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UNION FREE SCHOOL DISTRICT
In the Matter of the Application of
., a child with a Disability, by his parents, ., for a Due Process Impartial Hearing,
Petitioners,
-and-
Union Free Schools
Respondent.
FINDINGS OF FACT AND DECISION
Date of Birth: November 8, 2005
NYS CASE Identifier Number:
Dates of Hearing: October 27, 2015
October 28, 2015
November 10, 2015
December 8, 2015
December 9, 2015
January 8, 2016
February 3, 2016
February 4, 2016
March 2, 2016
April 18, 2016
June 17, 2016
August 17, 2016
August 23, 2016
Record Close Date: August 23, 2016
Hearing Officer: Linda Agoston, Esq.
Linda Agoston
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 27, 2015
Attorney — Parents
Mother — Parents
Father — Parents
Second Grade Teacher — District
Attorney — District
Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 28, 2015
Attorney — Parents
Father — Parents
Mother — Parents
Special Education Teacher — District
Therapist — District
Attorney — District
Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2015
Attorney — Parents
Father — Parents
Mother — Parents
Attorney — District
Therapist — District
Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 8, 2015
Attorney — Parents
Father — Parents
Attorney — District
Executive Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 8, 2016
Attorney — Parents
Father — Parents
via Psychologist — Parents
telephone, via Windward CSE Liaison
skype
Attorney — District
Executive Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 3, 2016
Attorney — Parents
Father — Parents
via Windward CSE Liaison — Parents
skype
Attorney — District
Executive Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 4, 2016
Attorney — Parents
Father Mother — Parents
Attorney — District
Executive Director of Pupil Services — District
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 2, 2016
Attorney — Parents
via Psychologist — Parents
telephone
Attorney — District
Executive Director of Pupil Services — District
Special Education Teacher — District
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 18, 2016
via Attorney — Parents
telephone
via Attorney — District
telephone
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 17, 2016
via Attorney — Parents
telephone
via Attorney — District
telephone
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 17 & 23, 2016
via Attorney — Parents
telephone
via Attorney — District
telephone
The matter of . (hereinafter student X) came on for hearing before me on October 27, 2015. The hearing was convened at the request of the parents through an attorney by letter dated April 26, 2015 (Exh. 5) who amended the complaint on May 26, 2015 (Exh. 9) and submitted the second amended complaint on December 1, 2015 (Exh. 69). Hearings were held in person on October 27, 2015, October 28, 2015, November 10, 2015, December 8 2015; December 9, 2015; January 8, 2016; February 3, 2016; February 4, 2016 and March 2, 2016 and by telephone on April 18, 2016, June 17, 2016, August 17, 2016 and August 23. The parties moved to extend the compliance dates during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than the consequences of any delay in the resolution of the matter. Accordingly, the requests for extensions of the compliance dates were granted (Exhs. II-VIIII;X;XVIIXVIIII;Tr.1133;1893;2659). The compliance date was extended as a result of the request for additional hearing dates and for the submission of briefs. The current record close date is August 23, 2016 and the decision due date is September 6, 2016. Appended to the record are lists of persons in attendance and of documents submitted into evidence.
The hearing was requested by the parents of student X to challenge the June 5, 2014 (Exh. 11) review and recommendation of the Committee on Special Education ("CSE") to classify student X, residing in the territorial jurisdiction of School District ("District"), and the June 1, 2015 (Exh. 61) Individualized Education Program ("IEP") and request the following: (1) an order finding that the District failed to provide a free and appropriate public education ("FAPE") during the 2014-2015 and 2015-2016 school years; (2) an order finding that the School (" "), for student X was appropriate and that the equities favor the parents and (3) an order that the District fund the unilateral placement at the for the 2014-2015 and 20152016 school years. is a non-State-approved private school for learning disabled students located in White Plains, New York for kindergarten through ninth grade. The parents brought the hearing seeking direct funding for the 2014-2015 in the amount of $50,250 and $51,500.00 for the 2015-2016 school year (Exh. 67 at 8).
BACKGROUND
Student X is 10 years old and currently attending and was born on November 8, 2005. He experienced educational difficulties throughout his educational career and was placed in a self-contained class for 2 years in Kindergarten and first grade, but was mainstreamed in second grade based on his intelligence and inquisitiveness (Tr.44). He is diagnosed with (Exh. 13 at 1).
For the 2012-2013 year on April 3, 2012, the District’s CSE classified student X with an (" ") and recommended that for first grade he be placed in a 12-month program in a special class in the District at the Street school, ( ") with a staffing ratio of 8:1+1 for 10 months and a special class with a staffing ratio of 6:1+1 for summer and individual Therapy (" ") twice a week for 30 minutes (Exh. 13 at 1).
The IEP recommended related services of individual for 30 minutes twice in a 6-day cycle; for 30 minutes in a 6-day cycle in a group of 2; individual
(" ") for 30 minutes in a 6-day cycle, for 30 minutes once in a 6-day cycle in a group of 5; for 30 minutes in a 6-day cycle in a group of 5 and individual ( ") for 30 minutes twice a 6-day cycle and recommended management needs of "a token board economy system to motivate him to complete his work and participate in group settings, and monitor his behaviors"( Exh. 13 at 5) for 10 months (Exh. 13 at 1).
The IEP indicated that student X required "support to follow classroom routines, focus and stay on tasks, retain academic skills in the classroom and to use expressive language consistently" (Exh. 13 at 4).
The IEP indicated that the parents of student X "expressed concern about the student's slow progress and socialization skills" (Id.), and that student X had low "muscle tone in the trunk and upper extremities"(Id.).
The District conducted an evaluation on various dates on January, February and April 2013, and the evaluator used the Bruinink-Osteretsky Test of Motor Proficiency-Second Edition ("BOT-2"), a test of fine motor skills and the Test of Visual Perceptual Skills ("TVPS"), a test of visual motor integration (Exh 30 at 1). The fine motor tests indicated that student X was delayed in his hand motor development (Exh. 30 at 2). The evaluator noted that student X was in first grade and was mainstreamed for math and had received as a preschooler (Id.). The evaluator found student X had scores in fine motor precision and fine motor integration and scores in manual coordination (Exh. 30 at 4). The evaluator noted that the TVPS score was in the range and visual perception was a strength (Exh. 30 at 6). The evaluator noted the BOT-2 score yielded scores in bilateral coordination and body coordination and in manual coordination (Exh. 30 at 4). The evaluation indicated that student X was diagnosed with convergence insufficiency and that was prescribed prism glasses to assist in his convergence (Exh. 30 at 6). The evaluator reported that student X was able to write all upper and low case print letters, but he "requires more time to think about how the letter looks" (Id.), and that student X displayed "decreased fluidity in his handwriting when generating sentences"(Exh. 30 at 7).
On February 11, 2013, an evaluation was conducted by the District evaluator who found that student X was 7 years and 3 months and had "worn orthotics in the past for toe walking" (Exh. 21 at 1). The evaluator used the BOT-2 and found scores in bilateral coordination and body coordination and scores in balance, running speed and strength (Exh. 21 at 3) and tested student X's gross motor skills and found that student X had an " of in locomotor area and "(Id.).
The District conducted a in December 13, 2012, and February 13, 2013, when student X was 7 years and 1 month(Exh. 22 at 1). The measured student X’s receptive and expressive language and reported skills (Exh. 22 at 2), and recommended that CSE meet to decide whether student X continued to be eligible for special education services (Exh. 22 at 4).
On March 8, 2013, a visual perceptual examination was conducted on student X and student X was diagnosed with 378.83, Deficiencies of Smooth Pursuit Movements 379.58, and 368.16 (Exh. 17 at 1). The evaluator found student X "suffered from convergence insufficiency and deficiencies of small pursuit movements expend excess energy in order to locate visual information; no energy is left over for encoding and decoding"(Id.).
On March 4 and 5, 2013, an Educational Re-Evaluation was conducted by the first grade special education teacher on student X when he was 8 years and 4 months. The special educational teacher noted student X received and as well as support from the self-contained program for guided reading, writing and phonics in modified curriculum, but was mainstreamed for math, social studies, science and specials with an assistant teacher to "accompany him to mainstream classes" (Exh. 18 at 1). The special education teacher noted that student X had a weakness in "word reading and oral reading fluency" and that if "another student entered the room, which was otherwise empty, he would become distracted and stop working"(Exh. 18 at 4).
On April 5, 2013, the District assessed student X's academic levels and used the Wechsler Individual Achievement Test-Third Edition ("WIAT-III") and reported that student X's a scatter of achievement among the subtests: grade equivalent ("GE") in listening comprehension; GE in reading comprehension score; GE in reading skills; GE in math problem solving; GE in alphabet writing fluency; GE in oral expression; GE in spelling; GE in math fluency in addition and GE in word reading and in oral reading fluency (Exh. 19 at 1).
On May 13, 2013, the District conducted a psychological evaluation on student X by , Psy.D. when student X was 7 years and 6 months attending a general education program in in the District (Exh. 16). Dr. determined that student X functioned in the range of intellectual functioning with a full scale score of on the Wechsler Intelligence Scale for Children, Forth Edition ("WISC-IV"). She reported the following scores: verbal comprehension score was , in the percentile, placing him in the of functioning; perceptual reasoning score was in the percentile, in the ; working memory score was in percentile, in the range and processing speed score was , in the percentile the range (Exh. 16 at 2). Dr. noted that student X "spoke a great deal, but his speech was sometimes difficult to understand, both due to articulation issues and apparent difficulty in organizing his thoughts. Pencil and paper tasks seemed difficult for him, particularly coordinating the pencil and paper in addition to the other demands of the task"(Id.).
For the 2013-2014 year on May 29, 2013, the District's CSE classified student X with and recommended that for second grade he be placed in a 12-month program in a special class in at in the District with a staffing ratio of 12:1+1 for 10 months in Language Arts once daily for a period of 1 hour and 20 minutes and a special class in the staffing ratio of 6:1+1 for 3 hours and 20 minutes for summer and individual for 30 minutes twice a week for the summer (Exh. 12 at1).
The IEP recommended related services of individual for 30 minutes twice in a 6-day cycle; for 30 minutes in a 6-day cycle in a group in 2; and resource room once daily for 40 minutes (Id.) and that student X "does get easily distracted when there is a lot of noise and requires a classroom with minimal distractions" (Exh. 12 at 5) The IEP again noted that the parent "expressed concerns about the student's slow progress with socialization skills (Id.). The IEP indicated under management needs that student X "required breaks, when working on a task for a longer period of time. His level of focus needs to be monitored, as his attention can be fleeting, especially when placed in an environment with a lot of visual and auditory distractions"(Exh. 12 at 6). The IEP indicated that "fine and gross delays, retention of academic skills and speech and language difficulty impacts his ability to participate in all age appropriate activities "(Id.).
An assistive technology ("AT") consultation recommendations/evaluation was conducted by the for the District on May 12, 2014, that indicated that student X was referred for AT consultation and written evaluation to "support his ability to perform reading and writing tasks more successfully and independently"(Exh. 20 at 1). The evaluator noted that student X was on grade level in reading comprehension, but his reading level was "if not provided with controlled text... at the end of first grade"(Exh. 20 at 2). The evaluator noted that "when student X was "provided with controlled text in the Merrill reading program, text is at the end of first grade" (Id.). The evaluator found that student X was "unable to read the book he borrowed from the library and / or review the work he already started in a graphic organizer"(Id.). The evaluator related that the "handwritten graphic organizers was partially copied by him but primarily was scribed by a teacher's assistant"( Id.). The evaluator noted that student X's handwriting was "influenced by his difficulties in spelling. Without supports, his spelling attempts are not sufficiently close enough to the actual spelling for him or others to accurately read. This is also true when typing. Built-in spelling supports are also not sufficiently helpful" (Id.). The evaluator noted that student X's "use of voice recognition supports during have been intermittently successful. One difficulty has been that he cannot read the text he dictates to determine its accuracy" (Id.). The evaluator noted that student X's "dictation accuracy is limited by decreased articulation" (Exh. 20 at 3). The evaluator found that with the use of Claro Read in conjunction with Dragon Naturally Speaking and a USB, and a noise cancelling microphone for student X to dictate with moderate support of the several sentences(Id.). The evaluator recommended Kurzeil 3000, Dragon Naturally Speaking, Word Q and typing practice and "a consistent teacher's aide in the classroom so that his aide can be trained in the use of the software to adapt is assignments and curriculum materials" (Exh. 20 at 4).
On May 14 and 15, 2014, the parents signed an enrollment contract with (Exh. 68 at 4).
On June 1, 2014, student X's second grade regular education teacher, Ms. , reported that student X sometimes relates well to peers and sometimes answers oral directions that require recall of information (Exh. 31 at 5), and in an apparent contraction noted rarely answers oral direction that require recall of information and sometimes accepts suggestions and corrects own work (Exh. 31 at 6). Ms. , the class room teacher for math indicated that student X frequently required assistance with all reading and most writing components of math lessons; student X always required assistance with reading grade level text (Exh. 31 at 1); student X always required assistance in writing in addition to a scribe as well as assistive technology; student X frequently required assistance in social studies with the help of a scribe and the materials read to him; student X frequently required assistance in science with the help of a scribe to read materials and to complete written components of science lessons (Exh. 31 at 2).
On June 3, 2014, Ms. rated student X's academic achievement and found very limited levels for basic reading skills (sight vocabulary), and found limited levels for basic writing (spelling and identification of errors) and written expression (Exh. 38 at 1). The teacher found average levels of oral expression, listening comprehension and found advanced levels for mathematic calculation and mathematics reasoning (Id.). Ms. noted that student X was active, argumentative and determined, but determined that student X had normal highs and lows and the required more one-to-one attention than most students of same grade and age (Exh. 38 at 2). Ms. rated student X's behavior as "slightly seriously" uncooperative and provided handwritten notation: "occasionally wants to do things his way" (Exh. 38 at 3). Ms. rated the degree that student X's behavior impeded his opportunity to learn as "slightly serious" and described examples of anxiousness by indicating in handwritten notes: "chair on his feet, occasionally bites clothes" (Id.). Ms. rated the impact of this problem on the student's classroom performance as "seriously impairs performance"(Id.). Ms. provided examples of student X's behaviors in the classroom and noted that he had difficulty paying attention and that he was "sometimes distracted" and rated the degree his behavior impeded his opportunity to learn and the degree his behavior was disruptive to others as "slightly serious" (Id.). Ms. provided examples of student X's overactivity and by indicating in handwritten notes: "fidget and gets out of seat" (Exh. 38 at 4). Ms. rated "often" on the following categories: (1) listening ability, student X did not listen when spoken directly, (2) follow-through on school work, student X did not follow through on instructions and failed to finish work, (3) organization, student X had difficulty organizing his tasks and abilities, (4) orderliness, student X often lost school assignments, pencils books and supplies, (5) response to extraneous stimuli, (6) activity level when seated, student X often fidgets with hands or feet, (7) out of seat behavior, student X often leaves seat in classroom (Exh. 38 at 5). The teacher noted that student X was awkward (Id.).
The report card from Ms. provided a comment section that student X's "confidence as a learner grew and he entered the classroom ready and eager to learn" and his "use of assistive technology this year also helped him to gain access to the curriculum" and that student X was "often hesitant to write because it takes him longer that his peers" (Exh. 14 at 3). The teacher concluded by noting that student X was a "happy boy who fostered some lovely friendships" (Id).
For the 2014-2015 year, on June 5, 2014, a draft IEP was developed to classifiy student X with and recommended that student X be placed in a 12-month program in third grade which included one special class with a staffing ratio of 12:1+1 grade for 10 months in Language Arts once daily for a period of 1 hour and 20 minutes in a special location, specialized reading instruction once a day for 40 minutes in a class with a staffing ratio of 5:1 in a special location and individual for 30 minutes twice in a 6day cycle; and a special class for specialized reading instruction with a staffing ratio of 6:1+1 once a week for 3 hours and 20 minutes for the summer (Exh. 36 at 8). The IEP further required checks for understanding, refocusing and redirection, allowing breaks, tasks broken down in smaller units, shared aide, to reduce the amount of visual information on a page and a laptop. Student X was to receive testing accommodations including: test questions read to student, directions read to student, multiple-choice responses read to student X, scribe (Exh. 36 at 9). The managements needs mandated "adult assistance in all activities that involve reading and/or writing" and "assistive technology to access the reading and writing curriculum independently" (Exh. 36 at 5). The management needs further indicated that student X needed support organizing and managing class materials and required "scientifically based reading instruction to develop essential decoding work attack skills" (Id.).
On June 11, 2014, student X's second grade special education teacher rated his level of basic reading skills and level of written expression as very limited (Exh. 39 at 1). The teacher described student X's inattentiveness by providing handwritten notes: "looks around, is distracted by other students” and rated the degree that student X's behavior impeded his opportunity to learn as "slightly serious" (Exh 39 at 4). The teacher described student X's uncooperative behavior as "argues" and rated his behavior as "seriously" impeded student X's opportunity to learn (Exh. 39 at 5).
, Ph.D., Bilingual Psychologist, conducted a evaluation on June 14, 2014, when student X was 8 years and 7 month in second grade at the . The evaluation was received by the parents on August 13, 2014 (Exh. 62 at 2). Dr. explained that at student X's birth "there was a knot ... and the cord was wrapped around his neck" (Exh. 23 at 2). Dr. reviewed his history and noted that student X had received special education services since preschool of and SEIT and repeated Kindergarten (Id.). Dr. reported that student X had difficulty paying attention, and sitting still and was easily distracted and that his "inability to read and write and stay focused" led to "even bigger gaps in his academic and social success and self-esteem" (Id.). Dr. used the WISC-IV to assess cognitive functioning (Exh. 23 at 4). He reported the following scores: verbal comprehension score was , in the range of functioning; perceptual reasoning score was , in the range; working memory score was , in the range and processing speed score was , in the range with a full scale IQ score of , in the range (Exh. 23 at 7). Dr. assessed his achievement skills and found that student X scored on the Woodcock-Johnson Tests of Academic Achievement, Third Edition as follows: oral comprehension subtest score of , a GE of high ; letter-word identification score of , GE high ; passage comprehension score of , GE mid ; spelling score of , GE high , applied problems score of , GE low ; calculation score of , GE mid , writing sample score of , GE high (Exh. 23 at 8).
Dr. noted that student X was distracted by irrelevant details and needed a large amount of redirection and observed "difficulties with articulation and clarity of speech (Exh. 23 at 6). Dr. indicated that teacher reported that student X did not often follow through on instructions and failed to finish school work and had "difficulty organizing his tasks and activities"(Exh. 23 at 12). On the Behavior Rating Inventory of Executive Functioning ("BRIEF"), he indicated that student X was "at clinical levels in all areas assessed including initiation, inhibition, shift, working memory, organization of materials and monitoring" (Exh. 23 at 13).
Dr. reviewed March 8, 2013 visual perception test that indicated that student X had a processing disorder" and "wears prism glasses due to issues with convergence" (Exh. 23 at 2). Dr. noted that the second grade teacher report indicated that student X needed "assistance with all reading and most writing components of math lessons"(Exh. 23 at 4). He reported that the second grade teacher noted that student X needed facilitation to participate in grade level text and used a scribe as well as assistive technology "to help engage in grade level writing activities" (Id.). He reported that the second grade teacher noted that tasks "that require both reading and or writing require adult facilitation" and "his frustration often increased with the demands of the second grade curriculum" (Id.). Dr. assessed student X's phonological processing skills and noted that student X had "difficulties with phonological processing" (Exh. 23 at 11) in his ability to use correct punctuations (Id.). He defined orthographic awareness as an awareness of the visual representation of letters and found that student X scored in the range in his ability to unscramble letters to form words, in his ability to choose the correct spelling of a word from several choices relating to a visual picture of that word and in his ability to use correct punctuations (Exh. 23 at 12). He defined rapid naming as the ability to efficiently retrieve phonological information from memory and found that student X scored in the range in Rapid Color Naming and a level in Rapid Object Naming (Id.).
Dr. indicated that the parent reported that student X had trouble with social cues and had trouble communicating his thoughts and ideas and was very clumsy (Exh. 23 at 16). He reported that student X's teachers wrote in June 2014 that student X needed "assistance with all reading and most writing components of math" and used "a scribe as well as assistive technology to help engage in grade level writing activities" (Id.). Dr. diagnosed student X with Disorder 315.00, Disorder of
315.2, Disorder, Type 314.00, Disorder (Exh. 23 at 15). Dr. concluded that student X's profile was the "divergence of most cognitive skills when compared to academic skills" and recommended a small nonpublic school setting with students at his skill level rather than his grade level (Exh. 23 at 18), a school that provided individualized attention and a reading program for phonological dyslexia and orthographic dyslexia and to address student X's issues with "attention, social issues and anxiety and low self-esteem"(Exh. 23 at 19).
On August 13, 2014, the parents' attorney wrote to the Director of Pupil Services, , to inform him of student X's diagnoses including , weak orthographic processing and rapid naming skills and of the parents concerns regarding the program and enclosed Dr. report (Exh. 23); requested additional testing and expressed concerns with the use of AT and expressed the concerns that student X could not read or write "despite being in the 3rd grade" (Exh. 1 at 1) and expressed their desire to have student X first gain reading and writing skills before AT is introduced (Exh. 1 at 2). The parents expressed concerns about the reading program the small number of management needs the goals and requested further reading and writing goals, executive functioning goals and social and emotional goals the requested the final copy of the IPE and to schedule a visit to the proposed classroom (Exh. 1 at 2)
On August 20, 2014, the parents' attorney wrote to , Director of Pupil Services to alert him that "absent a timely and appropriate program and public school placement" the parents placed student X at for the 2014-2014 school year and sought funding for tuition at public expense (Exh. 1a). On August 26, 2014, the District through their attorney wrote to the parents’ attorney to acknowledge receipt of the evaluation, and to note that did not recall the parents requesting additional testing and had no receipt of writing request of parent consent (Exh. 2 at 1). The letter indicated that the Director would "put off the introduction of new technologies" until the parents could meet with CSE and indicated that reading program would be taught by a NYS teacher certified to deliver specialized reading instruction (Exh. 2 at 2).
For the 2014-2015 year, the IEP (Exh. 11) was dated in error on June 5, 2014, due to a computer glitch, but finalized on August 27, 2014 (Exh. 11 at 2; Tr.1105). The District's CSE classified student X with and recommended that student X be placed in a 12-month program in third grade which included one special class with a staffing ratio of 12:1+1 grade for 10 months in Language Arts once daily for a period of 1 hour and 20 minutes in a special location, Specialized Reading Instruction in group with a staffing ratio of 5:1 once a day for 40 minutes in a special location and individual for 40 minutes twice in a 6-day cycle in a special location. The IEP recommended summer services of a Special Class (Specially Designed Instruction) in a class with a staffing ratio of 6:1+1 once a week for 3 hours and 20 minutes (Exh. 11 at 9). The IEP further required checks for understanding, refocusing and redirection, allowing breaks, tasks broken down in smaller units, shared aide, to reduce the amount of visual information on a page and a laptop computer and speech to text software, and an AT consultation once a year for 25 hours (Exh. 11 at 8- 9). Student X was to receive testing accommodations including: directions read to student, multiple-choice responses read to student X, scribe, testing location with minimal distractions (Id.) The IEP noted that student X was a slow reader and mandated "adult assistance in completing reading and writing assignments in mainstream classes" and indicated that student X's "difficulty organizing and managing class materials due in part to sensory seeking behavior (e.g., peeling tops of erasers off pencils, excessively sharpening pencils, fidgeting)" (Exh. 11 at 3). The IEP indicated that student X comprehended age and grade appropriate literature when read aloud to him, decoding skills were at the end of first grade and mastered phonograms "ch, sh, th, wh, ring, ll, ss, ff" and that "with adult support in reading he is able to keep up with his nondisabled peers in mainstream classes"(Exh. 11 at 4). The IEP noted that student X had good letter formation, but difficulty with spelling impacted his ability to complete writing assignments. The IEP noted that student X needed direct instruction in reading and become proficient in decoding and mandated "instruction in the use of assistive technology to facilitate ... both the reading and writing process" (Id.). The IEP indicated that parents were concerned with deficits in reading and to address the deficit "the Committee recommended a daily Special Class of English Language Arts and daily Specialized Reading Instruction targeting to continue to build decoding skills" (Id). The managements needs mandated "adult assistance in all activities that involve reading and/or writing" and "assistive technology to access the reading comprehension and writing" (Exh. 11 at 5). The IEP indicated that AT evaluation software: Kurzweill 2000 (test to speech support), Dragon Naturally Speaking (speech to text software, Word Q (word prediction software) and Claro Read Standard (text to speech feedback) to facilitate reading and writing (Id.). The IEP contained a study skills goal to have all materials necessary for class and will write down assignments and 3 reading goals and 3 writing goals and 2 motor goals and 2 motor skills goals to use software and keyboard (Exh. 11 at 7). The testing modifications included: directions read; test passages, questions, items and multiple choice read; scribe; testing in a location with minimal distractions (Exh. 11 at 9).
On September 23, 2014, the parents' attorney wrote to the District's attorney to inform her that the parents expressed their concerns about the results of the District's psychological evaluation (Exh. 16) at the June 5, 2014 IEP and the reliance on assistive technology (Exh. 3 at 1), and the changes in the reading program (Exh. 3 at 2).
On December 18, 2014, the District's attorney wrote to the parents' attorney to state that there was no agreement at the June 5, 2014 IEP meeting to conduct further testing and again requested written parent consent (Exh. 4 at 1). The letter notified the parents that the final IEP dated August 28, 2014 was mailed with the prior written notice (Exh. 10) as was the IEP (Exh. 4 at 2).
On April 30, 2015, the classroom observation was conducted by Mr. (Exh. 24). The Director noted that student X "had difficulty leading the routine and needed support from the teacher" and that student X "needed prompting from the TA to complete the task"(Id.). Mr. further noted that while "other students read" student X "flipped through the pages and played with a pencil in his desk" (Id.).
On June 1, 2015, the District's CSE again classified student X with and recommended that student X be placed in a 12-month program in fourth grade at which included one special class with a staffing ratio of 12:1+1 grade for 10 months in Language Arts once daily for a period of 1 hour and 20 minutes in a special location, Resource Room in group with a staffing ratio of 5:1 4 times in a 6-day cycle for 40 minutes in a special location, direct Consultant Teacher services once daily for 40 minutes and individual twice in a 6-day for 40 minutes in a special location. The IEP recommended summer services of Specialized Reading Instruction in a class with a staffing ratio of 5:1+1 daily for 40 minutes and Specialized Reading Instruction twice a week for 2 hours (Exh. 61 at 10). The IEP further required program modifications of checks for understanding, refocusing and redirection, allowing breaks, tasks broken down in smaller units, shared aide, reducing the amount of visual information on a page, graph paper, monitor of assignment completion the directions repeated (Exh. 61 at 11). The IEP indicated that student X was to receive testing accommodations including: directions read to student, test passages, questions, item and multiple-choice responses read to student X, scribe, testing location with minimal distractions, periodic breaks and extended time (Exh. 61 at 12). The management needs included the following: instructional support in all activities that involve reading and / or writing, support to organize and manage classroom materials, continuation of a scientifically based reading instruction, redirection and refocusing to remain in task, instruction repeated, an intensive reading instruction to develop proficiency and small group instruction to build reading and writing skills (Exh. 61 at 8). The IEP noted that the "need for assistive technology should be closely monitored and reconsidered to the extent it can serve to minimize the effect of the student's physical limitations on the writing process without sacrificing direct instruction to improve his handwriting" and "positive reinforcement and encouragement when facing academic challenges" (Id).
On August 14, 2015, Harry Burg wrote to the parents to offer another meeting to discuss concerns (Exh. 62).
On August 26, 2015, the parents attorney wrote to to express the parents concerns during the June 1, 2015 IEP regarding the recommended educational program and noted that the parent received a copy of the June 1, 2015 IEP on July 28, 2015 and repeated the recommendations of Dr. (Exh. 63 at 2). The attorney stated that the parents disagreed with the 12:1+1 classroom placement as they believed student X required "direct instruction in a small group of similarly situated students on his instructional and functional level" (Id.). The attorney stated that the IEP had the following deficits: no consideration of student X's difficulty with transitions; that student X was to be monitored by a counselor, but was not recommended as a related service and a monitor could not meet student X's emotional and social needs (Exh. 63 at 2). The attorney requested additional reading, writing and math goals as well as social and emotional goals (Id.). The attorney again expressed the parents' concerns that they wanted "their son to first gain reading and writing skills before introducing assistive technology" (Id.). The attorney requested a formal notice of school placement or to confirm the placement and that "absent a time and appropriate public school placement" the parents would send student X to and request tuition funding for the 2015-2016 school year (Id.).
By letter dated August 28, 2015, wrote to the parents to schedule a meeting of CSE to discuss student X's special education needs on September 1, 2015 (Exh. 64 at 2).
By email dated September 1, 2015, the parent wrote to to state "sorry we were away and not able to meet today" (Exh. 65).
By letter dated September 4, 2015, wrote to the parents to state that while the June 1, 2015 IEP meeting resulted in an IEP mailed to the parents on July 28, 2015, there was no communication until last week (Exh. 66 at 1). Mr. Burg stated that he had thought that there was consensus regarding the assistive technology and the need for and proposed to add once in a 6-day cycle for 30 minutes, direct psychological consultation services, 15 minutes per day, indirect psychological consultation once a week for 30 minutes and noted that assistive technology was put off until "after the first month of school, not only to assess his need for additional social/emotional support and review his program, but to also have a focused discussion to assess whether we could introduce technology to assist him, without sacrificing or interfering with his annual writing goals and remediation of his difficulties"(Exh. 66 at 3).
POSITION OF THE PARTIES
The District has recommended that the student who is classified as be placed in an mainstream program except for Language Arts once daily for a period of 1 hour and 20 minutes in a special location, Specialized Reading Instruction in group with a staffing ratio of 5:1 once a day for 40 minutes in a special location and individual for 40 minutes twice in a 6-day cycle in a special location and summer services of a Special Class (Specially Designed Instruction) in a class with a staffing ratio of 6:1+1 once a week for 3 hours and 20 minutes (Exh. 11 at 9 for the 2014-2015 school year. The parents disagreed with the District's program and placement and have placed student X at and request tuition reimbursement/funding for the academic 2014-2015 school year.
The District has recommended that the student who is classified as be placed in an mainstream program except for Language Arts once daily for a period of 1 hour and 20 minutes in a special location, Resource Room in group with a staffing ratio of 5:1 4 times in a 6-day cycle for 40 minutes in a special location, direct Consultant Teacher services once daily for 40 minutes and individual twice in a 6-day for 40 minutes in a special location and summer services of Specialized Reading Instruction in a class with a staffing ratio of 5:1+1 daily for 40 minutes and Specialized Reading Instruction twice a week for 2 hours (Exh. 61 at 10). The parents disagreed with the District's program and placement and have placed student X at and request tuition reimbursement/funding for the academic 2015-2016 school year.
THE DISTRICT'S CASE
The District's case was presented in the testimony of the Director of Pupil Personal, , Special Education Teacher, , Regular Education Teacher, , and OT provider, .
, a certified regular education teacher and a possessor of a Master's degree in elementary education and a permanent certification N through six, testified that she taught second grade children for four years and she had taught third grade for three years and kindergarten for eight years (Tr.50-51). She recalled that student X started in her classroom in September 2013 for the whole day except of English Language Arts ("ELA") in a class of 20 to 22 students (Tr.52;103). She described the behavioral component in her class as a point system or a reward system so that the children in her class could earn positive points to celebrate in a class party (Tr.103). She explained that student X attended ELA for 80 minutes each day with a special education teacher (Tr.52). She stated that student X had a smooth transition into her classroom and as he was happy, intelligent and eager to start the day (Tr.53). She opined that he functioned very well with a teaching assistant ("TA") and accommodations that enabled student X to be successful (Tr.54). She described the role of the teaching assistant who functioned as a scribe to write and read for student X (Tr.55). She maintained that student X was very social, happy and funny and at unstructured time he would pick a friend to play games (Tr.56). She explained that student X was very bright so she and the TA "found ways to for him to participate so that he felt good about himself" (Tr.57). She stressed that student X had a strong number sense and so she "made sure ... he had an opportunity to share amongst his peers how strong he was" (Id.). She recalled that student X was able to contribute to group discussion as "he was able to come up with the hypothesis and he was able to draw the conclusions based on what they experienced as a group"(Tr.59). She noted that student X was actively involved as the teacher assistant or herself would assist student X's in reading or writing (Tr.61). She opined that student X "wanted to be successful, and he tried very hard to be engaged and to be part of the classroom... he felt good about being in a mainstream classroom with his peers" (Tr.62).
When questioned as to whether student X was accepted by his peers, Ms. stated that student X was well liked but he struggled because he was such a reader and not a low level thinker (Tr.64). She stressed that student X experienced a difficult time because he was not able to participate in reading and writing more independently" (Id.). She explained that as "reading and writing permeates every subject... the scribe was very useful and just gave him the opportunity to verbalize what he knew"(trams. 64-65). She described student X as "a kid who had sensory issues, and those were displayed often in the classroom....he chewed on his shirt. He put the table legs on his feet every day"(Tr.67). She stated that she coordinated with student X's OT who provided suggestions to meet his sensory needs such as pencils without erasers (Tr.69). She recalled times when student X was frustrated, but she would provide student X with a break and opined that he had a successful year as he was happy to learn and progressed (Tr.71).
When questioned as to whether student X was assessed with his non-disabled peers, Ms. noted that Fountas & Pinnell was used to assess reading and that he could provide verbal responses to assess his knowledge in math and social studies (Tr.74). She explained that she coordinated with student X's special education teacher who taught reading and writing in an 80 minute block outside her class (Tr.76). She explained that she completed a check list (Exh. 23) in June 2014 and indicated that student X's temperament was "determined"," argumentative" and "active" (Tr.78), and he needed the TA in the class so he needed more one-to-one attention (Tr.79). She further explained that student X was not able to write independently so he could not complete a school work task without an additional adult (Tr.81). She described student X's difficulty organizing his tasks and activities; "He was messy...he was disorganized. He lost things. His desk was a mess"(Tr.83), but she did not consider his disorganization affected his work (Tr.84). She recalled that student X was distracted and he fidgets often with hands and feet (Tr.86). She explained that she addressed student X's problems with attentiveness by providing him with bracelets that he wore around his wrist and noted that the 2013-2014 IEP allowed "movements for breaks" (Exh. 12 at 6) and that many children in her class were moving around (Tr.90).
Ms. recalled that she participated in the 2014-2015 IEP meeting and she told the team that student X had a successful year in her mainstream classroom (Tr.92). She acknowledged that student X was frustrated by his inability to read and write, but maintained "his disability wasn't the focus; it didn't really define him...He found ways to navigate his classroom so that he could find success as a learner" (Id.). She recalled that she told the CSE team that student X progressed in reading from a "non-reader" to reading at the middle/end of first grade level (Tr.94). She explained that in addition to the daily 80 minutes of ELA, student X had a period of resource room daily and twice a week (Tr.96). She provided an example of student X's handwriting (Exh. 31 at 7) and recalled that the physical process of writing was cumbersome for him, but maintained that the accommodation of a wordlist, providing a set of directions, modeling lessons and graphic organizers helped him with writing. She noted that he was taught the elements of letter writing (Tr. 100).
On cross Ms. stated that student X was frustrated during reading and writing activities (Tr.105), and "he tended to work slower based on a certain subject" and "it took sometimes longer for him to verbalize his responses and for the scribe to write them"(Tr.107). She acknowledged that when student X was distracted, he would "fidget in his seat. Play with the things in his desk ... his desk tag. Anything that he could find. The chair legs on his feet. He needed to touch something"(Id.). She recalled that sensory items, such as fidgets, a jewelry toy and velco, were sent with student X to his special classes like art, music, or physical education to address his sensory needs (Tr.109). She stated that student X chewed on his shirt and put the bottoms of the chair on top of his sneakers and he would sit on them while he worked (Tr.165), and acknowledged that no FBA or BIP was developed in his IEP, but she stated that she did not consider that student X displayed "any behaviors that needed a behavior plan"(Tr.110). She opined that she or the TA could redirect student X when he was distracted (Id.). She recalled that other students in the class had behavior issues and were at times disruptive (Tr.136).
Ms. recalled that student X reversed letters or omitted letters and that the TA would scribe or write for the student or read the questions and answers to student X (Tr.115;118). She stated that other students in the class were expected to write notes from the whiteboard or SMART Board to their notebooks (Tr.116). She opined that because writing the notes was cumbersome for student X, the scribe wrote the notes (Tr.117).
When questioned as to why student X was mainstreamed Ms. stated that student X was able to intellectually able to keep up with his peers, but needed support so he could continue to learn (Tr.118;125). She recalled that student X did exhibit sensory seeking behavior during transitions for resource room, art, Spanish and computer such as frequent toe walking and chewing (Tr.120). She explained that Fundations was used to teach spelling and she used an online program "STAR" and Fountas & Pinnell to assess reading levels (Tr.121). She described student X's emotional difficulties which occurred when he became overwhelmed and noted while student X was always respective, he would become oppositional and was frustrated (Tr.124). She recalled that student X did not receive a modified curriculum, but differentiated instruction and that he started with the Book A in Fountas and Pinnell at the end of the year he was reading as the end of first grade (Tr.122;129).
When questioned as to whether student X had friends, Ms. could not recall if he had a friend or if he went on play dates or participated in school activities (Tr.130). She recalled that student X felt more comfortable participating in a small group in math or science than in reading and could not recall if his classmates reacted to his frustration (Tr.132). She stressed that student X was intellectually able to keep up with his peers, but he was frustrated by his inability to read and write independently (Tr. 111). She recalled calling student X's parent to tell her how she could help student X at home and opined that the parent conveyed to her that student X was frustrated at home (Tr.134), and that she and the parent agreed that student X was only required to do homework if he was not frustrated and in distress (Tr.136). Ms. stated that during the 2014 parent/teacher conference she shared her concerns with student X's progress in reading and writing (Id.).
Ms. recalled that during the reading pull-out and ELA that student X left her class to go to a class down the hall and that she used another reading program with student X than she used with the rest of the class as student X was reading below grade level (Tr.137). She further recalled that student X worked at a slower pace than his classmates and while math was a strength he was not able to complete "Mad Math" a timed test of math facts for speed and accuracy (Tr.140). She could not recall whether student X wrote the answers or whether student X told the TA to write the answer. She acknowledged that student X would not always be available for her instruction if he were verbalizing the answer to the TA or the TA was speaking to him during a lesson (Tr.142). She recalled the modification she used for student X included a visual schedule the directions verbally repeated and to prompt him that she would call on him so he could "shine" amongst his peers (Tr.143).
When questioned as to the 2014-2015 IEP meeting (Exh. 11), Ms. was not able to explain why the chewing bracelet was not listed in the management needs (Tr.146), nor could she recall if the WISC-IV scores were discussed (Tr.148). She was unable to explain why a scribe was not added to the writing section of the IEP (Exh. 11 at 4), nor could she explain the increased expectation of reading and writing for a third grader except to note that the demands of reading, spelling and writing increased and more independent learning was expected (Tr.151). She did recall a conversation regarding how student X's skill level with supports could engage successfully in the third grade curriculum (Tr.153). She further recalled that the parents were concerned with the use of assistive technology ("AT") and that the parents considered AT was not appropriate (Tr.154;195;199).
Ms. could not explain why the fifth goal (Exh. 11 at 7) of the 2014-2015 IEP stated: "using a systematically based instructional approach, the student will make at least one year of progress in the development of his reading" did not specifically state a reading program like Fountas & Pinnell (Tr.157). She did recall a discussion of student X 's social and emotional needs, but was not able to explain why there were no social or emotional goals on the IEP (Tr.161). She did recall that she telephoned student X's parents regarding his frustration and anxiety in class once or twice during the year (Tr.163). When questioned about the reading and writing goals on the May 29, 2013 IEP, Ms. explained that the special education teacher, Ms. , was responsible to teach student X reading (Tr.166), and implementing the reading and writing goals (Tr.169). She further explained that she did not develop the specialized instruction goal as she was not a special education teacher (Tr.170). She was unable to explain how the 2014-2015 IEP differed from the 2013-2014, nor could she recall if the differences were explained at the June 1, 2014 IEP meeting (Tr.173). She recalled that when she taught content in the math, science or social studies curriculum that student X was not required to read large passages of text to meet the goals (Tr.175). She stated that student X was able to understand the content of the lesson in math, science and social studies despite his lack of reading skills (Tr.176). She stressed that student X was a valuable member of the class so she ensured that his difficulty in reading did not impact on his ability to participate as the TA or she would talk to him about how he would participate if she were to call on him (Tr.179). She stated that spelling for student X was not assessed (Tr.180). She further stated that when she taught the class during the ELA block that student X was taught by his special education teacher (Tr.184). She opined that his classmates accepted student X and they shared similar interests (Tr.186). She stressed that student X's behavior did not require a FBA or a BIP (Tr.188) and that even strong math students have problems completing Mad Math (Tr.190). She explained that most students understand the material when in small groups not just student X (Tr.194).
When questioned about the math goal: "student will solve word problems involving dollar bills, quarters, dimes, nickels and pennies, using $ and ^ symbols" on the May 29, 2013 IEP, Ms. stated that she taught her class this information (Tr.203. She could not explain why she wrote on his report card (Exh. 31 at 3) that his awareness of the requirement for adult facilitation for reading and writing affected his confidence as a learner (Tr.208).
, a holder of a Master's of Science in Special Education and an Advanced Certificate of Applied Behavior Analysis, testified that she had been employed by the District for three years (Tr.214). She recalled that she received training from the
Training Institute in Preventing Academic Failure ("PAF") in the fall of 2013 and attended a five-day training on assessment tools and reading fluency in November 2014 and received a graduate certificate in Teaching Children with Autism in 2015 (Tr.215). She explained that she used the PAF program to teach reading (Tr.217). She noted that PAF was comprised of multiple tools including eight reading books with very controlled, very sequenced vocabulary designed to help children learn to decode (Tr.219). She related that both she and two other special education teachers received PAF training in the last week of September and four weeks in October 2013 (Tr.220). She maintained that PAF was an evidence-based reading instruction as phonological awareness (decoding) and the fluency of words was the most successful way to teach reading (Tr.226). She explained that operated a school using PAF and offered workshops to train teachers in the public school to use PAF (Id.).
She stated that she was student X's special education teacher in ELA in September 2013 with another second grader for 80 minutes daily in a six-day cycle (Tr.223). She explained student X was very intelligent and it was a challenge as student X's ability to decode was far below his ability to understand material (Tr.224). She described student X was a non-reading in September by her assessment in the PAF placement test (Exh. 25) as he was not able to correctly identify short vowel sounds and he confused the consonants B and D (Tr.228). She opined that at the end of the year student X was somewhere in the first grade in terms of his progress through book four and noted that books one to three were considered Kindergarten level; books four to six were considered First grade level and books seven to nine were considered Second grade level (Tr.232 ). She opined that she was pleased with student X's progress as she was his least favorite teacher (Tr.236). She explained that it was very hard for student X not to be discouraged as he struggled to decode, yet was comprehending and inferring on a high level (Tr.239). She stated that she "was in the agonizing position of saying yes, I know, you don't want to do this again, but this is what works"(Tr.239). She maintained that the task of teaching reading was distasteful, but that student X progressed in his ability to participate in his general education class with trusted adults to act as his scribe to help with spelling so that he could recopy (Tr.240). She opined that student X was very bright and had friends and enjoyed being a part of the second grade general education class (Tr.242;244). She recalled that she was responsible for the reading goals two to six listed on the May 29, 2013 IEP and that PAF was used for reading and to work on the goals (Tr.217;245). She explained that she acted as student X's scribe to write a topic sentence and then student X would copy her work and that organizing his thoughts was such a strength that student X assisted her other second grader (Id.).
When questioned as to how she determined that student X was at the end of first grade, Ms. was not sure if she used the STAR assessment and also was not sure if she or , the resource room teacher, developed the writing goals as both she and Ms. collaborated with writing (Tr.248;253). She recalled that she did not draft the writing goals and noted that Ms. was familiar with the third, fourth and fifth grade program (Tr.256). She opined that there were no social and emotional issues so there were no social or emotional goals (Tr.258). She opined that student X enjoyed school and had positive interactions and while he was self-conscious about his reading and writing, he was cooperative with trusted adults (Tr.259). She acknowledged that student X was standoffish with new a new aide and that she was not a "preferred adult" and that student X would argue rather than comply (Id.).
She recalled that she participated in the June 5, 2014 IEP meeting and provided reading information level listed on the present levels of performance of mastery of phonograms (consonants, short vowels, digraphs, (ch, sh, th, wh) and the sight words in the academic achievement section (Exh.[11] at 3, 4); and provided the level student X needed to continue with initial and final blends, open syllables, suffixes and learning to spell high-frequency words would help him in the general regulation environment (Tr.247). She recalled that there was a debate at the June 5, 2014 IEP meeting regarding assistive technology (Tr.248). She recalled that the parents also had concerns with the reading program for the 2014-2015 school year (Exh 8 at 2) and explained that PAF was a program designed to break down the process of reading to teach the sounds letters make and the ability to manipulate phonemes and grapheme resulting in the ability to read and to decode (Tr.302). She explained that she developed the second goal on the June 5, 2014 IEP to "decode 10 newly introduced words monthly with initial and final blends" (Exh.
11 at 7) were the next step in the sequence of PAF (Tr.311).
When questioned as to her expectation of progress Ms. stated that she communicated with the parents in October to express her concerns regarding student X's decoding ability (Tr.315). She stated that the reading and writing goals related to fluency because student X had to decode quickly to understand what he read (Tr.318). She stated that she wanted student X to learn sight words from content subjects so that he could be successful in the general education environment (Tr.322). She explained that she collaborated with Ms. in the classroom to enable student X to participate and that she would act as a scribe when the vocabulary was too difficult to decode (Tr.324).
On cross Ms. stated that she did not attend the PAF 2, but attended some programs in the PAF program (Tr.331). She stated that she did not recall a conversation with the parents about student X's problems with transition (Tr.333). She acknowledged that she was unaware that student X was reading Book G of Fountas & Pinnell in the beginning of second grade and was unaware if student X had play dates as she was not in his general education class (Tr.335). She allowed that some students could fail to read letters in isolation, but were able to read letters within a word (Tr.336). She explained that she found student X based on his strain in learning to read and the PAF Placement test (Exh. 25 at 1) determined the book that student X started with in September 2013 (Tr.338). She opined that student X's was a 10 on a scale of 1 to 10 (Tr.339). She noted that student X had peers in the second grade that had mastered the decoding skills that student X had yet to master (Tr.340). She explained that student X had at least 2 TAs over the school year (Tr.341). She explained that in September 2013, she assessed student X's progress at level 21 and hoped that in June 2014 student X was at level 84 (Exh. 26 at 9), but that she had to constantly practice with student X (Tr.346). She explained that Fountas & Pinnell used pictures and the STAR used multiple choice so she was not sure if they were scientifically based reading systems (Tr.353). She maintained that a scientifically based program actually produced results in a sequential fashion such as a phonics program to teach the vowel sounds to learn to read (Tr.355). She noted that there was a PAF handwriting program under script and print work, but she did not use the writing program because she thought it would confuse student X (Tr.356).
On cross Ms. acknowledged that she was unaware of the continuation of the PAF program over the summer of 2014 as she did not teach over the summer (Tr.359). She did not recall a discussion of PAF over the summer during the June 5, 2014 IEP meeting (Tr.360). She stated that there was no effort to tie PAF materials or skills to the second grade general education class during the 2013-2014 school year (Tr.363). She explained that with the support of a TA who acted as a scribe and provided a master word list for the words student X could not read, allowed him to participate in the mainstream environment (Id.). She maintained that the single word test (Exh. 26) was the PAF assessment she used (Tr.365). She explained that she utilized the 80 minutes to rehearse previous material and then to dictate, but it took her 1 to 2 minutes to motivate him (Tr.367). She stressed that student X was challenging because he needed a very strong skills-based reading program, but he was able to be with typical peers to stimulate him (Tr.370). She stated that her first year in the District was in 2013 and she implemented the PAF program in September 2013, and copied the fluency book to give to the parents (Tr.371). She noted that student X was selective about whom he trusted to read to him (Tr.373). She acknowledged that PAF had a repetition and recopying component (Tr.375), and that a lack of daily repetition would affect progress (Tr.376), and that student X would regress (Tr.379). She could not explain how her lessons in spelling in the 80 minutes were repeated in the general education class (Tr.380). She explained student X's frustration manifested in his statement that "he didn't need to learn to read" (Tr.383). She recalled that she spoke with the different TAs to show them where student X was reading so the TAs would not frustrate him (Tr.384). She did not recall a conversation with the TAs as to when to act as a scribe and when to allow him to write the lesson (Tr.384). She opined that student X was able to self advocate (Tr.385). She further opined that PAF should be used alone and not be used with another reading program (Tr.386). She recalled that student X did lose papers and pencils (Tr.387). She stated that she was unaware of the immersion ideology to provide PAF in other subject areas, but noted that PAF could not be implemented in the second grade mainstream class as student X's reading level was too low (Tr.390;392;395). She stated that student X was taught writing from Kindergarten to second grade using the "Fundations" textbook (Tr.398). She could not explain why 2013-2014 reading goals were not updated to reflect the use of PAF (Tr.399). She could not recall if the PAF reading program was placed in the 2014-2015 IEP (Tr.403), except to note that methodology was note placed on the IEP (Tr.408). She did not recall a discussion of the WISC scores or the WIAT scores at the 2014-2015 IEP meeting (Tr.407). She recalled discussion she had with the parents during the second grade 2013-2014 school year and that she conveyed to the parents her concerns about student X's lack of compliance and "stonewalling when he's told to read" (Tr.409). She stated that she conveyed to the parents her concerns that student X was not making progress because he "wouldn't work" (Id.). She stated that Ms. , the resource room teacher wrote the writing goal (Exh. 11 at 7) as Ms. taught student X writing (Tr.410). She did not recall any concerns raised by the parents regarding the proposed reading goals and noted that she wrote the reading goals that she hoped student X would meet (Tr.411).
On redirect Ms. explained that she did not use the Fountas & Pinnell to assess reading as there were pictures to provide clues and she did not use the Star Assessment as the answer was a multiple choice and she wanted to determine the exact decoding problem (Tr.417). She stressed that student X had a good memory, but learning to decode was very difficult as he was "word blind" and did not have the ability to recall a word represented by abstract symbols (Tr.419). She described student X's struggles in reading as "pretty rough" unlike his ability to recall a math lesson (Tr.420). She stated that with enough repetition that student X would maintain the skill and that she purchased PAF cards to help him recall (Tr.397; 421). She recalled that student X could write his lower case letters from dictation, but the act of writing caused him fatigue (Tr.424). She recalled that while she knew that the parents had concerns about the reading progress, but she was not aware of the extent of the parents' concerns until the June 2014 IEP meeting (Tr.427). She explained that she taught student X in an ELA special class for 80 minutes each day with another classmate from student X's second grade mainstream class in a room with a TA, and that another group of three children with three aides were also in the room during the ELA class (Tr.429). She described the other student in her ELA as different from student X as his problem was reading comprehension (Tr.430). She explained that student X liked the TA as she was a certified special education teacher who was known to student X as she was in his self-contained class and he liked her and she encouraged student X (Tr.440). She opined that student X required PAF to learn to read during the 2013-2014 school year and required PAF to learn to read during 20142015 school year (Tr.444). She opined that PAF would have been recommended to continue during the 2014-2015 school year (Tr.445). She stated that student X did not want to come to her ELA class, but she was not aware of any transition issues or any organization issues (Tr.449). She stated that she assessed student X in reading and knew where to start in PAF so she did not need to administer the PAF spelling test (Tr.2393).
Ms. stated that she developed goals for the 2014-2015 IEP meeting based on the PAF curriculum as student X was half-way through the Book D which dealt with initial and final blends and so she developed goal 2 to decode 10 newly introduced words that had initial and final blends (Tr.2400;2439). She explained that she checked to see if student X was able to retain skills by proficiency tests (Tr.2408). She stated that she felt the time she spent with student X was sufficient and did not consider more PAF beneficial for student X (Tr.2414). She stated that did not know if it was realistic to expect student X to make a year's progress in his reading ability (Tr.2420). She opined that based on the training she received that she was able to deliver the PAF program to student X (Tr.2422). She stated that she expected student X to continue with PAF in the 2014-2015 school year and that based on his disability 80 minutes of PAF was sufficient (Tr.2424-2425). She acknowledged that student X was struggled and that she was concerned with the lack of progress that he made in her class and she expressed her concerns to the parent as they texted each other each night to go over the pages of the PAR book student X was using in her class and reviewed at night (Tr.2430). She acknowledged that student X was very hard to motivate and the parent expressed the same difficulty with motivating her son to read at night (Tr.2431). She stressed that student X's lack of motivation was the reason he did not progress with his ability to decode and the content in a general education second grade class (Tr.2432). She opined that 80 minutes of PAF was sufficient as decoding was his weakest subject and anymore time devoted to PAF would be painful (Tr.2434). She stated that she did not recommend a full-time PAF program to the parents for student X (Tr.2436) and that methodologies like PAF were normally not placed on an IEP (Tr.2440).
On cross Ms. stated that student X was the only student to receive PAF in the 2013-2014 school year and that she did not use dictation to assess student X in September 2013 (Tr.2442). She acknowledged that student X was the only student she assessed in PAF by a placement test (Tr.2443). She explained that she collaborated with Ms. to determine the criteria that a child would retain for two weeks with 90 % accuracy ten newly introduced words that had either initial or final blends (Tr.2450). She explained that she did not use the actual planning book from PAF and did not work on spelling dictation, but did review the spelling dictation of the PAF lesson plan (Tr.2456). She explained that the parent used a PAF book at home to reinforce and build fluency (Tr.2478). She stated that she did not instruct student X in PAF dictation and writing, but she used dictation and spelling in learning to decode (Tr.2484). She opined that 80 minutes of PAF was sufficient and that amount of PAF in was inappropriate for student X (Tr.2486). She stated that given the amount of PAF for student X received during the 2014-2015 school year at and given that student X received an additional session of tutoring in PAF during the 2015-2016 school year evidenced the fact that student X was not doing well in PAF (Tr.2490). She stated that she did not assess student X again in June 2014 before she drafted the goals to determine his progress as student X would not have received PAF over the summer of 2014 because it was not necessary as the retention test was the proficiency test (Tr.2496). She acknowledged that she was aware that dictation, spelling and handwriting play an integral part in PAF, but she maintained that there was no need to perform spelling or dictation tests (Tr.2502), because student X could write his letters and she worked on writing a paragraph and writing a sentence with both boys in her class (Tr.2505). She explained that student X struggled with spelling words and his reading level was too low for him to be able to spell and yet his comprehension was above average so spelling frustrated him (Tr.2506). She stated that either she or her assistant teacher, a certified special education teacher, provided individual instruction, but allowed that the assistant teacher was not trained in PAF(Tr.2509). She explained that while student X was able to write down a small word during dictation, she wrote for student X on any topic such as "what did you do on break?"(Tr.2511). She further explained that while she only had 2 students in her class, there were 3 additional students working with 1:1 aides working on different activities during the 80 minutes of her class (Tr.2513).
, a holder of a bachelor's of science degree in , testified that she had been a NYS licensed and board certified occupational therapist for three years (Tr.456). She stated that she had worked as an provider for student X for the past four years (Tr.457;572). She described student X as a very happy boy in second grade and that he had matured from a moody child who had temper tantrums in Kindergarten and first grade (Tr.458). She recalled that the second grade teacher, Ms. , spoke to her about student X's sensory behavior in the class as student X was chewing on his shirt and clothing and very fidgety (Tr.459). She explained that she addressed student X's sensory behavior with a chewy bracelet and chewy toppers on his pencils (Tr.460). She recalled that she conducted a formal evaluation on student X in 2013 (Exh. 30), and recalled that she discussed with the parent the option of bringing student X to a developmental optometrist and as she found student X "had difficulty with handwriting. It took him a long time to remember what the letters looked like to write it down" (Tr.464). She recalled that during the 2013-2014 school year she provided individually twice a 6day cycle and once in a 6-day cycle (Tr.466). She noted that student X had difficulty keeping up with the handwriting in science and social studies in the mainstream classes and she thought she could address those issues through AT with a Dragon Naturally Speaking, a voice to text software. word processor (Tr.468). She stated that she arranged for an AT evaluation (Exh. 20) that confirmed student X's difficulty with handwriting and with keyboarding (Tr.473). She recalled a writing project in the second grade class that required her to read student X's handwritten notes to help him with writing (Tr.473). She recalled that the parent expressed concerns that AT should not take the place of reading and writing instruction (Tr.474). She describe her goals (Exh. 11 at 7) included a keyboard goal (Tr.477). She stressed that the teacher, the TA and herself would have to be trained on the use of AT and she recommended 25 hours of AT consultation at the June 5, 2013 CSE meeting (Tr.478). She recalled that she spoke with the parents during the 2013-2014 school year during parent/teacher conferences and told the parents that she wanted to test AT and requested permission for a formal AT evaluation (Tr.482).
On cross Ms. stated that she recalled that student X expressed frustration with his inability to write by his avoidance behavior: "I don't want to do this.... this is stupid"(Tr.484). She related that student X would push himself from the table and get up to watch what another child was doing (Id.). She opined that student X was happy in his mainstream class (Tr.486;490). She recalled that she used the handwriting textbook, "Handwriting Without Tears" with student X in Kindergarten, but in second grade the whole school used the handwriting textbook, "Fundations" (Tr.489;612). She explained that her time with student X was split in the sensory gym for movement activity and then a move to tabletop activities (Tr.493). She opined that student X put his feet under the legs of his chair and bit his shirt to "organize himself"(Id.), and noted "it was the stressor of academics that make him seek out almost sensory soothing behaviors"(Tr.495;576;618;630). She maintained that she recommended AT to remove the frustration of the physical act of writing (Tr.504). She explained that she worked with student X with his visual tracking (Tr.566). She noted that student X became fatigued in his fine motor and grapho-motor skills because he "had to exert so much energy in the physical aspect of writing (Tr.571). She recalled that no AT evaluation was recommended for the 2012-2013 school year because the demands of writing in first grade were not large (Tr.580), but after three years with student X she was able to see his frustration with his inability to write and the fatigue writing caused him so she recommended student X receive an AT evaluation (Tr.581). She could not comment on effect of on student X's fatigue, but maintained that student X had "fine-motor, enhanced skill development delays" (Tr.584).
On redirect Ms. stated that when she first started working with student X, he had sensory issues, body awareness issues, fine and gross motor issues and she later discovered that he had visual processing issues and handwriting and grapho-motor issues (Tr.588). She explained that with the use of Dragon Actually Speaking in their sessions of , student X was able to write and produced a writing sample (Exh. 27) that showed her how much student X was able to write when the physical act of writing was removed (Tr.590). She recalled that when she spoke with the parent regarding obtaining an AT evaluation for student X that the parent was concerned that she keep working on handwriting with student X (Tr.592). She explained the difference between sensory seeking behavior and sensory soothing behavior and noted that it was because of the academic demands of second grade that student X required sensory soothing behavior or oral input and so she provided the chewy bracelet for student X in Ms. second grade classroom (Tr.595;618). She noted that a chewy top was a socially appropriate way to calm and to organize (Tr.596).
On recross Ms. explained that as she was not a teacher she could not teach handwriting, but as an provider she could practice letter formation and the generation of sentences (Tr.598). She explained that the prism glasses student X wore were to assist in his difficulty with convergence and his difficulty in copying far point information from the smart board as well as near-point information (Tr.602-604). She maintained that visual stimulation was not a problem for student X, but visual processing was a problem (Tr.607). She described the difficulty student X had with various word predication software such as "Word Cue" because he did not know how to spell and he could not use the technology, "Voice Detects" that he used to produce the writing sample (Exh. 27) in class because he had people to scribe for him (Tr.610), and that Voice Detects worked inconsistently for student X because of his articulation errors (Tr.638). She explained that when student X used "Dragon Natural Speaking", he would need a noise cancelling headset with a noise cancelling microphone in a general education class (Tr.640). She further explained that student X needed the technology, "Claro Read," the technology that reads texts into the headset (Tr.642). She could not comment on the effect of on student X's near or far point copying (Tr.614). She explained that student X's chewed on his clothes to sooth himself and it was not sensory seeking behavior because he did not chew his shirt in or (Tr.621). She explained that she and Ms.
, the general education teacher, taught student X handwriting (Tr.635).
, holding multiple degrees and certifications, testified that he had been employed by the District for eight years as Director of Pupil Services since 2010 and Assistant Director of Pupil Services since 2006 (Tr.662), that he had held positions as both special education administrative and special education teacher for 17 years (Tr.665). He explained that he oversaw all aspects of the special education process, the ESL program and the financial aspects of special education process (Tr.667). He explained that he met student X in the spring of 2010 at preschool and aided in his transfer to the District for two years in Kindergarten in a special class with a staffing ratio of 8:1:1 (Tr.684). He recalled that in the first grade program student X was in special class with a staffing ratio of 8:1:1 for two hours (Exh. 13 at 1) and then student X attended a mainstream class for math, social studies and science (Tr.685;860), and then placed in a special class with a staffing ratio of 6:1:1 in a state approved camp for the summer of 2012 (Tr.687), He explained that because student X was successful in the mainstream classes in first grade, the same program was recommended for second grade in the 20132014 school year (Tr.862). He noted that student X had a shared aide for math, social studies, and specials in first grade and that the second grade class repeated the first grade program in second grade as student X was in a special class for Language Arts for 80 minutes daily and Resource Room with a staffing ratio of 5:1 once daily for 40 minutes for small group instruction and then in a mainstreamed environment for the rest of the day (Tr.690; 863).
Mr. recalled student X was diagnosed with , which he defined as permanent damage (Tr.671). He recalled that student X had great difficulty in communication and was violent and aggressive in Kindergarten, but with intensive support from 2010-2013, student X's behavior problems discontinued (Tr. 672;677;694). He explained that at the end of the 2013 school year, student X was diagnosed with convergence insufficiency and with prism glasses student X progressed in reading and was able to be mainstreamed in 2013-2014 with intensive reading instruction (Tr.673;679). He recalled the first grade self-contained program was for children with communication disorders and significant disabilities (Tr.674). He noted that the first grade IEP contained a BIP (Exh. 13 at 5), which was a token system managed by a certified behavior specialist and was utilized by student X for the Kindergarten and first grade, but he did not need the plan for second grade (Tr.695). He described student X's reading challenges as complex based on his problems with vision and phonological processing (Tr.676). He noted that student X also had because he had difficulty holding visual images, but maintained that student X was very bright and very verbal (Tr.679;732). He opined that student loved being in Ms. class and was able to participate with a TA and technology and was able to excel in math (Tr.680). He described student X's quirky behaviors exhibited in class such as shaking a pencil or moving his legs, but opined the other second grader s had similar motor releases (Tr.681).
Mr. recalled that he participated in the May 29, 2013 IEP meeting with student X's first grade teacher, Ms. , who was the behavior specialist and who reported to the CSE that while student X had some atypical or extremely distracted behavior, the behavior plan was extinguished as it was not necessary and recalled that Ms. observed student X (Exh. 18) and reported on student X's progress supported the removal of the behavior plan (Tr.705). He recalled that he observed student X in Ms.
second grade class once a month and he did not see any behavior issues that impacted student X's learning (Tr.712). He recalled that he conducted an observation of student X on April 30, 2015 at during reading (Exh. 24) and noted that student X was very active and very distracted and exhibited the same behavior that he observed in Ms. second grade class (Tr.714;1056).
Mr. recollected that he participated in the June 5, 2014 IEP meeting as the chairperson and that he recorded notes (Exh. 36A) on a CSE Review Form (Tr.719). He recalled that the parents were concerned that their son was not making enough progress in reading and that he was having a hard time in school and that the parents felt that the program was not working (Tr.720;848). He related that Ms. the regular education teacher informed the team that student X was progressing socially and emotionally and was more open for learning and had excelled in math (Tr.721). He stated that the special education teacher, Ms. , reported that student X progressed in reading from a nonreader to the middle of first grade (Tr.723). He recalled that the provider reported that student X had progressed in and that services were discontinued and was also discontinued (Tr.723). He stressed that student X's teachers reported much progress and that the team reviewed the AT evaluation (Exh. 17), the May 2013 psychological evaluation (Exh. 16), and the team recommended a continuation for an TA to implement "Dragon Naturally Speaking" and the continuation of 80 minutes of ELA and a specialized reading class instead of Resource Room (Tr.737-739). He stated while student X could only read phonograms, like consonant, short vowels, diagraphs, (Exh. 11 at 4), his verbal skills were well beyond first grade (Tr.743). He explained that student X's letter formation was good (Exh. 11 at 4) and noted that the teacher reported (Exh. 31 at 2) that student X's expressive language was higher than his writing ability (Tr.751). He stated that student X's writing sample (Exh. 27) using technology was at grade level (Tr.755). He recalled that Ms. informed the team that student X could get frustrated when faced with academic tasks and that AT was introduced to address the frustration (Tr.758). He recalled that the team discussed the impact of student X's inability to read or spell and how despite his limitations AT could assist his issues with spelling, reading, decoding and sight word recognition (Tr.760). He explained that AT could help student X access curriculum and express his thoughts (Tr.761). He explained that while PAF was discussed that the team was not wedded to PAF and that the team wanted the freedom to use an Orton-Gillingham methodology such as Wilson or Alphabetic Phonics (Tr.765), but he recalled a discussion that the continuation of PAF was intended for the 2014-2015 IEP as evidenced in the sequence of PAF in the goals (Tr.768). He recalled that he informed the team that a laptop could be provided in addition to reading and writing software to enable student X to be an active member of the third grade (Tr.774). He opined that student X required technology and technology was commonplace in the classroom for children with deficits and many children used technology such as google platform to organize themselves (Tr.777). He explained for third grade math student X would require accommodations for common core language based math tasks (Tr.781). He recalled that a summer program was recommended as student X met criteria to prevent substantial regression at a summer camp (Tr.785-786). He explained that student X required summer services to maintain skills he would lose as a result of his (Tr.789).
Mr. recalled that he was alerted that student X would not return after he received the August 13, 2014 letter (Exh. 1) from the parents' attorney (Tr.791). He recalled that the report (Exh. 23) was attached (Tr.792). He recalled that he was surprised by the parents' decision to send student X to as he and the team thought student X had a good year (Tr.794). He recalled that he finalized the IEP on August 27, 2014 and mailed the IEP to the parents on August 28, 2014 (Tr.797). He recalled that he told the parents that technology would not take the place of teaching reading and writing skills at the June 5, 2014 IEP meeting and that technology was not in lieu of skills development (Tr.800;848;1219;1223), and he thought that the parents were aware of the team's intention to continue to develop skills and to implement technology (Tr.803). He explained that during the June 5, 2014 IEP meeting he did not recall the parents requesting a FBA and the request was not placed in the comment section of the IEP (Tr.850). He stated that he recalled a discussion of the psychological and IQ scores during the meeting, but he did not recall a request for a new psychological evaluation and he did not note any request from the parents for a new evaluation (Tr.851). He noted that the parents were sent the IEP from the June 5, 2014 meeting on August 28, 2014 (Tr.859), which was received by the parents in the first week of September (Exh. 8 at 2). He recalled that he was aware of the parents concerns about the lack of progress in reading during the 2013-2014 school year, but he was not aware of any concerns from the parents regarding the mainstream class placement (Tr.869).
Mr. recalled that he participated in the June 1, 2015 meeting for the 20152016 school year and noted , the representative, participated and provided student X's current levels of performance at during the 20142015 school year and that the team including Ms. , Ms. and he reviewed Dr.
report (Tr.874;881). He recalled that the team discussed the parents issues with AT, and the reading deficit (Tr.882). He noted that he sent the parents the IEP on July 28, 2015 (Exh. 63 at 2) and that after he received the letter of August 26, 2015, (Exh. 63), he wrote the parents on September 4, 2015 (Exh. 66 at 1) to state that the team did not feel that student X required , but a would have been provided to aid student X's transition back to the District and that if the family wanted on the IEP, then would have been placed on the IEP (Tr.883-884). He recalled that Mr. informed the team that student X did not need at
(Tr.927). He stressed that he wanted to address the parents concerns prior to the start of the 2015-2016 school year (Tr.887). He recalled that during the June 1, 2015 IEP meeting the parents and Mr. were opposed to using AT instead of skill development, and that the team would not force AT, but the team wanted student X to learn to use AT when appropriate as AT was part of student X's future (Tr.896), and that the team would revisit AT in October 2015 (Tr.935).
When questioned as to skill development after a year at , Mr. stated that student X read correctly percent of the CVC words in the Coding Test post test of May 11, 2015 and that student X read correctly percent of CVC words in District on April 2014 and opined that student X had difficulty holding onto decoding skills (Tr.913). However, he opined that student X improved in his ability to decode the s-n blend as he improved from percent in the April 2014 test to percent in the May 11, 2015 test (Tr.918). He opined that the team considered student X on an upward trajectory after a year at and that student X would be able to manage his frustration and anxiety (Tr.933). He noted that many other children transitioned back to the District after a year at and he opined that student X would also successfully transition back to the District for the fourth grade (Id.). He recalled that Mr. described significant management needs in small classes at as student X had attention issues and needed directions repeated, but Mr.
noted there was progress in his management needs (Tr.935), yet he witnessed in his observation that student X was easily distracted and required refocusing and redirection (Tr.936). He opined that student X made progress in reading at on the Standard Reading Test (Tr.937).
On cross Mr. stated that the PAF program was incorporated into the District's program within the past three years (Tr.950). He stated that in 2013-2014, Ms.
was part of the first cohort of teachers trained in PAF (Tr.951). He recalled that he was aware that student X was after he read Dr. report (Tr.952). He maintained that Ms. , the resource room teacher, Ms. , Ms. , and Ms. were responsible to teach student X writing and each taught a component of writing(Tr.954;956). Mr. stated that if the parents were concerned with the program for the 2013-2014 school year, then they could have conferred with student X's case manager, either Ms. or Ms. (Tr.960). He stated that he was unaware whether Ms. taught writing to student X (Tr.964). He explained that the reason PAF was chosen was Ms. Kinnen's passion for PAF (Tr.972). H could not explain how a BIP was developed with first creating a FBA(Tr.982), and was not aware of any further information on the BIP (Exh. 13 at 5) except the information listed on the IEP for the 2012-2013 IEP (Tr.987). He explained that there was a greater degree of mainstreaming and a reduction of related services during the 2013-2014 school year as compared to the 2012-2013 school year (Tr.993). He could not explain why was removed for the 2013-2014 school year when student X received less special education services (Tr.994). He stressed that adding the specialized reading class in the 2014-2015 IEP recognized the need of student X required more intervention than just a Language Arts class (Tr.999). He explained that a small district was able to adjust the programs for the needs of the students and specialized reading may be adjusted from year to year (Tr.1001). He noted that student X had demonstrated an inability to retain decoding skills as student X performed in the first grade reading level and in the average range in the WIAT scores for psuedo-word decoding (Exh. 19 at 2) assessed on April 5, 2013, and yet student X lost those skills over the summer of 2013 at the start of second grade (Tr.1007). He could not explain if Fundations was part of the summer curriculum for 2013 (Tr.1009). He noted that there were three or four TAs for the 2013-2014 school year (Tr.1012). He stated that for the third grade curriculum student X would need AT to help student X read or write text and google platform could read material to student X (Tr.1047). He stated that he could not recall whether special orientation was discussed during the June 5, 2014 IEP meeting (Tr.1054). He explained that the draft June 5, 2014 IEP (Exh. 36) and the IEP finalized on August 27, 2014 (Exh. 11) were both dated June 5, 2014 due to a computer clerical issues (Tr.1105), however, he knew the draft IEP (Exh.
11) was developed after the June 5, 2014 IEP meeting because the May 2013 psychological evaluation was listed which was provided by the parents at the meeting (Tr.1147).
Mr. stated that he had planned to reconvene the CSE after he received Dr.
evaluation after student X started the 2014-2015 school year in September, but he had the sense that the parents were not interested in a District placement (Tr.1112;1116;1301) even though the parents had received the report in August (Tr.1121). He explained that the recommendation for specialized reading on the June 5, 2014 IEP was different than the Resource Room (Tr.1153), but if student X needed Resource Room, then it could have been added (Tr.1217). He explained that the writing goal for student X to spell 50 new high frequency or contents words every two weeks (Exh. 11 at 7) would have been assessed by classroom tests every two weeks (Tr.1155). He stressed that AT would be helpful even if student X could not read the text on a software because technology advanced to the extent that text to speech software could read the text that student X could not (Tr.1182-3). He stated that "Kurzweil" text to speech, "Dragon Naturally Speaking" speech to text software and "ClaroRead" Standard, text to speech were recommended for student X (Tr.1186), despite the AT evaluation (Exh. 20 at 2) that indicated intermitant success with student's use of voice recognition (Tr. 1187). He explained that PAF was not placed on the 2014-2015 IEP to give teacher flexibility to use Fast Forward or Read 180 if student X did not progress with PAF (Tr.1207;1316). He noted that he was trained in PAF and Wilson, both research based programs, but new innovations and new methodologies could be used by the teachers with student X if he was not meeting his IEP goals (Tr.1213). He recalled that there was no discussion of a more restrictive placement of a NPS on the 2015-2016 IEP because the District could provide the more restrictive placement in the ELA class (Tr.1235). He recalled a discussion of Dr. report during the June 1, 2015 IEP meeting and the parent reported student X's anxiety by chewing his shirt and need for individual assistance, but he opined that student X was anxious at home and not at school based on Ms. input and the input from Windward on how well student X performs in class (Tr.1238). He stated that the team disagreed with Dr. conclusion that student X was a child with significant social and emotional deficits who needed a small environment (Tr.1242), but he noted a was assigned to aid student X's transition back to the District public school then as soon as the school year started there would have been assessment for further services to address student X's behavior (Tr.1243). He stated that he did not recall a discussion of the social or emotional impact that a consultant teacher might have on student X for mainstream math (Tr.1254). He explained that reading and writing skills were taught in the ELA class, in the special class period of specialized instruction and a vibrant mainstream class environment for the 2015-2016 school year (Tr.1279), and that the students in the fourth grade special education classes were grouped with children with similar needs (Tr.1284). He opined that because student X was very bright he could gain confidence in math, science, social studies where he would achieve success (Tr.1286). He stated that he could not explain the percentage of time a scribe would be utilized to write for student X in a general education class (Tr.1292;1295). He opined that student X would not be stigmatized by a consultant teacher for the 2015-2016 school year as he was on an upward trajectory from the Windward and that student X preferred an adult to support him (Tr.1333). He stated that he was not aware that prism glasses did not address visions issues and did not know the difference between prism glass and non-prism glasses (Tr.1337), but opined that the prism glasses helped student X with tracking (Tr.1342).
THE PARENTS' CASE
The parents; Dr. , and CSE Liaison to Windward testified in support of the parents' claim for direct funding for the unilateral placement of student X in the Windward. The parents maintained that the District failed to provide a FAPE for the 2014-2015 school year and that CSE failed to offer an appropriate program as the offered program was not "a small classroom setting that works at his skill level rather than his grade level" and the IEP failed to include counseling services despite student X's anxiety, low self-esteem and issues with attention (Exh. 67 at 3). The parents argued that the CSE failed to provide student X with a functional behavior assessment ("FBA") and a behavioral intervention plan ("BIP") despite "attempts to distract his instructors, frequent fidgeting, and sensory seeking behavior"(Exh. 67 at 3). The parents asserted that the IPE failed to provide any behavior supports and lacked any goals or objectives pertaining to interfering actions and also lacked any recommendation of sensory tools or equipment (Id.). The parents stated they were opposed to reliance on technology regarding the 2014-2015 program and expressed concerns at the June 5, 2014 IEP meeting and by the letter dated August 14, 2014. The parent stated that despite a letter from the District to reconsider the placement and IEP and offer additional goals there was no IEP meeting for the 2014-2015 school year (Exh. 67 at 4). The parents objected to the academic and goals and failed to recommend Special Education Teacher Support Services (SETSS) despite his delayed functioning levels (Id.). The parents asserted that the IEP failed to include focusing goals or social/ emotional goals and objected to the testing modification and asserted the management needs were insufficient (Exh. 67 at 5). The parents asserted that the District failed to offer FAPE for the 2015-2016 because they felt that neither the 12:1+1 Language Arts class nor the regular education class were appropriate as student X required "direct instruction in a small group of similarly situated students for all his academic subjects" ( Exh. 67 at 6). The parents asserted that they did not receive the 2015-2016 IEP until July 28, 2015 despite the fact that student X was a 12-month student and while there were proposed amendments, the parents considered the proposed program deficient (Exh. 67 at 5). The parents argued that there was no transition provided for student X back to public school and objected to the reading, writing and math goals and objected to the lack of specific reading and writing program (Exh. 67 at 7). The parents asserted that the recommendation considering assistive technology on October was made in opposition to the parent's concerns that student X achieve basic reading and writing skills before using assistive technology (Id.). The parents sought direct funding for tuition at Windward for 2014-2015 and 2015-2016 (Exh. 67 at 89). The parents believed that the placement at the Windward was appropriate and that the equities favored them (Id).
testified that he has a Ph.D. in clinical psychology and is board certified in pediatric in 2014 (Tr.1402) He stated that he first evaluated student X on June 14, 2014 (Exh. 23), when student X was 8 years and 7 months and reviewed the intake questionnaire from the parents and teacher and teacher checklist (Tr.1406). He observed that student X was very inattentive and required a lot of redirection (Tr.1407). He explained that based on the WISC-IV full scale score of student X was very bright with verbal scores, perceptual reasoning, working memory and processing speed and contrasted the WISC-IV scores with the W-J III scores and noted student X had scores in reading, writing and reading comprehension (Tr.1409). He determined that student X was able to understand what was read to him at a very high level as his oral comprehension was (Id.). He noted student X's writing and spelling scores were (Id.).
He explained that reading involved phonological processing, orthographic processing and rapid naming (Tr.1412). He defined phonological processing as the understanding of phonemes, orthographic processing related to visual symbol and noted that student X's inattention compared with the findings of student X's teachers (Tr.1413;1417).
He noted that student X's phonological processing skills were slow and his rapid naming and fluency skills were very low (Tr.1418). He stressed that student X had a double deficit with problems in both decoding and rapid names (Id.). He related that student X had problems understanding the visual representation of words (Tr.1421), and compared his findings with student X's teacher's input of problems with executive functioning (finishing school work and organizing tasks and losing supplies)(Id.).
Dr. further explained that student X's processing speed was very low and his auditory processing was problematic and diagnosed student X with a reading disorder, a disorder of written expression and ADHD and borderline anxiety (Tr.1421). He stressed that these diagnoses have a very serious effect on his ability to function in the classroom (Tr.1426). He opined that student X needed to feel safe in the classroom and with "his borderline or lower decoding .. .he's very aware that he's not doing what his mind says he is able to do ... the classroom setting has to be very supportive"(Tr.1427). Dr. opined that Windward used tier three PAF, "specifically designed for his type of ... disability"(Tr.1429). He opined that the goals on the 2104-2015 IIE were inappropriate because the ability "to decode ten newly introduced words monthly with initial and final blends" was an "unrealistic goal when somebody has dyslexia" (Exh. 11 at 6;Tr.1433;2309;2317). He opined that the second goal to "read words with suffixes" (Exh. 11 at 8) was not appropriate for someone with a double-deficit dyslexia, but it was an appropriate third grade goal in a general education class (Tr.1434). He opined that goal five that listed "scientifically-based instructional approach" without also listing accommodations for a student with severe dyslexia was unrealistic (Tr. 1435). He opined that the writing goals was also unrealistic because of his rapid naming and orthographic processing issues; he stressed that if student X "could learn 50 new words, highfrequency words, he would. He basically has superior intelligence"(Tr.1436). He opined that the 2014-2015 special education program of 2 periods in a small program in Language Arts and reading instruction as well as 40 minutes of "specialized reading instruction" were insufficient (Tr.1437).
When questioned as to the appropriateness of the 2015-2016 IEP (Exh. 61 at 9), Dr. again opined that the goals were more specific to the student's problems. The program provided more individual attention with specialized reading instruction with at staffing ratio of 5:1 and an hour of individualized specialized reading instruction twice a week in, a special class in a language arts with a staffing ratio of 12:1+1 and direct consultant teaching services for 40 minutes in a 6-day cycle (Tr.1443-1444). He opined that student X would not function well in a general education environment for the academic subjects (Tr.1447). He explained that the addition of a scribe in a general education class would not address student X's problems in reading and writing skills as a scribe merely addressed the fine motor skills deficit (Tr.1449). He noted that student X could not read the notes from the scribe and required a reading specialist (Tr.1450).
On cross Dr. stated that he did not use the BRIEF questionnaire for student X's teachers and parent as he did not require the large amount of information sought by the BRIEF to assess student X 's executive functioning deficits (Tr.1466). He stated that he provided student X's teachers with the Child Behavior Checklist from the Achenbach, but he did not request that student X's teachers complete the standardized scale as he received sufficient information from student X's parents (Tr.1469). He maintained that the teachers input matched the parents' report that student X struggled with executive functioning, orthographic and the self-esteem issues associated with superior intelligence and borderline reading skills (Tr.1470;1476). He reviewed Anna Fagans' checklist (Exh. 38 at 3) and noted that anxiousness was a major part of student X's difficulty (Tr.1485). He stated that the parents as well as his teacher reported student X's anxiety increased and he did not want to go to school (Tr.1487). He recalled that after student X attended Windward both the parents and the staff at Windward reported positive behavior (Tr.1488).
He stated that student X's difficulty was demonstrated in the 2013-2014 report card (Exh. 14 at 1) with scores of 1 meaning an inability to meet New York State Standards in reading and writing (Tr.1498), and opined that the score of 3 in math did not support a placement in a general education environment for science and social studies because socially and emotionally student X could not cope (Tr.1499). He disagreed with Ms. comments on the report card (Exh. 14 at 3) that student X "made a huge amount of progress" and " has excellent understanding of what he reads" because student X's tests revealed a level of reading comprehension (Tr.1505). He disagreed with the comment "penmanship improved nicely" as student X's did not have the skills to write and was provided with a scribe (Tr.1506). He maintained that based on his testing student X made miniscule progress during 2013-2014 (Tr.1510). He opined that the District may have purchased the PAF program, but it was not addressing student X's needs (Tr.1511). He described the amount of anxiety student X had in the classroom as reported by the parents was not reflected in the report card (Id.).
When questioned as to the progress student X made at Windward during the 2014-2015 school year (Exh. 55 at 2), Dr. stated that some scores decreased from fall of 2014 to Spring of 2015, but more scores increased in the Coding Test for Reading and the Coding Test for Spelling and he attributed the variability to student X's double dyslexia and memory issues (Tr.1517). He explained that student X remained in the t percentile in the Standard 10 Reading score (Exh. 55 at 2) in the spring of 2015 at Windward due to his reading needs (Tr.1531), but opined that for a fifth grader who reads on a grade level to increase to a grade level in reading comprehension was significant improvement from someone with student X's profile (Tr.1534). He opined that student X required a private school with more intensive 1:1 and a general education program was not sufficient support (Tr.1538). He explained that student X's physical writing was assessed by the Beery and he found student X level (Tr.1542). He further explained that student X's handwriting was assessed on the WoodcockJohnson and student X was only required to write one sentence which had spelling errors and a GE of (Tr.1546), and that student X had difficulty with the physical act of writing (Tr.1552).
When questioned as to the affect of the diagnosis of static encephalopathy on student X's ability to read and write and the ability of the education system to remediate his problems, Dr. stated that the correct intervention could remediate the condition (Tr.1560), and intervention was required (Tr.1566). He explained that some children with learning disabilities not necessarily the result of static encephalopathy could with the right intervention substitute pathways so reading could happen (Tr.1567). He explained that there was no problem with student X's oral comprehension versus his reading comprehension, but his dyslexia was the cause of the problem (Tr.1568), and that student X's phonological processing deficits contributed to his problems with decoding and word attack (Tr.1570).
He explained that student X had a double-deficit as he had both phonological and orthographic dyslexia and both require different instruction (Tr.2277-2278). He stated that he could only speculate as to the benefit of high frequency words to address student X's double deficit (Tr.2281). He stated that there was a typo in his report because student X's score in elision was and not (Tr.2295). He recalled that student X did not use his prism glasses when he assessed reading as the font size was not a problem (Tr.2303). He explained that to learn initial and final blends were the easiest aspect of blending and opined that student X was unable to decode nine out of ten newly introduced words monthly with initial and final blends (Tr.2323) because student X had a grade reading level and did not understand what an open-vowel was (Tr.2325).
He opined that student X would not master r-controlled and open syllable words based on his assessment of student X at the end of second grade (Tr.2333;2343) and opined that the goals were inappropriate based on student X's intense dyslexia and anxiety (Tr.2334;2345). He explained that his report included recommended programs, (Tr.2352) but that he recommended a private school setting with expertise in dealing with learning disability (Tr.2359). He further explained that student X's anxious, depressed, somatic complaints were greater than 90 percent of the population (Tr.2356). He explained that based on the CBCL and his testing that student X has severe difficulties and anxieties in his second grade program (Tr.2367). He acknowledged that he did not have any objective data to establish that student X progressed in his reading program at Windward during the 2014-2015 school year (Tr.2370), but opined that based on some of the scores he observed that student X did better at Windward than he would have had he stayed in public school (Tr.2371).
, a holder of multiple degrees and certificates in special education, employed as the CSE liaison for Windward (Tr.1576). He stated that Windward was a school that accepts only students with average to superior intelligence, who have not been successful in learning to read and the school follows the Orton-Gillingham methodology as well as PAF for students with a language based learning disability including dyslexia in a structured sequential multisensory instruction in reading, writing and spelling (Tr.1579;1598). He noted that Windward addressed these learning deficits through Orton Gillingham throughout the day as curriculum coordinators in each content area (math, science, social studies and language arts) ensured that the children were presented with language-based instruction throughout the day (Tr.1580). He explained that PAF and Merrill readers were presented to each child in a structured way so that instruction was direct and explicit and the skill based program was specifically geared to that child, and that Windward follows the New York State curriculum for language arts, math, science and social studies (Tr.1581). He explained that Windward teachers were special education teachers, and teaching assistants had Master's degrees and noted that the teaching staff were certified in the Windward Teaching Training Institute (Tr.1583;1788), as all the teachers had to retake the PAF course every five years (Tr.1803). He stressed that there were small classes (two to thirteen students) and each class was taught by two teachers and that students were grouped homogenously for math, reading, writing and Orton Gillingham skills each day and grouped heterogeneously for science and social studies (Tr.1581;1799). He noted that all the children at Windward were bright to average range in terms of cognitive functioning, but had difficulty with skill development in reading, writing, spelling and math who benefited from a structured, sequential, instructional program (Tr.1598), and the reason all the teachers were trained in PAF and not just the reading and writing teachers was so that when the science and social studies teachers introduce new vocabulary they used the same strategies to help student X break down words into syllables (Tr.1797).
Mr. stated that at Windward student X was in a class in his three language arts (reading, writing and Orton Gillingham skills) for the 2014-2015 school year with five other children, with a teacher and an assistant teacher and was placed in a math class with eight children and with a teacher and an assistant teacher and his social studies, science and homeroom had thirteen children. While there was skill development, the focus was on content areas in science and social studies (Tr.1593).
Mr. stated that for the 2015-2016 student X was in a class in language arts with eight students with a teacher and an assistant teacher and he was placed in a group of twelve children for math, social studies, science and homeroom with a teacher and an assistant teacher in each class. He stated that student X was then moved up to the middle level group for math as he was strong in thinking and reasoning and that he was grouped with children who were also strong in math (Tr.1597;1600). He stressed that student X was grouped with other children who needed significant support for skill development and in language arts he was grouped with children who were working on the same level in the PAF and Merrill readers (Tr.1599). He noted that student X received an additional period of 1:1 tutoring support in skill development for decoding and spelling and reading twice a week as well as the three language arts (writing, reading and skills) classes twice a week (Tr.1613), as the rate of progress to improve both fluency, decoding and spelling (Tr.1622).
Mr. explained that the writing teachers were trained in the Teaching Basic Writing Skills course offered by the Windward Teacher Training Institute based on the Judy Hockman program and that the children were taught to write fragments and full sentences and that student X was working at the sentence level and the paragraph level with a topic sentence and four supporting details and a concluding sentence (Tr.1608). He noted student X was taught writing in a small class where he brainstormed with other children and used a graphic organizer and that the writing, reading and skills programs were linked so that student X worked as a third grader for the 2014-2015 school year with other third grade children in the same reading, writing and skills class and that reading and spelling were linked as children were taught skills for decoding and skills and strategies to spell the word they were trying to decode (Tr.1610). He noted that student X was given proficiency tests under PAF and was required to read orally and answer comprehension questions to ensure proficiency in Coding and spelling tests (Tr.1612).
Mr. recalled that student X was evaluated in April 2014 as part of the admissions process and he knew some short-vowel sounds and could slowly and laboriously decode CVC words, but he was significantly behind based on age and grade level performance in decoding, spelling and writing based on his intelligence (Tr.1616). He recollected that student X wrote a simple sentence as part of his admissions process and had unique spelling and required dictation to say what he wanted to say (Id.). He related that student X was placed in the mid level math group for 2014-2015 as he had the ability to do multiplication and division, yet he needed structured, sequential instruction (Tr.1617). He explained that student X's strengths were his ability to listen, his understanding of complex language and his ability to answer complex questions; his weaknesses were his impulsivity, inattention and his inability to write and to organize his writing and his problems with decoding, fluency and spelling (Tr.1625). He opined that student X required structured and sequenced instruction (Tr.1626). He explained that student X's deficits were targeted in each class with structured, sequential, languagebased multisensory instruction to improve his decoded, spelling, fluency and accuracy (Tr.1626). He stated that the Windward teachers in social studies, science, math reinforced the skills taught in language arts and that the small classes with the assistant teachers provided individual attention (Tr.1628;1631). He recalled that student X was not able to write legible print, but he had learned cursive writing which assisted him in decoding and spelling (Tr. 1629). He explained that handwriting skills were worked on during the 2014-2015 and 2015-2016 school year and spelling needs were addressed by PAF and Merrill Readers program (Id.). He noted that all of student X's classes had two teachers (head and assistant) and both teachers were trained in Windward and knew how to apply strategies to allow student X to succeed (Tr. 1632). He related that student X required support from a teacher for skill development (Id.). He noted that Windward had a speech pathologist who interacted with the teaching staff and that the teachers were required to take a language and learning course in addition to the PAF and Merrill programs (Tr.1633), so that all the student's language needs were addressed (Tr.1634), as PAF strategies for new vocabulary. He recalled that student X did not receive related services at Windward, but that there were psychologists and counselors to address social and emotional concerns (Tr.1635).
Mr. recalled that student X started Windward with Book C, and moved to Book E, grade skills, but noted that progress was very slow as student X needed "direct exposure to sequential instruction"(Tr.1637). He explained that student X was impulsive and wanted to guess rather than apply strategies, but he opined student X progressed with his automaticity with short-vowel sounds with consonants and diagraphs, recognizing and reading red words and words with common suffixes (Tr.1637). He explained that student X progressed with his understanding of basic sentence structure (Tr.1638). He noted that student X started Windward in the grade level in math with the ability to compute single digit numbers, but progressed to compute two, three and four digit numbers in addition and subtraction (Tr.1369). He stated that the standardized test of Stanford 10 was administered in September 2014 and the Windward Coding test was administered in April 2014 and in May 2015, (Exh. 55 at 2) the third grade test was conducted (Tr.1640). He explained that student X's teacher told him that student X could not meaningfully interact with the third grade text in the May 27, 2015 assessment (Tr.1624) and opined that while the scores showed some improvement from September 2014 through September 2015, there was a problem with student X interacting with the text of the Gray Oral Reading (Tr.1642). He opined that student X was a strong math student as evidenced by September 2014 untimed Stanford math test as student X achieved a score in the percentile and in June 2015 untimed Stanford math test student X scored in the percentile (Tr.1643). He stated that student X moved from the middle level group in the third grade math class to the highest group in math in the fourth grade (Tr.1644).
Mr. explained the decrease in the Windward Coding tests from the admission test date of April 2014 when student X was correct with percent on CVC words and the May 2015 test (Exh. 55 at 2), student X was percent correct on CVC words as student X had a tendency to guess and was impulsive, but noted that student X achieved a percent correct ratio in CCVC words in May 2015 (Exh. 55 at 2), which increased from a percent correct ratio in April 2014 (Tr.1645). He noted that student X increased from to percent correct in R-controlled words and opined that student X made significant gains in spelling CVC words from percent to percent to spell CVC words and improved from none to percent with CCVCC word and with silent e words he improved from none to percent (Tr.1647). He opined that over time student X made gains in the skills that he was taught , but he noted in language arts that progress was slow and noted that student X was in the language arts class (Tr.1648). He explained that while student X was in the group on language arts, student X was not the student in his group (Tr.1649). He opined that student X was moving through PAF and his teachers for both years noted that student X was eager to read orally even though he knew it was hard work to read and was willing to read in front of the class (Tr.1650).
Mr. explained that parent training was available and in addition to parent/teacher conferences, parents corresponded by email and telephone throughout the school year (Tr.1652). He recalled that student X's homework was consistently done (Tr.1653), but not always accurately (Tr.1654). He stated that as Windward provided direct, multisensory, structured, sequential instruction there was no need for AT and that teachers worked with children on skills in an organized way so there was no need to access computers (Tr.1656-7). He opined that student X was a slow processer and had to work hard to complete the strategies he was taught and that to integrate technology would be counterproductive (Tr.1658). He stressed that while student X might have been exposed to Book D and E of the Merrill readers in second grade, student X did not have the opportunity for sequential review and practice throughout the day and without practice throughout the day that student X would lose skills he gained from exposure to Books C to E (Tr.1659). He opined that student X required small classes with structured, sequential instruction throughout the school day delivered by highly trained teachers to be successful in classes where he was exposed to content material at his age and grade level (Tr.1661).
On cross Mr. acknowledged that there were no standardized testing based on proficiency level in 2015-2016 (Tr.1708). He stressed that PAF was not only taught in the language arts block with the focus on reading, writing and spelling, but PAF skills were used in social, social studies and math as the non-language teachers used the same strategies to help student X learn the same skills he learned in language arts (Tr.1714). He noted that PAF strategies were used to introduce new vocabulary in science, social studies and math and that consistent PAF strategies were used in language arts classes, but the focus in the language arts classes was on skills development in reading, writing and spelling (Tr.1716;1797). He related that student X was bright and had access to grade level content and skills, but he could not read, write and spell at a level that allowed him to access information through grade level textbooks (Tr.1719). He stated that student X was an active participant in science and social studies as he could listen and access content and skills in a heterogeneous group, despite the fact that he had difficulty with reading, writing and spelling (Tr.1719). He explained that the children in the math, and language arts classes were grouped homogenously based on performance levels in skill levels (Tr.1720), and all the children at Windward were grouped by grade level so all fourth grade children were grouped with other fourth graders throughout the day (Tr.1723). He explained that the classes were capped at 13 children with two teachers (Tr.1724), but most classes were 9 or 10 children (Tr.1725) as the Windward program provided small classes with lots of teacher support (Tr.1727), and that student X displayed inattention by playing with his glasses even in a small class when he observed student X playing with his glasses a few times during a language arts class (Tr.1738).
On cross Mr. stressed that the focus on the children was to teach reading, writing and spelling to be successful reading in general education when children leave Windward, and so there was no focus in technology (Tr.1731;1745), and that the focus was to teach student X to use pen and paper to learn writing skills and with direct, sequential instruction he progressed in writing (Tr.1740), because he needed to know how to read and write to leave Windward (Tr.1744). He explained that while student X was unable to produce written work that reflected his intelligence, he was taught strategies to expand and elaborate sentences and to organize information into paragraphs with graphic organizers (Tr.1742). He stated that student X was able to use cursive writing to express sentences and paragraphs, but he still could not spell (Tr.1743). He stressed that student X's handwriting writing needs in terms of fine and graphomotor goals were addressed at Windward (Tr.1750). He opined that student X was more comfortable with cursive writing than print and while cursive writing was difficult, student X was able to produce legible writing and his pace improved (Tr.1751). He recalled that if a teacher was present to assist student X when he would dictate a sentence and then read back the sentence so he was able to write the sentence student X was able to focus more on writing (Tr.1752).
Mr. Beardsley recalled that he participated in the June 1, 2015 CSE meeting and that he provided to the CSE student X's report card and more current progress report available (Tr.1754). He stated that while the May 2015 spring testing was completed, the scores were not entered into the software and he did not have the scores to provide to the CSE on June 1, 2015 (Tr.1755;1761), but he did provide a proficiency test to the CSE (Tr.1771). He explained that the Windward Coding Spelling and Reading tests and the Stanford 10 Reading and Math scores were done on April 2014 for student X's admission, but were not done again until May 2015 (Tr.1770;Exh. 55 at 2), and that only proficiency-based measures from the PAF program were done in September 2014 (Tr. 1769). He noted that the rate of progress for student X was measured on a review of test data and teacher review of student performance with the language arts coordinator (Tr. 1775). He stressed that while the addition of a reading session to the three mandatory language arts classes was atypical, there were a number of children who were provided with 1:1 tutorial support with a Windward teacher because of concern with the rate of progress (Tr.1776). He was unsure when the decision to add an additional tutoring session for student X was made, but recalled it was the end of September 2015(Tr.1778). He stated that he was not privy to information from the parents or the District about student X's return for 2015-2016 school year (Tr.1778) and he was not aware of the parents' intentions to place student X at Windward for the 2015-2016 school year at the June 1, 2015 CSE meeting (Tr.1780;1784). He maintained that he provided the June 1, 2015 CSE meeting with student X's skill level in reading, decoding and fluency that he had performed as part of his Windward program (Tr.1786;1801).
The parent testified that he first noticed that student X was having difficulties in preschool and that at age four he enrolled him for kindergarten in the District in a selfcontained class and that his son repeated Kindergarten because he was not advancing (Tr.1812). He recalled that in first grade his son was not reading (Tr.1816). He noted that for first grade student X was placed in a small class with four to six children and that student X received and (Tr. 1822). He stated that student X was uniquely dyslexic in that student X not only transposed letters, but added letters, so he concluded that student X was "double dyslexic" and yet he observed a small amount of progress in first grade (Tr.1824), so he wanted his son to be mainstreamed for second grade and recalled that Mr. told him that Ms. was going to be trained in PAF, but as the second grade year concluded his son was still not able to read (Tr.1819). He related that Ms. told him at a parent teacher conference meeting that according the Star Reading testing that his son's score lowered (Tr.1819;2077;2085). He described student X as happy until second grade, but that during the second grade student X's behavior started to deteriorate and he started to bite his clothes and refer to himself as "the dumbest kid in class"(Tr.1820). He opined that the decline in student X's emotional state was due to the number of TAs and his relationship with Ms. (Id.). He recalled that his son received and (Tr.1822), but that in second grade he was aware of his son's double dyslexia as he did not merely transpose letters, but he added letters (Tr.1824). He stated that he was concerned that his son was the guinea pig as Ms. was a new teacher who had just learned PAF (Tr.1831). He opined that a single course of PAF was insufficient to teach his son's double dyslexia (Tr.1832;1852). He stated that Ms. told him during parent/teacher meetings that his son was still biting his shirt and sitting on his toes and could do nothing without his scribe (Tr.1833). He recalled that Ms. told him the Minute Math was the hardest part of student X's day because he knew the math, but he could not read the math unlike the rest of the class (Tr.1838-1839). He recalled that he listened to telephone conversations from Ms. and his wife regarding student X's difficulty in initiating work and Ms. who communicated that there was excessive biting (Tr.1847). He opined that his son was aware of his lack of progress and Ms. frustration with him (Tr.1850). He recalled that there was no during the 2014-2015 school year to address his self-esteem issues as he was aware of his inability to read and write (Tr.1855), or his emotional issues evidenced by biting his shirt daily to the extent that the shirt was wet (Tr.1856). He recalled that his son was happy to go to school in the beginning of second grade, but did not want to go to school at the end of second grade (Tr.1859). He recalled that he attended the June 5, 2014 IEP meeting and that Ms. told him that his son's dyslexia was too complex for her to teach (Tr.1861;1867). He recalled that he told the CSE team that his son was unable to read (Tr.1869). He stressed that after a discussion of AT including headphone, microphones, scanners, laptops and iPads he told the team that he wanted his son to read independently (Tr.1871). He recollected that he lost confidence with the CSE as the same failed recommendation for second grade was repeated in third grade and that he sought an independent evaluation (Tr.1874). He opined that wearing a headphone and microphone and using a laptop would stoplight his son's disabilities (Tr.1875), and he objected to a scanner, Dragon Naturally Speaking, headphones and a laptop because his son could not read and technology could not teach him to read (Tr.1876). He stated that he did not recall a discussion of his son's need for sensory input or anxiety as evidenced by biting his shirt (Id.). He recalled that he told Mr. that technology was part of the future, but it was not appropriate to forego intensive reading instruction for AT (Tr.1883). He stated that he did not recall another IEP meeting after June 5, 2014 for the 2014-2015 school year (Tr.1902). He recalled that in the spring of 2014, he researched other schools and Windward accepts only severely dyslexic learning disabled students (Tr.1905). He noted that his son attended a town camp during the summer of 2014 (Tr.1907), and opined that his son progressed at Windward during the 2014-2015 school year as he was very happy and eager to go to school and he started to read, do his math work independently and his handwriting improved (Tr.1908;1911;1912). He stressed that his son loved going to Windward as everyone was included and the emphasis was on the benefits of being dyslexic instead of the disability (Id.) He stressed that his son no longer bit his clothes or sat on his toes (Tr.1909). He opined that his son's cursive writing was neater than his printing (Tr.1912), and that his son's reading was more fluent (Tr.1914).
The parent recalled that he participated in the June 1, 2015 IEP and recalled that Mr. also participated and that the team felt positive with PAF, and recalled that the psychologist who participated could not understand his son's anxiety as Mr. described his son as a happy child (Tr.1917). He recalled that Ms. and Ms.
described student X's anxiety as he felt inferior and so would bite his shirt in the general education environment (Tr.1918). He further recalled a discussion about AT and that he stated that he did not approve of AT in lieu of teaching his son to read independently (Tr.1920). He opined that the June 1, 2015 IEP team did not understand his son and his son's anxiety only worsened as he was more aware of his inability to read (Tr.1922). He opined that the team did not place PAF as the actual scientifically based reading program (Tr.1927).
On cross the parent stated that his son could not read, but his son loved his Kindergarten teacher and in first grade there was no reading test, but he became aware that his son could not read in second grade (Tr.1969). He stated that his son did not learn to read in second grade as PAF was not provided for multiple periods per day (Tr.1972). He stated that his son could not retain the information provided by Ms. Kinnen in second grade in the "I Can" books as he repeated the "I Can" books in third grade (Tr.1976;1980). He stated that his son was a nonreader in second grade, and made no progress, (Tr.2016;2019), but he became a reader in third grade (Tr.1978). He stated that after four years in the District he lost hope (Tr.1982;2093). He opined that there was no plan to teach his son to read, but only to provide his son with a computer and an aide (Id.). He recalled that he attended the June 5, 2014 IEP meeting and that told him that student X had such complex dyslexia that it was beyond her ability to teach (Tr.1987-88;2020). He stated that double dyslexia required intensive reading, redirection and repetition and the amount of time for PAF recommended for third grade was insufficient (Tr.1992). He opined that in the general education class with headphones and computers his son would be lost and scared and self-conscious (Tr.1994;2024). He opined that AT for the majority of the day could not overcome the lack of reading instruction (Tr.1997). He stressed that he opposed technology at the June 5, 2014 IEP meeting because his son could not read and technology could not teach him to read (Tr.2000). He explained that he was opposed to technology until his son could read (Tr.2002,2007,2012).
The parent recalled that he participated in the June 1, 2015 IEP and that at the end of the meeting Mr. agreed to let go of AT (Tr. 2032), and that he received the IEP (Exh. 63) on July 28, 2015 (Tr.2036). He related that his attorney wrote to Mr. to express his concerns on August 26, 2015, but no new IEP meeting was scheduled until September 1, 2015 (Exh. 64;Tr.2042). He recalled that the first week of September 2015 was too late to make changes in the IEP as school had started (Tr.2044). He stated that he was unable to meet with the IEP team on September 1, 2015, (Tr.2046) because he had to make a decision regarding where to send his son for the 2015-2016 school year (Tr.2048). He opined that his son used the prism glasses but the prism glasses did not have a major effect on his reading and writing (Tr.2055;2059). He recalled that the June 1, 2015 IEP did write PAF in the IEP (Tr.2061). He recalled that Mr. told the team that his son required an additional period of 1:1 reading because his son was such a level reader and his severe dyslexia (Tr.2063-64). He stated that he was not aware of a discussion of specialized reading instruction and how this instruction differed from resource room (Tr.20174). He recalled that when he received the June 1, 2015 IEP in July 2015 he thought that it was a draft IEP (Tr.2081). He opined that the IEPs for the 20142015 and 2015-2016 school years did not address his son's disabilities and there was no commitment to PAF or any multisensory reading program and that a single class of the PAF program was insufficient (Tr.2089;2090-2091).
The parent stated that she was a special education teacher with a Masters' degree in special education and that she was currently a teacher in the Bronx, New York (Tr.2097). She stated that she took courses in PAF at Windward in "Syllabication", "Where to Begin Instruction" (Exh. 56) after Ms. Kinnen told her that her son was dyslexic and that she, Ms. took a PAF course and she thought PAF would be a good method to teach her son to read (Tr.2100). She recalled that Ms. and she had an agreement that Ms. would text pages of PAF word lists that her son worked on so that she could monitor the work at home with her son (Tr.2103). She stated that second grade was a very difficult year for her son and Ms. told her that her son was confrontational and frustrated (Tr.2107). She stated that both Ms. and Ms.
told her that they were concerned about her son's lack of progress (Tr.2108). She stated that she was grateful that Ms. told her that PAF would be able to help teach her dyslexic son, but that Ms. told her that she was unable to provide proper PAF instruction in 80 minutes (Tr.2110). She stated that Ms. told her that her son was aggressive and anxious and biting his clothes so that his shirt was wet (Tr.2112). She explained that a TA her son liked had left and the new interim TA was not acceptable to her son and her son could not work in Ms. class because he would not let the new TA near him (Tr.2114). She recalled that another special education teacher that her son had worked with in prior year took over for the new TA (Tr.2115), but in January 2014 there were daily telephone calls from Ms. or Ms. about his negative behavior (Tr.2116). She opined that the District did not perform the complete initial test for PAF as the placement test (Exh. 25) was not the full test (Tr.2121). She stated that Ms. telephoned her to state that her son lashed out (Tr.2122). She opined that there was no writing taught to her son during the 2014-2015 school year (Tr.2124).
The parent recalled that she participated in the June 5, 2014 IEP meeting and that she presented the team with the District's psychological evaluation (Exh. 16), but did not recall a discussion regarding the psychological evaluation (Tr.2128;2155). She stated that there was no discussion of the WISC scores (Tr.2130). She recalled that she took notes (Exh. 35) and that she was concerned that PAF was not listed on the IEP only a scientifically based program and she opined that PAF was the best fit for her son's disability (Tr.2143). She stated that she was concerned that there were only three reading goals (Tr.2144), and the IEP did not deal with the emotional component of her son who needed a scribe at all times to function (Tr.2145). She stated that she told the team that she did not want AT because her son could not read (Tr.2147). She explained that as a teacher she understood the pressures that teachers and their students were under pressure to progress and she knew that AT was introduced for her son so he would progress, but his inability to articulate would interfere with his ability to use Dragon Speak as Ms.
confirmed with her (Tr.2149). She stated that she told the team that she had received telephone calls from Ms. that her son was angry and aggressive and she told the team that the IEP failed to address her son's social/emotional issues (Tr.2150). She stated she told the team that she was concerned that the reading goals were vague and did not address her son's dyslexia (Tr.2151). She stated that she told the team her biggest concern was the inconsistency in her son's reading program if PAF was not used and then her next concern was how AT would be implemented with her son. She stated that she asked the team whether her son be taken from the resource room to use AT alone or whether her son would be in class alone sitting by a computer and questioned that team about the stigmatizing effect of AT (Id.). She stated that the various team members voiced their concerns as Ms. and her son's teachers told the team that his current program was causing him stress and Mr. and the psychologist were set to continue the current program (Tr.2153).
The parent stated that she recalled that she received the draft IEP (Exh. 36) before she attended the meeting (Tr.2154). She recalled that she told the team that as the demands of the curriculum increased her son's problems exacerbated as the severe dyslexia widened the gap of deficits in reading (Tr.2156). She stated that she told the team that her son would have problems using the keyboard as he had problems with physical development from wearing braces on his legs and toe walking and that her son had emotional problems as he knew that his friends advanced in grade and yet her was held back (Tr. at 2157). She opined that she felt the District had his best interest at heart, but the District was unable to teach her son to read (Tr.2158). When she received the final version of the IEP there was only a slight change from the draft and that did not address her son's real issues as AT was a component and she wanted her son to read before AT was utilized (Tr.2159).
The parent recalled that she participated in the June 1, 2015 IEP meeting and that the team was more receptive to placing PAF on the IEP (Tr.2162). She opined that again the IEP (Exh. 61) did not contain the information that she presented the team and that while Dr. participated by Skype the team did not understand the extend of her son's reading deficits, and was concerned that PAF was provided periodically and was not integrated (Tr.2163). She recollected that the TA was part of the IEP and her son was still able only to read some blends and diagraphs (Tr.2164) She stated that when she received that final IEP she was concerned that PAF was not placed on the reading goal (Exh. 61 at
10) and that she felt the IEP was a step backwards and her son could not afford any more regression (Tr.2166). She opined that her son's progress was very slow for the 2015-2016, as he was still placed in the group for his reading, but he progressed in math and his comprehension improved (Tr.2168). She further opined that he progressed emotionally and socially as his anxiety which had manifested in toe walking was gone and he had made friends (Id.).
On cross the parent stated that both her son's second grade teachers knew he had a severe disability and that it was difficult in a public school to provide the individual attention he needed (Tr.2171). She recalled that Ms. had home schooled her son for that reason and that Ms. had told her that Student X was worse than her son (Tr.2172). She explained that the writing program was integral to PAF (Tr.2173). She recalled that her son's teachers at Windward used select passages to teach social studies or science because the text must be controlled (Tr.2177). She stressed that her son had strengths and could orally grasp grade level material, but to read required laborious work as he constantly broke apart syllables to read a word (Tr.2180), but opined that his selfesteem improved as he did not need to chew on bracelets (Tr.2184). She stressed that her greatest concern was that because his learning disability was undiagnosed for so many years that his self-esteem suffered (Tr.2185), and opined that both the 2014-2015 and the 2015-2016 IEPs did not convey the extent of her son's reading disability and as he aged the discrepancies would only grow (Tr.2186). She further explained that her son had difficulty with retaining certain information and that he would lose his mastery of a skills after a break or vacation (Tr.2189), and that even with daily dictation and daily reading Windward staff told her that her son required more PAF and so he was pulled out of gym and art once a week for more review (Tr.2190). The parent stated that her son made several drafts of writing to produce the writing sample (Exh. 73) and she created the writing sample from the first marking period (Tr.2556;2558). She stated that she provided samples of her son's writing from second grade and from Windward (Tr.2563). She opined that her son did not use cursive for his handwriting in second grade, but in third and fourth grades he only used cursive handwriting (Tr.2565). She stated that her son was able to write legibly using cursive writing (Tr. 2566), and opined that the hand writing program was helpful because it provided the structure that her son needed (Tr.2567). She stated that her son did not require a scribe to write for him because he enjoyed writing (Tr.2568) and that while her son's writing was messy if he was writing quickly that her son's writing was still legible (Id.).
On cross the parent stated that in second grade her son was not able to write on grade level, but in a structured writing program at Windward he was able to independently complete his writing assignments (Tr.2570). She stated that page 3, 4 and 6 of Exh. 73 were samples from this snake project book and pages 1 and 2 of Exh. 73 were from samples taken on or about January 26, 2016 at a parent/teacher conference (Tr.2571;2577). She stated that pages 1 and 2 reflected at least a second draft (Tr.2572). She stated that there were erasure marks on pages 1 and 2 because her son reversed his letters and his numbers because of the severity of his dyslexia (Tr.2574). She stated that her son worked very hard on this writing assignment and that he worked very hard on everything that he produces (Tr.2575). She explained that in second grade she was called by his teacher because her son was not able to complete his work, but at Windward there was no calls from his teacher because he was able to complete his assignments in class (Tr.2577). She opined that pages 1 and 2 were the result of a second draft and final version after an initial outline and then first draft (Tr.2579).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school District to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 1400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student’s unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. Section 300.13).
To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1].
The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).
In Application of a Student with a Disability., Appeal No.12-087, the SRO held that an "appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)."
For tuition reimbursement cases a board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Dept. Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also, Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006] cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007]). The District has the burden of proof (including the burden of production and burden of persuasion) to show, by a preponderance of the evidence, that it offered student X a FAPE. § 4404(1)(c); see also M.H. v. N.Y. City Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
2014-2015
The parents maintained that the District failed to provide a FAPE for the 20142015 school year. The parents asserted four specific procedural challenges to the IEP: (1) the IEP annual goals and objectives were vague and overly broad and insufficient; (2) CSE failed to conduct an FBA to evaluate student X's frequent fidgeting and sensory seeking behavior or a BIP and failed to include any behavior supports and lacked any goals or objectives pertaining to interfering behavior and lacked any sensory tools; (3) the IEP did not mandate counseling for student X's anxiety, low self-esteem and issues with attention and failed to recommend SETSS despite his delayed functioning levels and (4) the IEP relied on technology despite expressed concerns at the June 5, 2014 IEP meeting (Exh. 67 at 3-5). The parents asserted that the IEP was substantively inadequate for the following reasons: (1) the program was not appropriate because the class sizes did not meet student X's needs as the 12:1+1 class ratio was mandated only for ELA and so the special education services were reduced; (2) the IEP failed to recommend a specific reading program; (3) the IEP did not reflect Dr. recommendations and did not provide additional testing despite parental consent; (4) the classrooms were at student X's age level, not at his skill level; and (5) the untimely receipt of the IEP (Exh. 67 at 2-5). The parents stated that despite a letter from the District to reconsider the placement and IEP and offer additional goals there was no IEP meeting for the 2014-2015 school year (Exh. 67 at 4).
The SRO considered the type of procedural flaw which would result in a denial of FAPE in the Application of a Student with a Disability., Appeal No.12-146. The SRO noted that not all procedural flaws automatically require a finding of a denial of FAPE. A hearing 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 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 394 Fed. App'x 718, 720, 2010 WL 3242234 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 361 Fed. App'x 156, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 293 Fed. App'x 20, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])."
Claims concerning insufficient evaluations and inappropriate and insufficient IEP The parents' attorney asserted "under Chapter 583 of the Laws of 2007, the District bears the burden of establishing that its recommended educational program is appropriate to meet the student's unique special education. In addition, the law requires that the District truly consider 'any potential harmful effect on the student or on the quality of services that he or she needs' when determining an appropriate placement. 8 NYCRR §200.4(d)(4)(ii)(c); 20 U.S.C. §1412(5)(B); 34 C.F.R. §300.552(d)" (Exh. XX at 20). The parents' attorney argued that "the District failed to present evidence or testimony proving that their proposed programs would have met [student X's] unique special education needs" (Id.). The Second Circuit held that the District must offer testimony to meet its burden of proof. See L.O. v. N.Y. City Dep’t of Educ.,822 F.3d 95, 110-11 (2d Cir. 2016).
The parents argued that the CSE did not consider Dr. evaluation to determine instructional levels and the IEP did not reflect Dr. evaluation (Exh. 67 at 2,3). I credit the testimony of Mr. who stated that he had planned to reconvene the CSE when he received Dr. evaluation after student X started the 2014-2015 school year in September, but he had the sense that the parents were not interested in a District placement (Tr.1112;1116;1301) even though the parents had received the report in August (Tr.1121). I find the CSE team was required to conduct an adequate assessment, and "use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information"(20U.S.C. §1414[b][2][A]). It was undisputed that no evaluation supported the general education program with a period of Language Arts once daily for a period of 1 hour and 20 minutes in a special location, Specialized Reading Instruction in group with a staffing ratio of 5:1 once a day for 40 minutes in a special location and the IEP did not recommend a small class ratio in each class as recommended in Dr. report. It was undisputed that the IEP did not recommend . I find the District attorney acknowledged receipt of Dr. report on August 26,2014, (Exh. 2) and stated that CSE would reconvene to consider Dr. Newman's report and did not. I find District's attorney acknowledged that there was no receipt of the parents' request for additional testing in writing (Exh. 2) and I find that the District was aware of the parents' request for additional testing. I find that the SRO held in Application of a Student with a Disability, Appeal No.12-087, that the "district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation (34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4]); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary (8 NYCRR 200.4[b][4]; see 34 CFR 300.303[b][1]-[2])."
The District's attorney argued that to assume "arguendo, that the District should have scheduled the meeting and reviewed Dr. report, upon receipt, the error would be harmless. As Dr. acknowledged and the team reviewed at the next annual review, the evaluations produced very similar results to those previously conducted" (Exh. XXI at 27). I disagree. I find that the IEP team must review and consider all of student X's most recent evaluations. I find the failure to consider Dr.
report rose to a denial of FAPE. I find in Application of a Student With A Disability., Appeal No.14-029, the SRO considered the failure to consider a psychological evaluation, and found "the hearing record supports the parent's contention that the CSE's failure to review the results of the April 2012 psychoeducational evaluation constituted a procedural violation that rose to the level of a denial of a FAPE." The SRO further held in 14-028 that if a District, "determines that it does not require further evaluative data after obtaining parental consent, it must comply with procedures requiring that it notify the student's parents of that determination, its reasons for making the determination, and the parent's right to request additional assessments (34 CFR 300.305[d][1]; 300.503; 8 NYCRR 200.4[b][5][iv]; 200.5[a][6][i])." The parents' attorney asserted that "despite agreeing to perform new testing at the meeting. Exhibit 11; 16; 35; 36" (Exh. XX at 13), no new testing was provided. I agree. The parents' attorney asserted that the IEP must "accurately reflect the student's then present levels of academic achievement and functional performance at its development. 20 USC §1414(d)(1)(A) (i)" and "failed to contain an accurate description of ... present levels of academic achievement and functional performance when it created his June 5, 2014 IEP. Exhibit 11; 36. Not only were the District’s evaluations archaic, dating back to 2012, but their psychoeducational evaluation was invalid, because it relied on ... full scale IQ, in spite of his test scatter his scores revealed. Exhibit 16."(Exh. XX at 13). I agree.
Claims concerning assistive technology
The parents' attorney asserted that the CSE ignored the concerns of the parents regarding technology and that the program did not offer a small classroom setting with children at his level. I find the testimony was replete with District witnesses acknowledging the parents' expressed concerns regarding technology, and the program and placement. Testimony adduced at the hearing established the Chairperson had a very favorable view of technology and the ability of technology to assist student X in reading and writing; however, I find that the parents expressed their concerns regarding technology at the June 5, 2014 IEP (Tr. 1871; 1876,1883; Exh. 1at 2;3 at 1) verbally at the June 5, 2014 IEP as confirmed by the second grade regular education teacher (Tr.154;195;199) and their concerns were ignored. I find the AT evaluation revealed the unsuccessful attempts of technology to provide spelling supports and technology of voice recognition as student X could not read the text to determine its accuracy (Exh. 20 at 2), yet I find the IEP listed under management needs that student X "would benefit from assistive technology to facilitate reading comprehension" (Exh. 11 at 5).
I credit the testimony of the provider of the difficulty student X had with various word predication software such as "Word Cue" because he did not know how to spell and he could not use the technology, "Voice Detects," which he used to produce the writing sample (Exh. 27) in class because he had people to scribe for him (Tr.610). I find "Voice Detects" worked inconsistently for student X because of his articulation errors (Tr.638). I credit the AT evaluator who noted student X could not use the built in spelling supports of AT as his spelling attempts were not sufficiently close enough and that dictation accuracy was limited by decreased articulation (Exh. 20 at 3). I find the IEP failed to address the limited value of AT for student X in terms of his inability to read, spell or articulate.
I find that the CSE ignored the parents' request not to consider technology until after the student was taught reading and writing (Exh. 1 at 2). I find the CSE ignored the parents' expressed concerns regarding the slow progress of reading and writing. The SRO found in Application of a Student with a Disability, Appeal No.12-087 that "school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008] ["A professional disagreement is not an IDEA violation."]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]; Paolella v. District of Columbia, 2006 WL 3697318, at *1 [D.C. Cir. Dec. 6, 2006])." I find that the unwavering support of AT despite the evidence of the lack of success (Exh. 20) and testimony of the lack of success using AT with student X amounted to a denial of meaningful participation. The District attorney asserted that the provider "testified, the introduction of AT was not to replace handwriting it was simply recommended to enable him to focus his energy on written expression, without having to divert effort to the physicality of handwriting. T.472-473"(Exh XXI at 26). I disagree and find that the physicality of handwriting was required to be taught. I credit the testimony of the regular education teacher that the physical process of writing was cumbersome for him, but student X knew his letter formation (Tr.100). I credit the special education teacher's testimony that although there was a PAF handwriting program under script and print work, she did not use the writing program because she thought it would confuse student X (Tr.356). I credit the testimony of the special education teacher who stated that she was aware that dictation, spelling and handwriting play an integral part in PAF, but she maintained that there was no need to perform spelling or dictation tests (Tr.2502), because student X could write his letters. I credit the testimony of the provider who informed the parents they had the option of bringing student X to a developmental optometrist and as she found student X "had difficulty with handwriting. It took him a long time to remember what the letters looked like to write it down" (Tr.464). I find the record was silent as to which teacher was responsible to address student X's needs to improve his handwriting. I find there was no testimony from the resource room teacher, who was responsible to teach handwriting, to establish how handwriting was taught as I credit the testimony of the second grade special education teacher that the resource room teacher taught student X writing and wrote the writing goals (Tr.410).
I find credible the second grade report card that stated student X was "often hesitant to write because it takes him longer that his peers" (Exh. 14 at 3). I find that despite receiving support services from a special education teacher for 80 minutes and a resource room teacher for 40 minutes and an provider, student X had very limited levels for reading and writing (Exh. 38 at 1; 39 at 1). Testimony adduced at the hearing from the general education teacher, special education teacher and provider established that student X could not read or write independently (Tr.81;111;385;464), and read at a first grade level (Tr.94;232). I find that the CSE failed to address the expressed parents' concerns regarding the deficits in reading and writing (Exh. 1 at 1). I find the June 5, 2014 IEP listed under management needs that student X required "adult assistance in all activities that involve reading and or writing," (Exh. 11 at 5), the IEP provided for merely a shared aide and did not describe how student X would receive adult assistance in all activities that involve reading and writing in the general education program without an individual scribe and I find a shared aide limited the ability to student X to read and write while the aide was assisted another child. I find that CSE had substantial evidence before it at the June 5, 2014 IEP review that the student could not have his academic and emotional needs met by a placement in the general education program with daily special education in ELA for 80 minutes and daily specialized reading for 40 minutes (Exh. 11 at 8).
Claims concerning FBA or BIP
The parents' attorney argued that "New York law mandates that whenever a student's behavior is impeding their ability to learn, the District must conduct a ...FBA..., and 'consider the use of positive behavioral interventions and supports, and other strategies,' in order to limit their negative impact. A.C. ex rel. M.C. v. Bd. of Educ.. 553 F.3d 165, 172 (2d Cir. 2009) (citing 20 U.S.C. §1414(d)(3)(B)(i)); 8 NYCRR §200.4(b)(v)). State regulations mandate that the District determine why a student engages in such behavior, and how it relates to their classroom environment and overall scholastic setting. 8 NYCRR §200. l(r). Recently, the Second Circuit has found that a FBA may prove essential, as it informs the District of the root cause(s) for a student’s behavioral deficits. L.O.. individually and on behalf of K.T. v. New York City Dept, of Educ.. 2016 WL 2942301 (2d Cir. 2016)"(Exh. XX at 10-11).
The District's attorney argued that while student X's parents "were upset that he chewed on his shirt and engaged in other sensory soothing behaviors when he last attended school in the District, there is no evidence that it or any other sensory soothing behaviors were significantly interfering with his learning or required an FBA to understand either the triggers or the appropriate interventions" (Exh. XXI at 25). I disagree. I find it was undisputed that no FBA was developed pursuant to state and federal law.
The District's attorney argued that the IEP allowed for daily movement breaks to address any "alleged behavioral and sensory issues" (Exh. XXI at 25) and noted that the provider "was in regular contact with teachers and constantly offered them manipulatives to redirect him. T.459-460)"(Id.). I find daily movement breaks insufficient to address student X's behavior and sensory issues. I find the June 5 2014 CSE team was aware of the distracting behavior exhibited by student X as documented by the March 2013 Educational Reevaluation (Exh. 18 at 4), the 2012-2013 IEP recommending a "token board economy system to motivate him" (Exh. 13 at 4) and the May 13, 2013 psychological evaluation (Exh. 16 at 2) that noted difficulty in articulation and organizing and coordinating the pencil and paper. I find the 2013-2014 IEP indicated under management needs breaks for fleeting attention (Exh. 12 at 6). While the Second Circuit has held that the failure to conduct an FBA is a serious procedural violation for just this reason. R.E. v. NYC Dept. of Educ. 694 F.3d 167, 190 (2d. Cir. 2012), not every failure to conduct an FBA will rise to the level of a denial of FAPE, the failure must have been mitigated by other information regarding the student's behavioral issues and supports to accommodate them appropriately Id. I find that the IEP failed to consider the student's behavioral and failed to provide appropriate support. I find that checks for understanding, refocusing and redirections, breaks for movement, tasks broken down, shared aide, and reducing the amount of visual information on a page were insufficient management needs to address student X's behavior (Exh. 11 at 8). I find that the parents presented ample evidence of student X's attention problems throughout elementary school. In first grade, student X required "a token board economy system to motivate him to complete his work and participate in group settings, and monitor his behaviors"( Exh. 13 at 5) and required "support to follow classroom routines, focus and stay on tasks, retain academic skills in the classroom and to use expressive language consistently" (Exh. 13 at 4). The first grade special education teacher noted that student X had a weakness in "word reading and oral reading fluency" and that if "another student entered the room, which was otherwise empty, he would become distracted and stop working"(Exh. 18 at 4). Dr. noted that student X "spoke a great deal, but his speech was sometimes difficult to understand, both due to articulation issues and apparent difficulty in organizing his thoughts. Pencil and paper tasks seemed difficult for him, particularly coordinating the pencil and paper in addition to the other demands of the task" (Exh. 16 at 2). The May 29, 2013 IEP indicated under management needs that student X "required breaks, when working on a task for a longer period of time. His level of focus needs to be monitored, as his attention can be fleeting, especially when placed in an environment with a lot of visual and auditory distractions"(Exh. 12 at 6).
I credit the general education teacher's testimony that student X did exhibit sensory seeking behavior during transitions to resource room by toe walking and chewing and noted that student X had emotional difficulties when he became overwhelmed and that student X would become oppositional and was frustrated during reading and writing activities (Tr.105;122;129). I credit the second grade general education teacher's testimony that student X "had sensory issues, and those were displayed often in the classroom"(Tr.67), and that student X chewed on his shirt and put the table legs on his feet every day" (Id). I credit the second grade general education teacher's testimony that she sent sensory tools (fidgets, a jewelry toy and velcro) to art, music and physical education to address his sensory needs (Tr. 109). I further credit the second grade special education teacher's testimony regarding student X's lack of compliance and "stonewalling when he's told to read" (Tr.409) and I credit that she conveyed to the parents her concerns that student X was not making progress because he "wouldn't work"(Id.). I credit the testimony of the provider that student X put his feet under the legs of his chair and bit his shirt to "organize himself"(Id.), and noted "it was the stressor of academics that make him seek out almost sensory soothing behaviors" (Tr.495;576;618;630). I credit the provider who stated that it was because of the academic demands of second grade that student X required sensory soothing behavior or oral input, however, I do not find that a chewy top was a socially appropriate way to calm and to organize (Tr.596). I find the June 5, 2014 IEP failed to provide any behavior supports to address the interfering actions and failed to provide student X with any sensory equipment or tools despite clear indications of maladaptive behaviors. I find the District failed to conduct a FBA of student X and IEP indicated that student X did not need "strategies, including positive behavioral interventions, supports and other strategies to address behaviors of the student's learning or that of others (Exh. 11 at 6). I find that student X did need positive behavior interventions. The parents' attorney argued that the regular education teacher stated "none of the other students wanted to even sit next to [student X] because he chewed on his shirt, revealing a strong social and emotional consequence, aside from its very real academic repercussions. Exhibit 38; Tr. 68"(Exh. XX at 12). I find the failure to conduct a FBA constitutes a denial of FAPE when the IEP fails to adequately identify problem behaviors or prescribe adequate ways to manage them. R.E., 694 F.3d at 190.
Claims concerning anxiety and lack of management needs and counseling
The parent objected to the testing modification and asserted the management needs were insufficient. I find the testimony that student X chewed on his shirt and put the chair on his feet evidenced great anxiety. I credit the testimony of the second grade general education teacher that student X chewed on his shirt and put the bottoms of chairs on top of his sneakers (Tr.165), and that student X exhibited sensory seeking behavior during transitions as frequent toe walking and chewing(Tr.121). I credit her testimony that when student X was overwhelmed his emotional difficulties made him oppositional and frustrated (Tr.124). I find there was no testimony regarding the appropriateness of movement breaks or a chewy bracelet to address the problems with inattentiveness or anxiety (Tr.90;92). The parents' claim that student X's self-esteem was not addressed in the June 5 2014 IEP. I agree and find the IEP's modifications of checking for understanding, refocusing, allowing for breaks, breaking down tasks, a shared aide and the reduction of amount of visual information did not address student X's emotional or academic needs. I find that was not recommended to address student X's emotional needs, and I find that should have been provided to address student X's anxiety. I further find that the management needs of a shared aide did not address student X's lack of independent reading and writing ability. I credit the testimony Dr.
that the scribe merely addressed fine motor and not reading and writing skills (Tr.1449) I credit the testimony of the education teacher who stated that because Student X could not read or write the scribe would read and write for him (Tr. 115;117-118). I credit her testimony that student X missed her instruction when the scribe wrote or read for him (Tr.142). I further credit her testimony that she could not explain why a scribe was not added to the IEP (Exh. 11 at 4) as the demands of reading, writing and spelling increased in third grade (Tr.151). I find the lack of specificity in the amount of time the shared aide would devote to student X, who could not read or write without the scribe amounted to a deprivation of educational benefits and I find a shared aide was an insufficient management need. Moreover, I find the record was replete with District witnesses stating that student X was very bright (Tr.57;111;224;242;244;370;1286), and Dr. testing reviewed student X's full scale IQ was , in the range with a verbal comprehension score of IQ of in the range (Exh. 23 at 6), yet I find credible the testimony that student X considered himself the dumbest in the class (Tr.1820) and student X stated that he did not need to learn to read (Tr. 383), and that he did not need to learn to write (Tr.484). I find the District failed to establish that the IEP addressed student X's self-esteem and anxiety and the lack of amounted to a deprivation of educational benefits.
Goals
The parents objected to the seven academic goals and four goals and objected to the two AT goals as part of the goals and asserted that student X required more than a single goal to assist student X to physically write and the IEP failed to include focusing goals or social/ emotional goals (Exh. 67 at 5). The parents asserted that the IEP were vague and overbroad and that student X's IEP did not meet his individual needs and challenged the appropriateness of the IEP annual goals and short-term instructional objectives. The parents noted that there were no goals or objectives pertaining to interfering actions and lacked an recommendation of sensory tools or equipment (Exh. 67 at 3). The parents asserted that CSE failed to develop appropriate academic goals and appropriate goals and failed to recommend SETSS despite student X's delayed functioning (Id.). The District's attorney asserted regarding the goals that "there is no basis to find that they failed to provide teachers with the necessary detail to provide for their implementation or omitted to address each and every identified area of need"(Exh. XXI at 28). The parents' attorney asserted that "an IEP must contain measurable annual goals which will 'enable the student to be involved and progress in the general education curriculum.' 8 NYCRR §200.4(d) (2)(iii)(a)(l); 20 USC § 1414(d)(1)(A). Though, an IEP need not be calculated to maximize a student’s potential; rather, the document must engage in 'personalized instruction and support services to permit the child to benefit from that instruction.' Evans, 930 F. Supp. at 98 (quoting Rowley, 458 U.S. at 203). Likewise, under 8 NYCRR §200.4(d)(2)(iii)(a), an IEP must comprise of goals and objectives personalized and tailored to the unique disability needs of the student in question" (Exh. XX at 14).
I find that while the IEP noted that student X had good letter formation, but difficulty with spelling impacted his ability to complete writing assignments, (Exh. 11 at
4) in academic achievement section, yet the writing goal was to learn to spell and define 50 new high frequency words with 90 % success every 2 weeks (Exh. 11 at 7). I find the goal was not tailored to student X's unique disability was in contradiction to the academic achievement section. I also find that the writing goal of planning, revising, editing his writing to correct errors was not tailored to student X's unique needs considering student X used a scribe to engage in grade level writing activities. I find the study skills goal to write down study assignments was also in not tailored to student X's unique disability in light of the academic section. I find there was inconsistent testimony regarding the reading goals; however, I credit the testimony of the second grade special education teacher who was concerned with the lack of progress (Tr.2430) and that student X struggled with spelling words and his reading level was too low for him to be able to spell and yet his comprehension was above average so spelling frustrated him (Tr.2506). I credit the provider testimony that student X required sensory soothing behavior or oral input, (596), and I find the IEP lacked any goals or objectives to address the interfering actions and failed to provide student X with any sensory equipment or tools despite clear indications of maladaptive behaviors.
Claims of no specific reading program
The District's attorney asserted the lack of specialized reading was without merit "as the goals specifically call for a scientifically based reading program"(Exh. XXI at 31). The parents' attorney argued that the special education teacher "testified that [student X's] 2014-2015 reading goals were in-line with PAF; and yet she admitted, that his IEP failed to contain any reference to the corresponding books or readers associated. Exhibit 11 at 7; Tr. 251. She went on to state that [student X's] 90% criterion was rooted in PAF’s 100% criterion, though this explanation is unsupported. Exhibit 11; 35. In addition, any information absent from [student X's] IEP would not have been considered when the parents determined that their son needed to attend Windward. R.E., 694 F.3d 174 (2d Cir.
2012) (Exh. XX at 17). I agree. I credit the second grade special education teacher's testimony that she was unaware of the immersion ideology to provide PAF in other subject areas, but noted that PAF could not be implemented in the second grade mainstream class as student X's reading level was (Tr.390;392;395). I note the second grade regular education teacher's stated that she could not explain why the fifth goal (Exh. 11 at 7) of the 2014-2015 IEP stated: "using a systematically based instructional approach, the student will make at least one year of progress in the development of his reading" did not specifically state a reading program like Fountas & Pinnell (Tr.157). I credit the testimony of the second grade special education teacher who stated that PAF should be used alone and not be used with another reading program (Tr.386). I further credit the testimony of the second grade special education teacher who explained that Fountas & Pinnell used pictures and the STAR used multiple choice so she was not sure if they were scientifically based reading systems (Tr.353). I find there was no specific reading program as Fountas & Pinnell and PAF were both used. The parents' attorney noted that the second grade special education teacher "testified that while she was familiar with the Fountas and Pinnell system, there was no cross over with PAF. Tr. 351-2. As a result, [student X's] reading block was provided in isolation, lacking any repetition, practice, or integration within his curriculum. Id.; Tr. 379-0."(Exh. XX at 19). I agree.
Claims of the small class size setting that works at skill level not age level
I find that CSE had substantial evidence before it at the June 5, 2014 IEP review that the student could not have his academic and emotional needs met by a placement in the general education program with daily special education in ELA for 80 minutes and daily specialized reading for 40 minutes (Exh. 11 at 8). I find credible the testimony of the regular education teacher who noted that student X could not read, write or spell (Tr.64;179,180) and that student X uses a scribe to engage in reading and writing. I find that the parents provided substantial evidence to the CSE that student X was not functioning well in the general education class and needed program modifications as evidenced by Dr. report. I find Dr. diagnosed student X with the following disorders: Reading Disorder 315.00, Disorder of Written Expression 315.2, Attention Deficit/Hyperactivity Disorder, Primarily Inattentive Type 314.00, Development Coordination Disorder (Exh. 23 at 15). I find student X was having considerable problems with homework and expressed his inability to do the work expected of him as I credit the testimony of the special education teacher who explained that student X struggled with spelling words and his reading level was too low for him to be able to spell and yet his comprehension was above average so spelling frustrated him (Tr.2506). I find the draft IEP indicated student X "attempts to distract the instructor while engaged in reading a passage, he will stop to ask, 'why do we have to read this page?'"(Exh. 36 at 3). I find that the parents requested specific assistance for homework and class work modifications and presented evidence of the interfering behaviors and expressed their concerns as to how student X's interfering behaviors affected his performance by their letters (Exh. 1, 1A,3,5, 8). The parents' asserted that the IEP failed to recommend SETSS despite student X's delayed functioning. I find that the CSE apparently ignored the parents' request for more special education instruction in determining that student X could function in a general education setting for all academic classes except ELA. I find a general educational setting and with a special class for 80 minutes for ELA and specialized reading instruction for 40 minutes (Exh. 11 at 9) provided insufficient support in light of the disorders outlined by Dr. I find that testing throughout his career in the school District revealed that student X has made insignificant progress in developing his reading, spelling, and writing skills, despite being in receipt of resource room services, and special classes since 2012. (Exhs.13 at 1, 19 at 1, 16 at 6, 20 at 2, 23 at 8,15,18) I find that CSE had substantial evidence before it at the June 2014 review that student X could not have his academic and emotional needs met by continuation in a general education setting with a special class and specialized reading instruction. The parents' attorney argued that "in his non-PAF subjects: science, social studies, and math, [student X] stagnated, failing to make any academic progress, thus revealing his need for a fully immersive wrap-around reading program, as he was required to read in all of his classes" (Exh. XX at 19). I agree.
Moreover, pursuant to state law, students with disabilities shall be grouped by similarity of the individual needs according to four criteria: academics, social development, physical development and management needs. (8 NYCRR 200.6(h)[2]). I find that the evidence did not establish that student X was grouped appropriately in the special class as testimony adduced at the hearing established that student X was grouped with another child who had problems with reading comprehension (Tr.430). Based on the foregoing, I find that the District failed to demonstrate that student X's IEP and program were appropriate for the 2014-2015 school year.
The parents have the burden to prove that the services they obtained for the student are appropriate to his needs. The fact that the facility selected by the parents to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the parent’s claim for tuition reimbursement. (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993])
I credit the testimony of the liaison that Windward was a school for students with average to superior intelligence, who have not been successful in learning to read and the school follows the Orton-Gillingham methodology as well as PAF for students with a language based learning disability including dyslexia in a structured sequential multisensory instruction in reading, writing and spelling (Tr.1579;1598). I credit the testimony of the liaison that Windward addressed these learning deficits through Orton Gillingham throughout the day as curriculum coordinators in each content area (math, science, social studies and language arts) ensured that the children were presented with language-based instruction throughout the day (Tr.1580), that PAF and Merrill readers were presented to each child in a structured way so that instruction was direct and explicit and the skill based program was specifically geared to that child, and that Windward follows the New York State curriculum for language arts, math, science and social studies (Tr.1581). I find Windward had small self-contained class with a language-based academic program. I further find that the parents established student X's history of severe language-based learning difficulties in reading and writing who required a small selfcontained class with a language-based academic program. I further find that the Windward program matched the recommendations of Dr. I found the testimony of the parents and Mr. credible. The testimony supported the parents' position that student X is progressing socially, emotionally and academically. I find that the a parents' attorney asserted that the question of "whether a parent's placement is appropriate is 'not perfection'. MS. ex rel S.S. v. Bd. Of Ed., 231 F.3d 96 (2d Cir. 2000) (Exh. XX at 22). The District's attorney argued that Windward was not the least restrictive environment for a "student of superior intellect, good humor and an inquiring mind .With his recognized strengths, there is nothing that prevents him from excelling in regular education classes with appropriate supports and accommodations"(Exh. XXI at 39). The District’s counsel argued that the placement at Windward is too restrictive. I find that only the District bears the burden to comply with the mandate to place the student in the least restrictive environment. I find the parents must establish by a preponderance of the evidence that the unilateral placement provides "educational instruction specifically designed to meet the unique needs of the handicapped child." (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). The parents must show that the services provided were "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., that the private school offered an educational program that met the child's special education needs. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities (Carter, 510 U.S. at 10). The student need not be in the least restrictive environment (Frank G, 459 F. 3d at 364). "Parents need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." (Id. at 364-365). (See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).
I find that there was substantial evidence presented by the parents that established that Windward met the unique academic, social and emotional needs of student X during the 2014-2015 school year. I credit the testimony of the liaison that student X required structured and sequenced instruction (Tr.1626), and that student X's deficits were targeted in each class with structured, sequential, language-based multisensory instruction to improve his decoded, spelling, fluency and accuracy (Tr.1626). I further credit the liaison's testimony that the Windward teachers in social studies, science, math reinforced the skills taught in language arts and that the small classes with the assistant teachers provided individual attention (Tr.1628;1631).
The Second Circuit addressed the importance of considering methodology in M.H. v. N.Y.C. Dept. of Educ., 685 F.3d 217 (2d Cir. 2012). It was uncontested that student X required an intensive language based multi-sensory program. I find that student X received an intensive language based multi-sensory program in each academic class, and I credit the testimony of the Windward CSE liaison that student X received intensive language based multi-sensory instruction in each academic class. I credit the liaison's testimony that the focus was to teach reading, writing and spelling to be successful in reading, so there was no focus in technology (Tr.1731;1745), and that the focus was to teach student X to use pen and paper to learn writing skills and with direct, sequential instruction he progressed in writing (Tr.1740). I credit the liaison's testimony that student X was unable to produce written work that reflected his intelligence, yet he was taught strategies to expand and elaborate sentences and to organize information into paragraphs with graphic organizers (Tr.1742). I credit the liaison's testimony and find that student X was able to use cursive writing to express sentences and paragraphs, but he still could not spell (Tr.1743).
I credit the liaison's testimony that there were small classes (two to thirteen students) and each class was taught by two teachers and that students were grouped homogenously for math, reading, writing and Orton Gillingham skills each day and grouped heterogeneously for science and social studies (Tr.1581;1799). I credit the liaison's testimony that student X was in a class in his three language arts (reading, writing and Orton Gillingham skills) for the 2014-2015 school year with five other children, with a teacher and an assistant teacher and was placed in a math class with eight children and with a teacher and an assistant teacher and his social studies, science and homeroom had thirteen children. While there was skill development, the focus was on content areas in science and social studies (Tr.1593). I credit the liaison's testimony that student X was taught writing in a small class where he brainstormed with other children and used a graphic organizer and that the writing, reading and skills programs were linked so that student X worked as a third grader for the 2014-2015 school year with other third grade children in the same reading, writing and skills class and that reading and spelling were linked as children were taught skills for decoding and skills and strategies to spell the word they were trying to decode (Tr.1610).
The District's attorney did not address the curriculum at Windward and in fact acknowledged the benefits of Windward (Tr.44). The amendment noted the respect the District had for Windward (Exh. 66 at 2).
I find that the evidence presented by CSE liasion meets the four criteria of NY state law. Academically, the children described in the Windward class are comparable with student X's age and educational abilities and that the children in student X's class have similar language dyslexia and function on the same grade and age level.
The parent' attorney argued that the "Stanford scores showcase his progress. Exhibit 55. Not only did he improve in his CVC and CCVC words, but also with his SE (silent-e rules). Id-; Tr- 1645-6. His testing also reveals an increase in both long and rcontrolled vowels, as well as easy endings. Id. (Exh. XX at 25). The parents' attorney asserted that student X's "grade equivalency for vocabulary improved from 1.5 to 1.9, and although the District tried to refute his progress/ via his stanine scores, Dr. testified that we ought to be examining his raw score changes rather than the percentiles listed, because they are a more sensitive instrument of measurement. Exhibit 55; Tr. 1532-3, 1535." and that student X " improved a half a grade on his comprehension on the timed version of the test, with an entire grade level on the untimed exam. Exhibit 55"(Id.). I find the parents established student X progressed academically, socially and emotionally.
Therefore, I find that the parents met their burden regarding the unilateral placement of the student at Windward for the 2014-2015 school year.
2015-2016
The parents alleged that the DOE failed to provide FAPE for the 2015-2016 school year on procedural and substantive grounds: the June 1, 2015 IEP did not reflect the parents' concerns; the parents did not receive the IEP until July 28, 2015 for a 12month school year student; the IEP was not appropriate because the team was supposed to reconvene to discuss unresolved concerns and the team did not reconvene; the IEP amendment did not consider the parents' concerns; the IEP did not recommend a small classroom setting with students at student X's grade level rather than his skill level as recommended by Dr. ; the ELA with a staffing ratio of 12:1+1 was the only small class recommended (Exh. 67 at 6). The parents alleged that the IEP failed to address student X's emotional and social needs and did not provide a transition plan to assist a placement back to the District (Id.). The parents alleged that the IEP was not supportive enough to provide consistent behavior intervention as he was placed with students at his instruction level at Windward; the class size was too large and the IEP team failed to take into account the different ratios at Windward; the IEP did not include a FBA / BIP to address behaviors that were not present at Windward and sessions should have been provided for potential maladaptive behaviors when student X returned to the District (Id.). The parents alleged that while the IEP mandated that student X would be monitored by a school , the IEP failed to provide specific services or supports (Id.). The parents alleged that the IEP did not meet student X's unique needs and that student X needed further reading, writing and math goals and needed social and emotional goals (Exh. 67 at 7). The IEP failed to include the specific reading and writing program and IEP mandated another meeting in October 2015 to address AT despite the parents' concerns regarding the prohibition of AT until student X could read (Id.).
Receipt of IEP on July 28, 2014 despite recommendation of a 12-month program I find that student X required a 12-month program and that the CSE was required to have that program in place for at the start of the 12-month school year.
IEP Amendment did not reflect the parent's concerns and students at grade level
The parents' attorney argued the amendment (Exh. 66 at 2) did not address the parent's concerns. I find the amendment reflected the Chairperson's confidence in AT to assist student X as the subject of AT was to be reconsidered after a month. I do not find the amendment reflected the parents' concerns regarding AT. The amendment indicated that the class profile of the ELA special class would have similar abilities to student X (Id.). The District's attorney argued that the allegation that student X would be placed with students on a much higher functioning and cognitive level was speculative and that student X would be placed "as required by law and regulation, with students of similar needs and abilities"(Exh. XXI at 32). The parents' attorney argued student X "was isolated and alone, lacking in companionship, because he failed to be placed with similarly situated students in accordance with the characteristics cited by New York law" (Exh. XXII). I agree. I credit the testimony of the special education teacher who stated that while she only had 2 students in her class, student X and another student and the other student had issues with reading comprehension (Tr.430) and that there were 3 additional students working with 1:1 aides working on different activities during the 80 minutes of her class (Tr.2513). I find there was no testimony to establish that student X was placed with students with similar levels of academic achievement, social and physical development, and management needs in the 2013-2014 school year.
ELA with a staffing ratio of 12:1+1 was the only small class recommended
The District's attorney argued that parents noted that "the IEP only included a 12:1:1 class for ELA while omitting the fact that the ELA block, as before, is for 80 minutes daily and also includes an additional 40 minute block each day in a 5:1 resource room. J. Ex. 61"(Exh. XXI at 32). I find the team was supposed to reconvene to discuss unresolved concerns and did not reconvene and so I find that the June 1, 2015 IEP failed to recommend a program to address the parents' concerns and the lack of clarification as to how the proposed general education placement and a single ELA 12:1+1 class and an additional 40 minutes of 5:1 resource room for the 2015-2016 would meet student X's emotional and social needs and significantly impeded his right to FAPE. I credit the testimony of the parent who stated that the Windward liasion told the team that his son required an additional period of 1:1 reading because his son was such a reader and had severe dyslexia (Tr.2063-64), and that the parent was not aware of a discussion of specialized reading instruction and how this instruction differed from resource room (Tr.20174). I credit the parent's testimony the June 1, 2015 IEP did not address his son's disabilities and there was no commitment to PAF or any multisensory reading program and that a single class of the PAF program was insufficient supports to address student X's deficits (Tr.2089;2090-2091). I find that the District failed to establish that the parent and the liasion meaningfully participated in the decision-making.
Claims concerning FBA or BIP and counseling and supports
Regarding student X's social or emotional needs the parents' attorney asserted that the "District failed yet again, to provide any such objectives on his 2015-2016 IEP. Exhibit 61" (Exh. XX at 17). The parents' attorney argued that the liaison informed the team of student X's "social and emotional standing at Windward. Tr. 883; 929."(Id.). I credit the testimony of the Chairperson who stated that the team did not feel that student X required , but a would have been provided to aid student X's transition back to the District and that if the family wanted on the IEP, then would have been placed on the IEP (Tr.883-884). I credit the testimony of the Chairperson who believed that student X would be able to manage his frustration and anxiety (Tr.933). I further find that the District failed to establish that the parents and the Windward liaison meaningfully participated in the decision making process in terms of and support. I find the lack of CSE evaluations to support the general education class with a 80 minutes of a 12:1+1 ELA class and 40 minutes of 5:1 resource room recommendation significantly impeded the parent's opportunity to participate in the decision making process. I find the June 1, 2015 IEP did provide positive reinforcement and encouragement when facing academic challenges (Exh. 61 at 8) in the management needs, but I find the modifications of checking for understanding, refocusing and redirection, allowing breaks for movement, tasks broken down, share aide, reduction of the amount of visual information, graph paper, monitor organization and assignment completion and directions repeated did not provide sufficient supports when student X was in non ELA academic classes.
Therefore, I find the District failed to establish that FAPE was provided during the 2015-2016 school year as I find CSE failed to offer an appropriate program and placement for the 2015-2016 school year.
When a public school system has failed to provide FAPE, the program and "services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.
Testimony adduced at the hearing clearly demonstrates that the Windward program was a small structured therapeutic environment to meet student X's academic, behavior, social and emotional needs as recommended in the evaluation and I credit the testimony of Dr. that student X's high level of anxiety was addressed at Windward due to the small class size and specialized program and supports (Tr1452;1487). The parents' attorney noted that "the reading and writing programs at Windward are integrally linked, not only due to the fact that the teachers for reading, writing, and skills are the same, but because the strategies are applied across each of the three language periods. Tr. 1610. Students, who are taught skills for decoding, are also taught strategies they can use to spell the words they are attempting to decode. Id. All ... teachers, from ELA and math, to social studies and science, are taught in the Windward methodology, so that 'they can continuously reinforce his learned strategies.' Tr. 1628"(Id.). I credit the testimony of Dr. that student X's high level of anxiety was addressed in at Windward due to the small class size and specialized program and supports (Tr1452;1487). I credit the liaison's testimony that for the 2015-2016 student X was in a class in language arts with eight students with a teacher and an assistant teacher and he was placed in a group of twelve children for math, social studies, science and homeroom with a teacher and an assistant teacher in each class. He stated that student X was then moved up to the middle level group for math as he was strong in thinking and reasoning and that he was grouped with children who were also strong in math (Tr.1597;1600). He stressed that student X was grouped with other children who needed significant support for skill development and in language arts he was grouped with children who were working on the same level in the PAF and Merrill readers (Tr.1599). I credit the liaison's testimony that student X received an additional period of 1:1 tutoring support in skill development for decoding and spelling and reading twice a week as well as the three language arts (writing, reading and skills) classes twice a week (Tr.1613), as the rate of progress to improve both fluency, decoding and spelling was slow (Tr.1622). I credit the liaison's testimony that student X's deficits were targeted in each class with structured, sequential, language-based multisensory instruction to improve his decoded, spelling, fluency and accuracy (Tr.1626). ). I credit the testimony of the liaison who opined that student X was moving through PAF and his teachers for both years noted that student X was eager to read orally even though he knew it was hard work to read and was willing to read in front of the class (Tr.1650). I find Windward met the unique academic, social and emotional needs of student X for the 2015-2016 school year.
The third prong of the test for tuition reimbursement is whether the equities favor the parent's position. I find the equitable considerations do support the parents' claim for reimbursement. In this case, the parents fully cooperated with the District to the best of their ability and made the student available for evaluations. The District's attorney argued that "the Parents had signed a contract with a non-refundable deposit enrolling their son at Windward on April 2,2014, more than two months before the annual review meeting (Exh. XXI at 28). The parents' attorney argued that the parents "were assured by the Head of Windward that their deposit would be fully returned should they decide to place him in the District, as they maintain a lengthy waiting list, in spite of their enrollment contracts. Exhibit 68; Tr. 1906"(Exh. XX at 29). The parents' attorney noted that the "IHO examines whether notice was provided to the DOE regarding the unilateral placement of a child, either by written notice ten days prior to removal or at the last CSE meeting held prior to the removal. 20 U.S.C. § 1412(a)(10)(C)(iii); see C.F.R. 34 § 300.148(d). The written notice must state that the parents are 'rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and intent to enroll their child in a private school at public expense.' Id."(Id.). I find the parents notified the District in August 2014 and August 2015 as to their intent to place student X at Windward and seek tuition and I find the equities support the parents for the 2014-2015 school year and the 2015-2016 school year.
ORDER
Therefore, it is hereby ordered that the District provide tuition reimbursement to the parents $50,250 for the 2014-2015 and $51,500.00 for the 2015-2016 school year (Exh. 67 at 8).
Dated: August 31, 2016
_____________________________
LINDA AGOSTON, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 35 days of the date of this decision, the Parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New MMFS State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the Parent plans to appeal the decision, a notice of intention to seek review shall be personally served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.
An appealing parties' petition for review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. (8 NYCRR § 279.2(b))
The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 27, 2015
1 Letter from to ten day notice, 8/13/14, 3 pp. Joint
1A Letter from to , 8/20/14, 1 p. Joint
2 Letter from to , 8/26/14, 2 pp. Joint
3 Letter from to , 9/23/14, 2 pp. Joint
4 Letter from to , 12/18/14, 2 pp. Joint
5 Complaint, 4/16/15, 6 pp. Joint
6 Letter from to , 5/18/15, 1 p. Joint
7 Answer, 5/19/15, 5 pp. Joint
7A Letter to , 6/5/15, 2 pp. Joint
8 Amended Complaint, 5/26/15, 8 pp. Joint
9 Amended Answer, 10/21/15, 1 p. Joint
10 Prior Written Notice 2014-2015, 6/5/14, 2 pp. Joint
11 IEP 2014-2015, 6/5/14, 11 pp. Joint
12 IEP 2013-2014, 5/29/13, 12 pp. Joint
13 IEP 2012-2013, 4/3/12, 11 pp. Joint
14 Report Card, 2013-2014, 3 pp. Joint
15 Progress Reports, 2013-2014, 6 pp. Joint
16 All About Kids, Psychological Evaluation, 5/13/13, 5 pp. Joint
17 Visual Alternatives, 5/9/13, 2 pp. Joint
18 Educational Re-Evaluation, 3/4/13 - 3/6/13, 4 pp. Joint
19 WIAT-III, 4/5/13, 9 pp. Joint
20 Assistive Technology Consultation
Recommendations, 5/12/14, 5 pp. Joint
21 Therapy Evaluation, 2/11/13, 4 pp. Joint
22 Re-Evaluation. 12/13/12 & 2/13/13, 4 pp. Joint
23 Psychological Services
Evaluation, 6/14/14, Received 8/19/15, 28 pp. Joint
24 Classroom Observation Windward, 4/30/15, 1 p. Joint
25 PAF Placement Test, 2013-2014, 8 pp. Joint
26 Reading Assessment, 2014, 9 pp. Joint
27 Student Writing Samples, 2014, 3 pp. Joint
28 Windward Report, 5/2015, 2 pp. Joint
29 Student Writing Samples, 1/29/15, 2 pp. Joint
30 Occupational Therapy Evaluation, 2013, 7 pp. Joint
31 Teacher Report and Writing Sample, 6/2014, 7 pp. Joint
32 Progress Report Windward, 2014-2015, 11 pp. Joint
33 The Windward School Mission, undated, 3 pp. Joint
34 The Windward School Initial Educational
Screening 4/2/14 - 4/3/14, 2 pp. Joint
35 Parent Notes 6/5/14, 6 pp. Joint
36 Draft IEP, 6/5/14, 11 pp. Joint
36A CSE Review Form, 6/14/14, 5 pp. Joint
I Appointment Letter, 6/10/15, 2 pp. IHO
II Decision on Extension, 7/29/15, 1 p. IHO
III Decision on Extension, 9/11/15, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 28, 2015
IV Decision on Extension,10/2/15, 1 p. IHO
V Decision on Extension,10/28/15, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 8, 2015 FOR
ID ONLY
37 Reading Level Correlation Chart, undated 1 p. Joint 38 Teacher Checklist: , 6/3/14, 5 pp. Joint 39 Teacher Checklist: , 6/11/14, 5 pp. Joint 40 Research on Windward. undated, 3 pp. 41 New York Times Article: A Father-Daughter Bond, undated, 3 pp. Joint 42 Windward Today, Lower School Arts, undated, 7 pp. Joint 43 Windward Today, Study Skills, Undated, 8 pp. Joint 44 Initial Educational Screening, 4/2/14 - 4/3/14, 2 pp. Joint 45 What's Missing? undated, 12 pp. Joint 46 PAF Placement Test Example, undated, 12 pp. Joint 47 Preparation for Books A through E, undated, 50 pp. Joint 48 PAF Test Single Work Reading, undated, 3 pp. Joint 49 PAF Single Word, Reading, undated 3 pp. Joint 50 Syllables Are the Key, undated, 24 pp. Joint 51 PAF Lesson Plan Example, undated, 2 pp. Joint 52 Resume, undated 3 pp. Joint 53 Progress Report Grade 3, 2014-2015 School year, 12 pp. Joint 54 Progress Report, Grade 4, 2015-2016 School year, 8 pp. Joint 55 2014-2015 School year Test Results, Undated, 3 pp. Joint 56 . Attendance of Windward Trainings, 4 pp. Joint 57 The Making of a Windward Teacher, 2011, 4 pp. Joint 58 Class Schedule for . for 2014-2015 and 2015-2016, 2 pp. Joint 59 CSE Review Notes, 6/1/15, 1 p. Joint 60 PWN,7/ 28/15, 2 pp. Joint 61 IEP 2015-2016, 6/1/15, 3 pp. Joint 62 Email, 8/14/15, 1 p. Joint 63 Fax Cover and letter from to , 8/26/15, 5 pp. Joint 64 Email and Meeting Notice, 8/28/15, 6 pp. Joint 65 Email from . to , 9/1/15,7 pp. Joint 66 Letter from to parents, 9/4/15, 8 pp. Joint 67 Second Amended Complaint, 5/16/14, 9 pp. Joint
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 3, 2016 FOR
ID ONLY
68 Enrollment Contact, 5/16/14, 4 pp. Joint 69 Psychological Services, Questionaire, 6/14/14, 5 pp. Joint VI Decision on Extension, 2/3/16, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 2, 2016 FOR ID
ONLY
68 Multisensory Reading Instruction, undated, 1p. Joint 69 PAF Book D and Book E, Undated 1p. Joint
DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 2, 2016
I Appointment Letter, 6/10/15 , 2 pp. IHO
II Decision on Extension, 7/29/15, 1 p. IHO
III Decision on Extension, 9/11/15, 1 p. IHO
IV Decision on Extension,10/2/15, 1 p. IHO
V Decision on Extension,10/28/15, 1 p. IHO
VI Decision on Extension, 2/3/16, 1 p. IHO
VII Decision on Extension, 3/2/16, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD APRIL 18, 2016
76 Communicates: Windward Staff Member & , 4/3/14, 1p. Joint
( Withdrawn and Entered as IHO Exh. XV on June 17, 2016)
DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 18, 2016
1 Letter from to ten day notice, 8/13/14, 3 pp. Joint
1A Letter from to , 8/20/14, 1 p. Joint
Letter from to , 8/26/14, 2 pp. Joint
3 Letter from to , 9/23/14, 2 pp. Joint
Letter from to , 12/18/14, 2 pp. Joint
5 Complaint 4/16/15, 6 pp. Joint
6 Letter from to , 5/18/15, 1 p. Joint
7 Answer 5/19/15, 5 pp. Joint
7A Letter to , 6/5/15, 2 pp. Joint
8 Amended Complaint, 5/26/15, 8 pp. Joint
9 Amended Answer 10/21/15, 1 p. Joint
10 Prior Written Notice 2014-2015, 6/5/14, 2 pp. Joint
IEP 2014-2015, 6/5/14, 11 pp. Joint
12 IEP 2013-2014, 5/29/13, 12 pp. Joint
13 IEP 2012-2013, 4/3/12, 11 pp. Joint
14 Report Card, 2013-2014, 3 pp. Joint
15 Progress Reports, 2013-2014, 6 pp. Joint
16 All About Kids, Psychological Evaluation, 5/13/13, 5 pp. Joint
17 Visual Alternatives, 5/9/13, 2 pp. Joint
18 Educational Re-Evaluation, 3/4/13 - 3/6/13, 4 pp. Joint
19 WIAT-III, 4/5/13, 9 pp. Joint
20 Assistive Technology Consultation
Recommendations, 5/12/14, 5 pp. Joint
21 Therapy Evaluation, 2/11/13, 4 pp. Joint
22 Re-Evaluation. 12/13/12 & 2/13/13, 4 pp. Joint
23 Psychological Services
Evaluation, 6/14/14, Received 8/19/15, 28 pp. Joint
24 Classroom Observation Windham, 4/30/15, 1 p. Joint
25 PAF Placement Test, 2013-2014, 8 pp. Joint
26 Reading Assessment, 2014, 9 pp. Joint
27 Student Writing Samples, 2014, 3 pp. Joint
28 Windward Report, 5/2015, 2 pp. Joint
29 Student Writing Samples, 1/29/15, 2 pp. Joint
30 Therapy Evaluation, 2013, 7 pp. Joint
31 Teacher Report and Writing Sample, 6/2014, 7 pp. Joint
32 Progress Report Windward, 2014-2015, 11 pp. Joint
33 The Windward School Mission, undated, 3 pp. Joint
34 The Windward School Initial Educational
Screening 4/2/14 - 4/3/14, 2 pp. Joint
35 Parent Notes 6/5/14, 6 pp. Joint
36 Draft IEP, 6/5/14, 11 pp. Joint
36A CSE Review Form, 6/14/14, 5 pp. Joint
37 Reading Level Correlation Chart, undated 1 p. Joint
38 Teacher Checklist: , 6/3/14, 5 pp. Joint
39 Teacher Checklist: , 6/11/14, 5 pp. Joint
40 Omitted
41 Omitted
42 Windward Today, Lower School Arts, undated, 7 pp. Joint
43 Omitted
44 Omitted
45 What's Missing? undated, 12 pp. Joint
46 PAF Placement Test Example, undated, 12 pp. Joint
47 Preparation for Books A through E, undated, 50 pp. Joint
48 PAF Test Single Work Reading, undated, 3 pp. Joint
49 Examiner's copy PAF Single Word, Reading, undated 3 pp. Joint
50 Omitted
51 PAF Lesson Plan Example, undated, 2 pp. Joint
52 Resume, undated 3 pp. Joint
53 Progress Report Grade 3, 2014-2015, 11/14-6/15 12 pp Joint
54 Progress Report, Grade 4, 2015-2016 School year, 11/15, 8 pp. Joint
55 2014-2015 School year Test Results, Undated, 3 pp. Joint
56 . Attendance of Windward Trainings, 4 pp. Joint
57 Omitted
58 Class Schedule for . for 2014-2015 and 2015-2016, 2 pp. Joint
59 CSE Review Notes, 6/1/15, 4 p. Joint
60 PWN,7/ 28/15, 2 pp. Joint
61 IEP 2015-2016, 6/1/15, 14 pp. Joint
62 Email, 8/14/15, 1 p. Joint
63 Fax Cover and letter from to , 8/26/15, 4 pp. Joint
64 District's Email to re: Meeting Notice to CSE,
8/28/15, 4 pp. Joint
65 Email from Parent to , 9/1/15,1 p. Joint
66 Letter from to Parents, 9/4/15, 5 pp. Joint
67 Second Amended Complaint, 5/16/14, 9 pp. Joint
68 Enrollment Contact, Grade 4, 4/2/15, 2 pp Joint
68A Enrollment Contract, Grade 3, 5/16/14, 2 pp. Joint
70 Multisensory reading Instruction, PAF Parts I& II, undated, 1p. Joint
71 PAF Book D & E by , undated, 1 p. Joint
72 Curriculum Overview, undated 1 p. Joint
73 Writing Sample of student X, various dates, 5 pp. Joint
74 Brief Parent Form, 6/14/14, 3 pp. Joint
75 Child Behavior Checklist for Ages 6-18, 6/10/14, 4 pp. Joint
VIII Decision on Extension, 4/18/16, 1 p. IHO
IX Subpoena, 2/3/16, 2 pp. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 17, 2016
X Decision on Extension, 5/16/16, 1 p. IHO
XI Brief to Enter Dr. Ophthalmic Letter, 5/17/16, 4 pp. IHO
XII District's response to the Parents' Brief filed on 5/13/16, 5 pp. IHO
XIII Dr. Letter, 3/21/16, 1 p. IHO
XIV District's Response to the Parents' Second Amended Complaint,
5/17/16, 4 pp. IHO
XV Communicates: Windward Staff Member & , 4/3/14, 1p. IHO
XVI AAPOS Medical Information "About Us" and "Convergence
Insufficiency", 6/8/16, 7 pp. IHO
XVII Decision on Extension, 6/17/16, 1 p. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 12, 2016
XVII Decision on Extension, 6/17/16, 1 p. IHO
XVIII Decision on Extension, 7/18//16, 1 p. IHO
XVIIII Decision on Extension, 8/4 /16, 1 p. IHO
XX Parent's Closing Statement, 8/12/16, 31 pp. IHO
XXI District's Memoranda of Law, 8/12 /16, 41 pp. IHO
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 23, 2016
XXII Parent's Brief Reply to Point II, 8/22/16, 1p. IHO
Footnotes
[11] at 6) from the point that student X had left off at the end of the 2013-2014 school year and that student X had mastered the sight words "the, to, you, your, said, of are, they put, was, from were, very" (Exh. 11 at 4) and he had mastered syllabication with closed syllables (Tr.305-306). She noted that the executive functioning goals were developed as it was an issue so she drafted the study skills goal that student X "will have all materials necessary for class and will write down all his assignments" (Exh. 11 at 6) to address this deficit (Tr.308). She acknowledged that student X was not successful in his previous programs that she hoped that by using PAF that student X could learn to decode (Tr.310). She explained that the three reading goals she developed: (goal 3) "to decode word that include r controlled and open syllables, (goal 4) "to read words with suffixes -er, -est, - full, -less" and (goal 5) to use "a systematic scientifically based instruction approach, the student will make at least one year of progress in the development of his reading" (Exh.