq.
, Supervisor of Special Education