New York City Department of Education, Impartial Hearing Decision

________________________________________________________________________

In the Matter of the Due Process Hearing Between

The Parents of DELETE DELETE And

DELETE DELETE SCHOOL DISTRICT

Pursuant to the Provisions of Article 89 of the Education Law of the State of New York VESID Case #94920

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

APPEARANCES:

CUDDY LAW FIRM, P.C.

Attorneys for Parents 50 Main Street White Plains, New York 10606 , ESQ., Of Counsel

SHAW, PERELSON, MAY & LAMBERT, LLP

Attorneys for DELETE DELETE School District 21 Van Wagner Road Poughkeepsie, New York , ESQ., Of Counsel

JURISDICTION

This proceeding was commenced by the parents (hereinafter “Parents”) of BLANK BLANK, (referred to hereinafter as “Student”), a student residing within the territorial jurisdiction of the BLANK BLANK School District and a student previously determined to be a student in need of special education, by the filing by the Cuddy Law Firm, P.C., of a Due Process Complaint Notice, dated forwarded on Parents’ behalf to the BLANK BLANK School District (Exhibit A), which, according to the New York State Education Department’s Impartial Hearing Recording System, was received by District on December 21, 2015. . The Due Process Complaint Notice challenged the failure of District to find that Student was a student in need of special education and related services during the 2010-2011 school year, as well as challenging the sufficiency of the special education programs afforded to Student by District during the 2011-2012; the 2012-2013; the 2013-2014; the 2014-2015; and the 2015-2016 school years. As relief for such alleged failures on the part of District during the 2011-2012; the 2012-2013; the 2013-2014; and the 2014-2015 school years, Parents sought compensatory education and compensatory services. Parents also allege that, because of the insufficiency of the special education program proffered to Student for the 2015-2016 school year, Parents were required to unilaterally place Student at the BLANK BLANK School and seek reimbursement for tuition, services, transportation and fees..

I was appointed by District as the Impartial Hearing Officer having jurisdiction of this proceeding by letter dated December 22, 2015. On January 6, 2106, I advised the parties that I would conduct a Pre-Hearing Conference on January 13, 2016, which date was thereafter delayed to January 20, 2016. At such Conference, District’s Counsel noted that certain allegations contained in Parents’ Due Process Complaint extended far beyond a two-year date preceding the filing of Parents’ Complaint and raised objection to any matters being considered that went beyond the appropriate Statute of Limitations. Parents’ attorney contended otherwise. A hearing was conducted on February 12, 2016 to hear the positions of the parties and receive evidence sufficient to render a determination. By Interim Order, dated March 14, 2016 (I.H.O. Exhibit ?) District’s position was upheld and it was ordered that all issues raised by Parents in their Due Process Complaint (Exhibit A) that preceded the date of December 22, 2013 would be barred.

THE HEARINGS

Hearings were thereafter held in the above referenced proceedings at the Administration Office of the District, located in BLANK BLANK, New York, on the following dates: April 12, 2016 April 13, 2016 April 20, 2016 April 21, 2016 May 13, 2016 May 23, 2016 June 2, 2016 June 8, 2016

The parties were advised, prior to the commencement of the receipt of testimony, that each would have the right to call witnesses on their behalf, to cross-examine witnesses called by the other party and to offer exhibits into evidence. The parties were further advised that nothing except the sworn testimony of the witnesses appearing in this Proceeding and the contents of the exhibits received into evidence would be considered in my determination of this matter.

The District, in submitting its case-in-chief, presented the testimony of seven (7) witnesses. They were:

BLANK BLANK Student’s Special Education Teacher during the 2014-2015 school year – also participated in Committee Meetings of January 24, 2015 and May 22, 2015

BLANK BLANK Employed by District as a – Conducted a of Student in May 2014 – also

Participated in Committee Meeting of June 12, 2014

BLANK BLANK Employed by District as a –Provided to Student during the 2014-2015 school year

BLANK BLANK Employed by District as an – provided to Student during the 2014-2015 school year –

Also participated in Committee Meeting of January 25, 2015

BLANK BLANK Employed by District as a Reading Specialist –

Provided Reading Services to Student during the Summer of 2014 at a District Reading Camp as well as providing Student with building-level

Reading Services as part of AIS during the

2014-2015 school year –also attended the

Committee Meeting of May 22, 2015

BLANK BLANK Employed by District as a School Social Worker – Included Student in a Building-level social Skills program during a portion of the 2013-2014 school year, as well as a portion of the 2014-21015 school year - Provided to Student during a portion of the 2014-2015 school year

BLANK BLANK Employed by District as a School Psychologist

Participated in Committee Meetings on May 22, 2015

In addition to the submission of testimony of the above-named witnesses, District offered into evidence three exhibits, all of which were received and considered.

Parents presented the testimony of five witnesses. They were:

BLANK BLANK Parent of Student

BLANK BLANK, Ph.D. – Conducted Evaluations of Student in March of 2015 and again in

March and April of 2016 – Participated

in Committee Meeting of April 30, 2015

BLANK BLANK An Educational Consultant – is

Employed by the BLANK BLANK

School as a Parent Advocate

BLANK BLANK Director of the BLANK BLANK

Learning Center – Assessed Student on

April 12, 2016 – Proposed Remedial Program

BLANK BLANK Ph.D. Retired School Psychologist - Had been employed by District as a

School Psychologist – Conducted

Evaluation of Student in November and

December of 2014 – Also served as

Chair of Committee Meetings of May 6,

2014 and January 25, 2015

In addition to the submission of testimony of the above-named witnesses, Parents offered into evidence forty-four exhibits, all of which were received and considered.

At the conclusion of proceedings, both attorneys requested the opportunity to submit Post-Hearing briefs. The request was granted and a submission date of July 11, 2016, was established, which date was met by both parties. Such Post-Hearing briefs have been reviewed and considered. Each party has timely filed. The date of July 14, 2015 is the Actual Record Close Date.

DISCUSSION

As indicated above, Parents, through their attorneys, initiated this Due Process proceeding by the filing of Parents’ Due Process Complaint Notice (Exhibit A). That Complaint alleged failures on the part of District that commenced when Student entered District’s program for the 2010-2011school year and continued each school year thereafter, including the 2016-2016 school year. District sought to bar Parents from having any issues considered that arose more than two years from the date of Parents’ filing, on the basis that such issues that predated the Date of Parents’ filing by more than two years violated the Two-Year Statute of Limitations imposed by the provisions of both Federal and State Law and Regulation. A Hearing on such objection raised by District was conducted on February 12, 2016. Thereafter, by Interim Order dated March 14, 2016 (I.H.O. Exhibit IV), District’s objections were upheld. Parents were barred from being heard on all issues that preceded the date of December 22, 2013. The hearing then continued, as indicated above, on Parents’ remaining issues.

THE STUDENT

\ Student was, at the time of the commencement of this proceeding, BLANK years one month of age, having been born on BLANK BLANK. Parent testified that Student been born to an incarcerated person who had been living on the streets in BLANK addicted to heroin and other drugs. Parent further testified that Parents had been advised by the birth- mother’s pediatrician and other specialists that Student would be predisposed to having needs due to such prenatal history and the birth mother’s genetic predisposition to mental illness (T.R.42-43). Student had been adopted by Parents soon after birth (T.R. 42-43).

In Student’s I.E.P. prepared by District’s C.S.E. for the 2013-2014 school year – the first year for which any allegation made by Parents in their Due Process Complaint is not barred by the provisions of the applicable Statute of Limitations - Student is classified as having a (Exhibit D). In I.E.P.’s created by District’s C.S.E. on May 8, 2014 (Exhibit F) and again on June 12, 2014 (Exhibit E), it is that reflected Student’s diagnoses were BLANK BLANK and BLANK BLANK (combined type). Student’s classification was continued as . In the Individualized Education Program (I.E.P.) prepared by District’s Committee on Special Education (C.S.E.) on January 23, 2015 (Exhibit G), it is noted that Student has been diagnosed as having BLANK BLANK Disorder (BLANK); BLANK BLANK Disorder; BLANK Disorder; and a BLANK BLANK Disorder. Student had transitioned from the District’s BLANK Elementary School to the BLANK Elementary School for the 2013-2014 school year, as Student entered the Fourth Grade. District places its Fourth and Fifth Grade students at the Crompond Elementary School. A Psychological Evaluation of Student was performed by School Psychologist BLANK in March of 2012. The results of that evaluation (Exhibit K) indicated that Student, evaluated through the use of the Wechsler Intelligence Scale for Children – Fourth Edition (WISC-IV), disclosed a Verbal Comprehension Score of , placing Student in the cognitively range, percentile; a Perceptual Reasoning Index of , placing Student in the Range; and a Full Scale IQ of - with the caution that such be interpreted with extreme caution, as Student demonstrated extreme variability in her skills. Student was again evaluated by School Psychologist BLANK in November and December of 2014. The Report of that evaluation (Exhibit JJ) indicates that the examiner again employed the WISC-IV. The results of that evaluation disclosed that Student displayed a Verbal Comprehension score of BLANK; a Visual Perception score of BLANK; a Working Memory score of BLANK ;and a Processing Speed score of BL; resulting in a Full Scale IQ of BLANK, placing Student in the Range.

DISCUSSION

In this Due Process proceeding, Parents are limited to those issues which are stated in their Due Process Complaint. Pursuant to the provisions of Commissioner’s

Regulations:

“The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial hearing that were not raised in the notice filed under subdivision (i) of this section, unless the other party agrees otherwise.”

8 NYCRR 200.5(j)(1)(ii))

The 2013-2014 School Year

Consistent with my ruling that Parents are precluded by the provisions of the Statute of Limitation contained in both Federal and New York State Regulations (See 43 C.F.R. §300.507(A)(2)) and 8 NYCRR 200.5(j)(1)(i)) from raising any issue that predates December 22, 2013, only issues that allege facts or complaints arising thereafter are properly considered in this proceeding. However, I find that Parent’s Due Process Complaint contains no allegations against District’s programs or implementation, but only recitals of events addressing the 2013-2014 school year. The Complaint (Exhibit A) recites that the Parents had obtained an BLANK Evaluation (Exhibit N) that confirmed that Student had certain described deficits and recommended an individual FM system. The Complaint further recites that Parent presented such evaluation to District’s C.S.E. which, at Student’s Annual Review on May 8, 2014, made certain recommendations for the 2014-2015 school year that varied from the program then in place and recommended a evaluation. The Complaint continues that such evaluation was conducted, the results of which recommended Therapy. The Due Process Complaint also recites that Parents requested the FM unit from District and believed that the C.S.E. was going to recommend and provide the unit. Parents also allege that they believed that the District was going to recommend a small reading group for Student (Exhibit A). However, while such discussions did, indeed, occur during the 2013- 2014 school year, all such allegations relate to the program developed for the 2014-2015 school year by District’s C.S.E., leaving no issue related to the 2013-2014 school year for review.

One last point. Parents, in their Due Process Complaint, made the global assertion that District failed to evaluate Student in all areas of suspected disability, noting that, despite evidence of language problems since preschool, District failed to recommend appropriate services until 2014. Inasmuch as the period from December 22, 2013 until the inclusion of recommended services in Student’s I.E.P. in June of 2014 is within the statutory period, I will address such allegation briefly. While Parents note that services were not recommended until 2014, District had, in fact, conducted a Evaluation of Student on July 10, 2012, the results of which (Exhibit L) found that therapy services were not recommended. I find that the allegation that District failed to evaluate in all areas of suspected disability for such limited period without merit.

A FREE, APPROPRIATE PUBLIC EDUCATION

Parents, in their Due Process Complaint Notice (Exhibit A), assert that District failed to provide Student with a free, appropriate public education (FAPE) during the 2014-2105 and 2015-2016 school years. However, exactly what criterion is to be employed to determine if – or whether – a free, appropriate public education has been provided?

It has often been stated that a FAPE is offered to a student when a board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). The mandate that a Board comply with all procedural requirements set forth in IDEA had ofttimes resulted in courts and reviewing officers concluding the negative – that is, that if all procedural requirements were not fully complied with, it necessarily had to follow that a free, appropriate public education had not been provided. However, Courts and reviewing officers, as well as the United States Congress itself, began to be concerned with such drastic outcome, when programs otherwise appeared to be providing educational benefit.. Thus, it developed that Courts considering that issue ruled that, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at *4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Such determinations eventully resulted in the United States Congress amending the provisions of the IDEA, so as to now require that if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the Parent’s' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii];

There have been other judicial, quasi-judicial or regulatory determinations that provide beneficial guidance to a review of how it is to be determined whether a free, appropriate public education has been offered. Such guidance has been extrapolated from numerous rulings that, of necessity, are particular to the issues therein presented. It has been stated that the student's recommended program must be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.^[1][cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [^[2]d Cir. Oct. 9, 2008]; Gagliardo v. BLANK Cent. Sch. Dist., 489 F.^[3]d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it offered the student a FAPE (Burlington, 471 U.S. at 370- 71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent’s" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

It is this last requirement – that the IEP must be "reasonably calculated to provide some ‘meaningful' benefit" - that will guide my review in this matter.

The 2014-2015 School Year

As indicated above, District’s C.S.E. convened on May 8, 2014, when Student was completing her Fourth Grade and about to transition to District’s BLANK Elementary School, to prepare Student’s special education program for the 2014-2015 school year.

The Committee consisted of School Psychologist BLANK, who also served as Chairperson; General Education TeacherBLANK; Special Education Teacher B. LANK;

Therapist BLANK BLANK; and Parents. Therapist BLANK, who had completed the BLANK BLANK Evaluation (Exhibit N) for Parents, participated by telephone (Exhibit E). The I.E.P. created at that meeting noted that Student “presents with weak academic skills and is a high needs student who has difficulty maintaining her focus and attention” (Exhibit E). One of the documents before the Committee was the Psychological Report of School Psychologist BLANK (Exhibit K). Dr. BLANK noted that Student received multiple levels of intervention across all academic areas during her First and Second Grades, but that Student had increasing difficulties and had not made the progress that would be expected give the intensive level of interventions Student received, both in school and the community. Clearly expressing concern, the Report notes that “Despite the most intensive levels of support, [Student] has failed to make progress”. Yet, I note that the Committee had much informational documentation that was dated in 2012 or before, including, as listed in the I.E.P., the Wechsler Intelligence Scale for Children, - Fourth Edition, conducted in March of 2012 (Exhibit K) and the results of the CELF, completed in July of 2012 (Exhibit L). While I am aware of the requirement of triennial testing mandates, it would appear that, especially for the early grades, more current assessment information would be helpful. From a reading of the levels of performance appearing in the I.E.P., it appears that the Committee was relying on summaries provided by staff as to how Student was progressing. Those reports, in the main, were positive, such as, in Reading: “[Student] has shown tremendous growth in her reading abilities throughout her fourth grade school year”. Yet, the Committee found it appropriate to change Student’s program to a more restrictive setting. During Student’s 2013-2014 school year, Student’s program mandated that Student receive her special education program in a class having a staffing ratio of 12:1+1 for Reading and Math, while providing Student with her other core subjects of Science and Social Studies in an Integrated Co-Teaching (ICT) class (Exhibit D). On May 8, 2014, presumably because Student was not making appropriate progress, Committee recommended that Student receive all of her core subjects in a 12:1+1 class setting. I further note that the Committee noted, under the Heading of “Academic Developmental and Functional Needs of the Student” that: “In order to support her learning, [Student] needs a multi-sensory approach to learning”. a recommendation that had also been in Student’s I.E.P. for the prior school year (Exhibit D). Yet I find that nowhere in the recommendations of the Committee is any provision for such.

As previously noted, I will find a proffered program appropriate if it offers a program that is reasonably calculated to provide some meaningful benefit to Student. As noted in Dr.BLANK’s evaluation summary, Student has been afforded the most intensive levels of support, but has failed to make progress. Lessening the number of students in Student’s classes, and thus providing Student with the opportunity for more intense, direct instruction, was reasonably so calculated.

It is my finding and determination that District, with the establishment of the program that would be offered to Student during the 2014-2015 school year, has satisfied its burden of establishing that it offered to Student a free, appropriate public education for the 2014-2015 school year.

Prior to the commencement of the September 2014 term, Student was provided the opportunity by District to attend a summer camp for BLANKing that was offered as part of its AIS (Academic Intervention Services) program. Such was not, however, a part of Student’s special education program. The camp was directed by Reading Specialist BLANK, who employed an BLANK BLANK methodology in that program. During the 2014-2015 school year, District provided to Student all of the services mandated by the provisions of her I.E.P. (Exhibit E). Indeed, I am impressed by the enthusiasm with which the faculty at the school worked with Student. Student was given mandated triennial evaluations in November and December of 2014, including a BLANK Re-evaluation by School Psychologis BLANK. Dr. utilized the WISC-IV and the WIAT-III, among other testing devices. Her Report (Exhibit JJ) showed variations in results when compared to Dr.BLANK’s Report of 2012 (Exhibit K), but not to a significant degree. The C.S.E. reconvened on January 23, 2015 and reviewed the results of the Psycho-educational evaluation, as well as a Therapy Re-evaluation. The Committee determined to make no changes in Student’s instructional program (Exhibit G).

The 2015-2016 School Year

Parents, in their Due Process Complaint (Exhibit A), alleged that District failed to offer Student a free, appropriate public education for the 2015-2016 school year and, as a result, Parents unilaterally placed Student at BLANK blank School, located in Greenwich, Connecticut for the 2015-2016 school year. Parents seek, in this proceeding, an Order requiring District to reimburse Parents or directly pay BLANK blank School for Student’s attendance at such facility during the 2015-2016 school year

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s Parents, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and; (3) equitable considerations support the Parent’s claim. Such prerequisites were established by the United States Supreme Court when considering claims for reimbursement brought by parents who had unilaterally placed their disabled child in a private facility. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, it was later held by the same Court that the fact that the facility selected by the parents to provide special education services to the child had not been approved as a school for children with disabilities by the state agency would not be dispositive of a parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). The Court noted that parents who unilaterally decide to place their child do so at their own financial risk.

Burden of Proof

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, a parent’s right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404). Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied. If the unilaterally-selected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parents.

As indicated, it is the burden of District to establish, by a preponderance of evidence, that it offered Student a free, appropriate public education. I have set out earlier in this Decision the factors that are necessarily considered in making such determination - that is, that it offered Student a program that was reasonably calculated to provide Student with meaningful educational benefit.

District’s Committee on Special Education convened on April 30, 2015 to conduct an Annual Review and develop Student’s special education program for the 2015-2016 school year. It was difficult to ascertain with precision who attended the meeting. School Psychologist BLANK testified that she had chaired the meeting, and could recall that BLANK BLANK, BLANK BLANK, BLANK BLANK and BLANK BLANK were in attendance (T.R.1876) and that Dr. BLANK attended by telephone (T.R.1877). Although not identified by School Psychologist BLANK, Reading Specialist BLANK testified that she had participated in that meeting (T.R.797-798). School BLANK BLANK not only testified that she had attended the April 30, 2015 meeting, but that BLANK had also participated at that meeting (T.R.1026). Memories of that meeting are not very sharp, as DrBLANK testified that Dr. BLANK “spoke for quite a while “ (T.T.1877), while BLANK BLANK testified that “He was not on the phone for an extended time; it was very short” (T.T.799). Parent estimated the time Dr. BLANK was on the telephone as forty-five minutes (T.R.1943). School BLANK BLANK estimated the time as ten to fifteen minutes (T.R.1028). School Psychologist BLANK explained that no documents – apparently not even Dr. BLANK’S Report, which had been made available prior to the meeting (T.R.1026) - were reviewed at the meeting as it was an Annual Review Meeting (T.R.1878).

Dr.BLANK had been retained by Parents to conduct a BLANK BLANK of Student when, according to Parent, she saw that Student was making no progress (T..R.1940). Dr. BLANK conducted a Evaluation of Student on a number of days in March of 2015. His Report on that evaluation (Exhibit Q) reviewed a number of prior evaluations and assessment scores related to Student. It was his conclusion that Student was not progressing. Dr. BLANK reported that his review indicated that Student had a and could be classified as either (Exhibit Q). Dr. BLANK also noted that Student’s BLANK BLANK Disorder was significant enough that it was contributing to Student’s poor academic progress (Exhibit Q). I found Dr. BLANK’s testimony forthright and fair. Indeed, much of it comported with the findings and conclusions made by Dr. BLANK in her Report (Exhibit JJ). While not espousing any particular methodology for Student, Dr. BLANK testified that Student required a multi-sensory researched -based methodology (T.R. 1371). Dr. BLANK noted in his Report that he would consider placing Student in a school that was specifically designed for children with a BLANK BLANK Disability ‘such as Windward, Kildonan and BLANK blank Schools” (Exhibit Q). While the meeting lasted “quite a while” (T.R.1878), it didn’t finish – so there was a second meeting and no minutes were generated from the first meeting (T.R. 1878).

The Committee reconvened on May 22, 2015. Attending at this meeting were M.Blank, who served as Chair; JBLANK, who served as School BLANK ;BLANK, who served as BLANK BLANK Teacher;BLANK, as BLANK BLANK; BLANK BLANK Student’s BLANK Teacher who served as BLANK BLANK Teacher; BLANK, who served as BLANK BLANK Teacher;BLANK, BLANK BLANK Therapist;BLANK, BLANK BLANK l Therapist;BLANK, Social Worker; and BLANK; BLANK BLANK

Therapist; as well as Parents and Parent Advocate BLANK(Exhibit H). Dr. BLANK did not attend that meeting. I note from a review if the I.E.P. prepared by the Committee on that date (Exhibit H) that Dr. BLANK’s BLANKEvaluation is not listed among the Evaluations /Reports purported reviewed at that meeting. However. school Psychologist Wallace testified at length regarding the discussions had regarding the BLANK Report (T.R.1028-1029).

The I.E.P. generated at that meeting reviewed Dr. BLANK’s BLANK BLANK Evaluation, which described Student’s academic skills as well level; that basic academic skills required a great deal of effort that is hard for Student to sustain; and that higher tasks were extremely challenging. It was also noted that Student’s self-confidence had increased and that her note taking skills had improved.

The Committee recommended that Student receive her special education program for all core subjects, as well as BLANK and a BLANK Class, in a class setting having a staffing ratio of 12:1+1, together with the Related Services of BLANK BLANK Therapy, twice weekly, forty-two minutes per session, in a group of small group of five; BLANK BLANK Therapy twice weekly, forty-two minutes per session, in a small group of five; BLANK BLANK Therapy, once weekly, forty-two minutes per session, in a smaller group of two BLANK once weekly, forty-two minutes per session, in a small group of five; and BLANK BLANK Therapy, once weekly, thirty minutes per session, in a small group of five over the summer (Exhibit H). It is notable that such program is virtually identical to that offered to Student for the 2014-2015 school year, with the exception that the Related Service Therapy sessions have been increased from thirty minutes per session to forty-two minutes per session – which appears to have more relevancy to the schedules of the District’s Middle School program than any intent to more seriously address Student’s deficits in those areas.

While I have deemed District’s I.E.P. that District’s Committee prepared for Student’s 2014-2015 school year was reasonable calculated to provide Student with meaningful educational benefit, is my finding that such calculation was not realized. Findings made by Dr. BLANK and Dr. BLANK established that Student was making little or no progress in her educational program. The information contained in the I.E.P. developed at that meeting as to certain areas of “progress” were, I find, insufficient to establish any “meaningful” progress or educational benefit. While Student’s program for the 2015-2016 school year had continued the finding that Student required multisensory instruction in order to make progress, none had been provided pursuant to Student’s I.E.P. during that year.

It is my finding and determination that District failed to offer Student a program that was reasonably calculated to offer meaningful educational benefit for the 2015-2016 school year. Therefore, I find that District has failed to sustain its burden of proving that it offered Student a free, appropriate public education for the 2015-2016 school year.

Having made such determination, it is necessary that I review the appropriateness of Parents’ unilateral placement of Student at BLANK BLANK School for the 2015-2016 school year. Witness BLANK identified herself as a Consultant in Education. District counsel conceded that Ms. BLANK is an expert in literacy remediation (TR.1184). Witness BLANK testified that she is a Parent Advocate and also an Admissions Assistant at the BLANK BLANK School (T.R.1178). I note that Witness BLANK works one day per week at the BLANK BLANK School and four days per week on her own Educational

Consulting business (T.R.1454). Witness BLANK stated that part of her employment at the BLANK BLANK School is to testify on behalf of parents (T.R.1457). Ms. BLANK described the BLANK BLANK School as a private school for children with language-based learning difficulties (T.R.1186). It has a total student population of around two hundred fifty students (T.R.1188) and employs a multi-sensory methodology, utilizing a variety of programs, but all with Orton-Gillingham-based underpinnings (T.R.1185). Witness BLANK testified that each of the teachers at BLANK blank School is certified in their area and many beyond such (T.R.1191). All teachers receive additional training at the School each Friday. Ms. BLANK testified that, by using the Orton-Gillingham approach and integrating technology and structure into the program, the School is able to ameliorate the language-based challenges experienced by the School’s population (T.R.1207). Dr. BLANK testified that he was familiar with the programs at the BLANK blank School, as he had been the head of a diagnostic clinic associated with the School for ten years (T.R.l369), describing it as offering a language intensive program not wedded to a specific methodology, and with very small student-to-teacher ratio (T.R.1374). I find a further description of the facilities and programs offered at BLANK blank School to be unnecessary.

Parents were concerned with what they perceived as a total lack of progress by Student in her program at BLANK Elementary School during the 2014-2015 school year and had been advised by Dr. BLANK to consider placing Student at a facility specifically designed for children with a BLANK BLANK Disability. BLANK blank School is one such facility that offers such program. I will impose upon Parents the same criterion as was imposed upon District – that is, was placement at the BLANK blank School reasonably calculated to provide Student with meaningful educational benefit. The decision to place Student at such facility obviously had to be made before knowing how Student would fare at that placement.

It is my finding and determination that such unilateral placement of Student at the BLANK blank School was reasonably calculated to provide Student with meaningful educational benefit.

As I found District’s program as created for District for Student’s 2014-2015 school year was appropriate, but that such proved to be, by the conclusion of that school year, insufficient, so too do I find that Student made but little progress while at BLANK blank School during the 2015-2016 school year. The re-evaluation conducted by Dr. BLANK in April of 2016 (Exhibit EE) determined that Student had made no progress whatsoever in mathematics and writing and but little progress in other areas. Such information could well render it inappropriate for Parents to consider further placement of Student at BLANK blank School – but in no way lessens their entitlement to my finding that what Parents did on June 1, 2015 was reasonably calculated to provide Student with a meaningful educational benefit.

It is therefore, my finding and determination that Parents have successfully borne the burden of establishing the appropriateness of their placement of Student at the BLANK blank School for the 2015-2016 school year.

Having made such determination, it is necessary for me to determine whether equitable considerations favor an award of tuition reimbursement/direct payment for such unilateral decision. It is my finding that Parents have cooperated fully with the District and with the Committee on Special Education is seeking an appropriate public education for Student. Parents were active in Student’s school life and often discussed their concerns with staff. Parents attended all Committee meetings and secured private evaluations that were shared with the Committee. I find nothing that would preclude any denial or reduction of reimbursement to Parents based on equitable considerations.

Parents entered into a Contract with the BLANK blank School, dated July 1, 2015, committing them to pay the sum of Sixty-Four Thousand Four Hundred Fifty ($64,500.00) Dollars for Student to attend BLANK blank School for the 2015-2016 school year (Exhibit U). I find such amount appropriate and reasonable. Parent testified that Parents have paid the sum of Twenty-Six Thousand Four Hundred Forty-Five ($26,445.00) Dollars to BLANK blank School but that a balance of Thirty-Eight Thousand Five (38,005.00) Dollars remains due to the BLANK blank School. Parents are, therefore, entitled to be reimbursed for monies paid by them for Student’s attendance at the BLANK blank School for the 2015-2016 school year in the amount of Twenty-Six Thousand Four Hundred Forty-Five ($26,445.00) Dollars. BLANK blank School is entitled to be paid the remaining balance of Thirty-Eight Thousand Five (38,005.00) Dollars

Some matters raised by Parents in their Due Process Complaint have not been yet addressed in this Decision, but require little comment. I have found that allegations that District did not respond appropriately to allegations of bullying of Student to be totally without merit. The incidents that allegedly occurred were quite properly and quite quickly addressed by District staff and never required any review by the Committee. Even had I found that the alleged incidents occurred, there was never any proof that such had any impact upon Student’s educational program.

Parents also sought an award of many hours of instruction by the BLANK BLANK for alleged failure of District to provide appropriate services and instruction to Student. I have made no finding that District ever failed to provide required services. Indeed, as noted by School Psychologist (Exhibit K), District has provided Student with most intensive services and instruction to Student, and yet Student failed to make progress. District provided even more services during the years following Dr.

comment, and Student still failed to progress. Even when placed at a facility especially designed for students with BLANK BLANK Disabilities, Student showed but little progress. There is no doubt in my mind that, even with more hours of instruction than BLANK BLANK Center proposed, little, if any, progress would have been realized. It would appear that some of the deficits about which Parents had been advised by the birth-mother’s pediatrician and other specialists at the time of their adoption of Student are not capable of remediation.

ORDER

Based upon the above review, it is HEREBY ORDERED that District pay to Parents, as and for reimbursement of monies paid by them to the BLANK blank School for Student’s attendance at that facility during the 2015-2016 school year, the sum of Twenty-Six Thousand Four Hundred Forty-Five ($26,445.00) Dollars; and it is

FURTHER ORDERED that District pay to BLANK blank School, as and for unpaid tuition costs associated with Student’s attendance at that facility for the 2015-2016 school year, the sum of Thirty-Eight Thousand Five (38,005.00) Dollars; and it is FURTHER ORDERED that all other challenges to District’s program and services to Student from December 22, 2013 to this date be, and the same hereby are DISMISSED

Dated: Delmar New York

___________________________ July 27, 2016 JAMES P. WALSH

The above constitutes my decision that in accordance with the provisions of Article 89 of the New York State Education Law.

The BLANK BLANK hool District and the Parents of BLANK BLANK have the right to obtain a review of this Decision by the State Review Officer of the State Education Department of the State of New York, in accordance with the provisions of Part 200.5(k) of the Regulation of the Commissioner of Education of the State of New York.

EXHIBITS RECEIVED IN EVIDENCE ON FEBRUARY 12, 2016

No # of pages Description Offered By

A 10 Parents’ Due Process Complaint, dated 12-15-16 Parents B 9 Student’s I.E.P. as developed by District’s C.S.E. Parents on 5-11-12 C 10 Student’s I.E.P. as developed by District’s C.S.E. Parents on 10-16-12 D 10 Student’s I.E.P. as developed by District’s C.S.E. Parents on 3-14-13 E 14 Student’s I.E.P. as developed by District’s C.S.E. Parents on 6-12-14 F 12 Student’s I.E.P. as developed by District’s C.S.E. Parents on 5-8-14 G 12 Student’s I.E.P. as developed by District’s C.S.E. Parents on 1-23-15 H 17 Student’s I.E.P. as developed by District’s C.S.E. Parents on 5-22-15 I 2 Behavioral Screening by BLANK, Psy.D., dated Parents Feb-2010 J 17 Consultation BLANK BLANK, Parents

Ph.D., dated 6-28-10 and 7-12-10 K 7 Individual Psychological Evaluation Report by Parents

BLANK, Psy.D, dated 3-27-12 and 3-29-12

L 7 Evaluation Report by R. Parents BLANK, dated 7-10-12 M 3 Therapy Evaluation Report, dated Parent 3-11-13, by BLANK, N 16 Evaluation Report, Parents dated 3-18-14, BLANK BLANK, MA, and BLANK BLANK, O 5 Evaluation Report, dated Parents

5-23-14, by BLANK BLANK, MA P 2 Re-evaluation Report by Parents

BLANK BLANK, , dated 12-15-14 and 1-5-15 Q 13 Evaluation Report by N. Parents

BLANK, Ph.D., dated 3-25-15 U 2 Cover Page from Parents to Admissions Office of Parent

BLANK blank School (1); Enrollment Agreement of Student at BLANK blank School dated 6-1-15 (1) V 2 Affidavit of BLANK of BLANK blanks School, Parents

Sworn to on 11-21-16 regarding tuition payments by Parents W1 Student’s Attendance Report from BLANK blank Parents

School for 2015-0216 school year X 1 Student’s Weekly Schedule – Winter 2015 Parents AA 3 Resume of BLANK BLANK BLANK, Ph.D. Parents BB 2 Resume of BLANK BLANK – Literacy Remediation Parent Expert

EXHIBITS RECEIVED IN EVIDENCE ON APRIL 13, 2016

No # of pages Description Offered By

EXHIBITS RECEIVED IN EVIDENCE ON APRIL 21, 2016

No # of pages Description Offered By

DD 9 Academic Functioning –WIAT III for Parents Student – dated 3-20-12 EE 10 Updated Confidential Parents

Evaluation Report by N. BLANK, Ph.D., dated 4-8-16 JJ 20 Psycho-Educational Re-evaluation Report Parents dated 12-19-14, by H. BLANK, Ph.D. X-2 1 BLANK blanks School Spring Schedule Parents

EXHIBITS RECEIVED IN EVIDENCE ON APRIL 20, 2016

No # of pages Description Offered By

GG 5 Cover Letter to Parents, dated 6-23-14 (1); Parents

Report on Student’s Progress toward Goals (4) HH 5 Student’s Fifth Grade Progress Profile Parents II 1 Learning A-Z Correlation Chart Parents

EXHIBITS RECEIVED IN EVIDENCE ON MAY 13, 2016

No # of pages Description Offered By FF 76 BLANK BLANK Center Evaluation Parents and Testing Materials, dated 4-13-16

KK 17 Results of Beery -Buktenica Test of Visual- Parents (double-sided) Motor Integration of Student, dated 3-4-13

LL: 14 Results of Beery -Buktenica Test of Visual- Parents

(double-sided) Motor Integration of Student, dated 12-15-14

EXHIBITS RECEIVED IN EVIDENCE ON MAY 23, 2016

No # of pages Description Offered By CC 2 Resume of Kimberly Zallo-Sullivan Parents (double-sided) MM 1 Results of GORT-5 and Slosson Oral Parents

Reading Test of Student, dated May 2016 NN 2 Report, dated June, Parents

2016 by , M.S.,

EXHIBITS RECEIVED IN EVIDENCE ON JUNE 2, 2016

No # of pages Description Offered By

OO 1 Student’s Attendance Report from BLANK Parents blank School for the 2015-2016 school year PP 3 Copies of checks, of various dates, to Parents BLANK blank School QQ 2 Copy of pages 1 and 2 of Parents’ 2015 Parents

U.S. Income Tax Return SS 2 Update, dated 3-11-15, by Parents H. BLANK, Ph.D.

EXHIBITS RECEIVED IN EVIDENCE ON JUNE 8, 2016

No # of pages Description Offered By

TT 9 Parents Code of Ethics

OTHER EXHIBITS RECEIVED IN EVIDENCE

I 9 Copy of Running Email between I.H.O. Walsh and

Attorneys and – Period from 1-5-16 through 2-1-16 II 21 Parents’ Statute of Limitations Brief IHO III 5 District’s Letter of Memorandum IHO IV 19 Interim Order Determining Statute of Limitations IHO

Motion, dated 3-14-16 V 1 Subpoena Issued to Dr. BLANK, dated 4-20-16 IHO VI 30 Parents’ Closing Brief by Attorney K. IHO VII 29 District’s Memorandum, dated 7-11-16 IHO

Footnotes

[1] 4 District’s Response to Complaint, dated 1-26-16, Parents by Attorney

[2] 6 , dated 4-17-12, by BLANK , Parents LCSW EXHIBITS RECEIVED IN EVIDENCE ON APRIL 12, 2016 No # of pages Description Offered By R 2 Letter from Parents to BLANK, dated 8-5-15 Parents S 1 Letter to Parents from BLANK, dated 8-14-15 Parents T 15 Progress (Advisory) Report from BLANK Parents BLANK School – December 2015 31

[3] 7 Cover Letter to Parents, dated 6-18-15 (1); District Report on Student’s Progress toward Goals (6) 32