Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name: Student

Date of Birth: May 9, 2001

District:

Hearing Requested By: Parent

Dates of Hearings: December 16, 2014

January 8, 2015

March 18, 2015

July 9, 2015

July 21, 2015

August 13, 2015

September 11, 2015

Record Close Date: January 1, 2016

Hearing Officer: GARY PETERS

TITLES OF PERSONS WHO APPEARED

December 16, 2014 Advocate Parent Attorney District CPSE Administrator District Teacher District Teacher District Speech/Lang. Pathologist District Teacher District January 8, 2015 Advocate Parent Attorney District CPSE Administrator District Teacher District Teacher District Teacher District Teacher District March 18, 2015 Advocate Parent Attorney District CPSE Administrator District School Psychologist District July 9, 2015 Advocate Parent Attorney District Father Parent Mother Parent

July 21, 2015 Advocate Parent Attorney District Director of Special Ed. District

August 13, 2015 Advocate Parent Attorney District Father Parent Mother Parent

September 11, 2015 Advocate Parent Attorney District Teacher District Director of Special Ed. District Teacher District

EVIDENCE

Parent’s Exhbt. Description Date Pages

A Progress to College/Career Report 9/1/13-6/26/15 2 B Progress to College/Career Report 9/3/14-6/26/15 2

DOE

1 ` Due Process Complaint 2/24/14 4 2 District’s Response 3/3/14 3 3 Notice of Appointmenet for IHO 2/28/14 1 4 Report Cards Grades 5,6 and 7 various 3 5 PWN/Consent for Services Jan. 2013 5 6 Evaluation October 2012 6 7 Evaluation January 2013 2 8 Comment Sections of IEP May 2011

March 2011

January 2013

February 2014 4 9 NCR Forms Various 5 10 IEP January 24, 2014 28 11 IEP February 10, 2014 20 12 Minutes-Resolution Meeting February 26, 2014 14 13 IEP and corrected IEP May 23, 2011 26 14 IEP and meeting Notice March 20, 2012 17 15 PWN February 2014 2 16 Letter to Parent 1

BACKGROUND

On the above dates, I conducted hearings, for a child, (hereinafter referred to as ) NYS# 83317 pursuant to the Individuals Disability Education Act (IDEA, 20 U.S.C. section 1415 (f)(3) regarding a special education program, Students with Disability. The hearings were conducted at the School District. At the hearing, “District” was represented by its counsel . The parents were represented by their advocate.

THE PARENT’S POSITION

The Parents allege procedural and substantive violations and are requesting compensatory services for XXXX Parents maintain that xxxxx has been denied a Free Appropriate Public Education (hereinafter "FAPE") for the 2009-2010, 2010-2011, 20112012, 2012-2013, and, 2013-2014 school years.

xxxxx is a 14 year old girl with a disability, classified by the District as

”, and currently is in the 9th grade. She has severe difficulties and deficits in written expression and reading comprehension, and additionally,xxxx has anxiety and self esteem issues. Parents maintain that xxx requires a full day integrated co teacher model with necessary pull outs for individualized specialized reading and writing instruction on a 1:1 basis, assistive technology, counseling, compensatory services. and evaluations.

Parents allege that XXXX should have received 1:1 reading instruction on a daily basis and that XXXX has displayed a lack of progress during the school years in dispute and was caused to suffer socially and emotionally.

Accordingly, the Parent seeks the following:

1. 1500 hours of 1:1 tutoring in math, reading and writing at the ----- -----

Long Island

2. Additional compensatory writing instruction for 850 hours

3. Assistive Technology Evaluation

4. Supportive technology; digital notes/books, smart pen/board, laptop computer

5. Counseling, individually, 2 times per week

6. Neuropsychological Evaluation

7. Parent Counseling/training

8. 1:1 Teachers Assistant, for the entire school day

THE DISTRICT’S POSITION

The District asserts that it provided a FAPE under the meaning of the IDEA. XXXXX was enrolled in an appropriate Individualized Education Program during all contested school years, and made meaningful academic and social progress. The District maintains that it reasonably calculated the IEP to provide educational benefit in the least restrictive environment (LRE).

Although the parents’ complaint alleges a “denial of FAPE” for the school years 2009-10, 2010-11, 2011-12, 2012-13, and 2013-14, the School District maintained that the time period covered by the due process complaint is limited by regulation to the time period February 24, 2014 (time that the due process complaint was filed) and February 24, 2012, two years prior to the filing; therefore, the 2009-10 and 2010-11 school years are outside the time limits allowed by regulation.

THE DISTRICT’S CASE

Ms. ------------- stated that she has been employed by the School th District for 15 years. XXXXX was a student in her class in the 5 grade wherein she served as a General Education Teacher and Ms. ------------ was the Special Education Teacher in the “inclusionary setting”. She described XXXXX. as being polite, hardworking and struggling. She received extra help from: her special education teacher, Mr. ------------ in the -------- Reading Service Program, a Phonics program for decoding words and at the Late Bird Program (TR p. 18).

The witness testified that she and Ms. ---------- prepared XXX’s report card: the Inclusion Teacher does the ELS portion and the General Ed teacher reports on Math, Science, and Social Studies (TR p. 19).

Ms. ------- stated that XXXX made progress, albeit “intermittent at times” and did her homework. The child’s parent was always kept in the loop and appreciative and supportive of anything we offered regarding services” (TR p. 20).

The witness stated that when XXXX entered her classroom she had an I.E.P., and extra help was being provided 2 times a week, and was not I.E.P. driven (TR p. 21). The witness was uncertain as to the exact nature of XXXXX’s deficits in reading as Ms. ----- was the Special Ed Teacher.

The witness testified that there were ----- inclusionary students in the 5th grade class which was a “big number”. XXX struggled with all academic subjects throughout the school year. She stated that XXX had difficulty with expressive writing skills and required individual guidance (TR p. 23). XXXX was able to formulate a sentence and some compound sentences independently, and although she had difficulty she made progress (TR p. 24). XXXX was not provided with assistive technology devices to assist in her writing tasks and required assistance with spelling, diagraming of sentences ,and writing (TR p. 25). XXX had “a lot of great ideas, but to put them on paper she needed assistance” to make them grammatically correct (TR p. 26).

The witness directed to Exhibit #13, an I.E.P. dated 05/23/11 for the 2011/2012 school year and stated that XXXX made some “gains in writing”. She made improvement in that she was able to write a paragraph and correct some of the grammatical errors, which she was unable to do this at the beginning of the school year (TR p. 29).

Upon cross-examination, she could not recall if XXXX mastered any of the goals described in the IEP. Regarding Science, she stated that XXXX had difficulty with materials as the text was at a 6th grade reading level and she was not able to read and comprehend information (TR p. 32). The witness did not recall if XXXX had higher than a 3rd grade reading level at any time during the school year. She had similar difficulties in Social Studies, which arose from the same issues as described herein (TR p. 32).

Regarding writing, XXXX required a great amount of 1:1 support from whomever happened to have a writing group on a given day (TR p. 34). Mr. ----- taught the ----- Program to XXXX but she was uncertain if it was on the I.E.P. or provided as a building level service (TR p. 34). Ms. ----- stated that pull-out services for guiding reading services were provided by Ms. ----- and believed that it was I.E.P. driven (TR p. 35). Services were provided 5 days per week in a reading workshop for one (1) hour, and the guided reading was for approximately 30 minutes (TR p. 36). The reading workshop was described as a mini-lesson, and after a lesson students were separated for guided reading. She stated that XXX was baselined and her instructional and proficient reading levels were formulated by Ms. -----.

The next witness to testify was Ms. ----- has been employed by the School District as a Special Ed Teacher for 13 years. She recalled having . in an inclusion class and co-taught with Ms. ----- for the child’s 5th grade class. She taught reading, writing, math and assisted in science and social studies (TR p. 39). She described XXX as a hard working student, who struggled due to her learning disability. Her difficulties in reading affected other areas of learning and she “made typical progress for a student with a ” (TR p. 40). She recalled that XXXX received and extra help at the ----- ----- Reading Program where she would stay after school and in small group instruction. XXXX also received -----Reading Instruction from Mr. ----- (TR p. 41).

On cross-examination she stated that XXX was classified as . She had deficits in written expression and in all subject areas which include reading (TR p. 43). She benchmarks in September, January/February, and again at the end of the year (TR p. 43). She did not recall XXX’s instructional/reading levels in September or at the end of the school year, only that she did make progress (TR p. 44). She taught her for a full year and was certain that XXX made progress and improved her reading ability (TR p. 45).

The witness stated that a Dolch List is a sight word vocabulary list and was generally not used in 5th grade. She did not recall if XXXX had difficulty with sight words but had coding difficulties and was receiving ----- (TR p. 45). was at a 6.1 level in the ----- Program which was “pretty high compared to other students”, however, this doesn’t correlate with a grade or reading level (TR p. 46). Upon further crossexamination, she stated that XXXX could write a book report independently, however, not at the level of a general education student (TR p. 47). She conceded XXX was writing with the proficiency of a grader.

Ms. ----- attended a C.S.E. meeting for XXX and indicated that “generally placement-specific reading programs” are not put on an I.E.P. She stated that ----- is a program as opposed to a “service”, and at the C.S.E./I.E.P. meeting she was aware that XXX had a deficiency in reading, and that same was noted under the inclusionary setting recommendations. XXX.’s reading needs would have been met through program recommendations (TR p. 49). For the inclusionary class for reading, small group instruction is used; XXX, received ----- in this setting. She stated that the reading goals in the inclusionary setting were specific and not necessarily listed as such on the I.E.P. The witness was directed to Exhibit # 14, the I.E.P. dated 3/20/12 and stated that it was prepared for an annual review and would follow XXX into the next school year. The I.E.P. was to be utilized for middle school, but she could not specifically explain how the reading programs or the inclusionary program was conducted at the middle school (TR p. 51). She agreed that XXX could be provided with an education in an inclusion setting four times a day, fivs days per week.

Upon further questioning of the witness, she stated that the I.E.P. is not as specific as it could be as it utilizes “I.E.P. direct” where there are only a certain amount of options via drop down boxes; however, it must be individualized for student-specific needs (TR p. 52). Furthermore, when considering L.R.E. there are choices such as a learning lab, inclusionary setting, or self-contained setting.

The witness reiterated that in order to address services and reading difficulties, there is a building program wherein “we do an hour of reading and an hour of writing per day” (TR p.57). The extra help, ----- ----- Reading and -----, were provided over and above what the I.E.P. specifically offered (TR p. 58).

The witness stated the ----- ----- Program is provided to students below grade level for one hour, after school, by Mr. ----- and was provided more than once a week (TR p. 60). With respect to writing deficiencies, Ms. ----- testified that she taught specific writing strategies and would work 1:1 with XXX several times a week to revise, edit, or write (TR p. 61). She stated XXXX’s deficits were not so severe, and she “would need 1:1 instruction 3 times a week” (TR p. 62). XXXX was not pulled from class, she was provided services as needed via “----- Teacher Service” (TR p. 63). She considered this placement to be part of the consideration for L.R.E. She described XXXs writing deficits as “moderate” and addressed through her placement on the ----- direct model (TR p. 64). She did not recall how often she provided those services, except on an “as-needed basis”.

On re-direct examination, Ms. ----- testified that XXX did not require all instruction to be simplified but that it would be read aloud or simplified “as needed”. Upon re-cross-examination, the witness again stated she could not speak to specific levels except was certain that XXX made one year worth of progress (TR p. 68). XXX’s ability went from writing one paragraph to writing multi-paragraphs (TR p. 69).

The next witness to testify was ------ ----- who has been employed by the School District as a for seven years. She had experience with the School District and before that for 20 years as a private practitioner. She recalled working with XXX in the 5th grade and provided services (TR p. 76). Ms. ----- provided XXX with receptive and expressive language instruction including understanding of language, vocabulary, sentence structure, reading comprehension, oral comprehension, and the ability to relay information in an appropriate manner (TR p. 77). XXX. was provided with services two times a week in a small group which did not contain more than -----students (TR p. 77). -- ----- recalled that the services were provided in 5th grade, and a recommendation was made that XXXX continue with similar services when she moved to the middle school in 6th grade (TR p. 78).

Upon cross-examination, the witness did not have “specific recollection” if XXX had problems with blends, articulation, and/or grammar. She recalled that XXX had difficulty with her ability for vocabulary, grammar, sentence structure; however, did not have specific recollection how she progressed from one month to the next (TR p. 81). She stated that XXX’s progress would go up and down, but that XXXX made progress during the 5th grade.

Upon re-direct examination, the witness was directed to Exhibit #13, the unrevised 2011 I.E.P. and stated XXXX. made progress in identifying and using vocabulary related to grade level curriculum, categorization and association skills (TR p. 85). Additionally, XXX “verbally discussed an object in terms of attributes, function, similarities, differences and comparisons”, and she also made progress following multistep directions presented orally” (TR p.86).

On re-cross-examination, the witness stated the multi-step directions would depend on the linguistic content of the instruction and XXX’s success and/or difficulty would depend upon the levels of instruction (TR p. 88). Ms. ----- opined that by the end of the school year, XXX was able to generally follow 3 step instructions in most instances (TR p. 89). She explained the 3 step directions as being layered from simplicity to complexity and that the goals were created from “I.E.P. direct”.

Concededly, the witness stated that XXX had serious difficulty in understanding expressive and receptive language, and committee based recommendations were made for XXXX to receive services two times a week for 30 minutes in the 5th grade (TR p. 93). She did not know if there was a district policy to provide services 2 times a week for more than 30 minutes (TR p. 94). However, if a child required high-intensity speech services she would have to score very low in order to get services 5 times a week. Additionally, XXX was receiving other support services and academic areas were provided with instruction via the inclusionary class setting (TR p. 96).

Ms. ----- testified that the district did not provide services after school and that XXXX did not require them (TR p. 97). She stated that only a severely involved child would receive services 5 times a week, and it is “very rare” (TR p. 98). She believed that the services provided were for no more than 30 minutes during the 5th grade, but she was uncertain if this was a District policy (TR p. 99). Upon further re-direct examination, she stated she had the ability to specifically tailor services provided for XXX, via a utilization drop-down box.

On further cross-examination, Ms. ----- stated that language is a very complicated form of instruction which does not necessarily follow a curriculum. XXX follows what is going on in the classroom and she focuses the child on the area that the child is having difficulty with (TR p. 102). She described the drop-down box goals as being broad and that as she works on the goals, they become more specific based upon the child’s test results and progress from the year before. Not every specific topic that she works on with the child is listed, however, are still relevant to a particular goal. She conceded the dropdown goals could be considered too broad, however, she constantly works in the areas described and breaks items down from simple to complex (TR p. 104).

The next witness to testify, ----- -----, certified in Special and General Education, has been employed by School District for 7 years. While XXXX was in 6th grade, she provided services to her as a Special Ed teacher in an inclusionary classroom. In September, 2012, XXX was in her inclusion English classroom and ----- ----- was the Regular Education Teacher. She stated that XXX. did not stay in the setting for the entire year and that she brought XXX ’s case to the school-based team as XXX was struggling with comprehension and coding (TR p. 109). She said it was important to continue testing to determine her exact reading level as XXX continued to struggle. A team meeting was called to ascertain her ability in other areas including Social Studies and Math. Ms. ----- stated that XXXX’s parents were present during team meetings and participated (TR p. 111). She was in the unique position of being an Inclusion Teacher and a Self-Contained Teacher and firmly believed that the testing was required. The school administered the Scholastic Reading Inventory Test, which was part of the ----- --- -- Program to determine XXX’s reading level. Ms. ----- described two reading programs: the ----- ----- and, ----- ----which are the basic decoding programs. XXX participated in both programs; for individualized instruction she received ----- ----- which was implemented in the 3rd quarter of the 6th grade school year. Both ----- ----- and----- ----- were presented in a small group setting with approximately nine students. She stated that when XXX began in the self-contained setting she was a “different child”, she would raise her hand, participate in class activities, and was enthusiastic and confident (TR p. 113). Ms. ----- attributed XXX’s success to the fact that she was reading and had a comprehensive program in place (TR p. 114). Ms. ----- was familiar with Academic Intervention Service (AIS) and stated that XXXX received services during the time that she was in the inclusionary setting to support Inclusion English. She testified that she taught an I-Care Program which was intended to expose self-contained students to a general education curriculum (TR p. 114). XXX participated in the ----- ----- Program, 2 days per week after school. With reference to the double block for ----- ----- and ----- ---- -, the witness stated she taught XXXX 2 periods a day, on a daily basis. Although XXX began the program in the middle of the school year, she made steady gains and described her progress as “intermittent”, which was typical of learning disabled children (TR p. 116).

Upon cross-examination, she stated that the ----- ----- Program is not a mandated program, requires parental approval, and was beneficial for XXX (TR p. 117). The ----- -- program was necessary to address the coding and comprehension issues (TR p. 118). She described the ----- ----- and ----- ----- programs as consisting of 220 minute rotations in a blended model .

The witness stated that she worked with XXXX in 4th grade while she was in an inclusionary class, which had 5 or 6 students at the back table of the classroom in a small reading group (TR p. 119). XXXX. received specialized reading every day in a “1 hour reading block” which was provided for all of the students. The witness did not have recollection of XXX’s reading level at the end of 4th grade but recalled that she had deficits in writing and spelling. She administered the ----- program to address the deficits (TR p. 122).

Ms. ----- stated that the district’s Reading Specialist is Mr. -----. While XXX was in the 4th grade, she believed the Reading Specialist was ----- -----. Upon further crossexamination, the witness stated that XXX. was a multi-sensory learner and had problems with expressive and receptive language. She was familiar with assistive technology, however, in her opinion, XXXX did not require same. She believed that it is more effective to sit with children such as XXX and brainstorm, utilizing graphic organizers, etc.

Ms. ----- stated that she was aware that during the 4th grade, XXX had difficulty doing written homework independently and received extra help which was provided at the back table. Additionally, before the school day began, XXX would receive extra help, but she could not recall specifics (TR p. 127).

XXX received extended test time. She recalled that when XXX was in the 6th grade, the tests were read to the children and the directions were explained and simplified (TR p. 128). To the best of her recollection, XXX was baselined in October of the 6th grade and was struggling. At that time she believed that XX would benefit from a selfcontained program and addressed it with the Building Level Team (TR p. 129). She reiterated that recommendations were made for the ----- ----- Program which was not I.E.P. driven and required parental consent (TR p. 131).

Upon further questioning of the witness, she testified that . made progress utilizing ----- ----- and ----- ----- during the second half of the school year (TR p. 132). XXX received a double block of Reading in ----- ----- and ----- -----. The program would not be on the I.E.P. as it is part of the 15:1 self-contained program (TR p. 138).

Ms. ----- was directed to Exhibit #10 which indicated that XXX would attend a special class of 15:1 for Reading, English, and Math. Ms. ----- stated that failed the State test and was not receiving A.I.S. services. XXX. was in a very limited inclusion class where students can take A.I.S. service to support inclusion, however, because it was a double block of 15:1 ----- -----Program, A.I.S. was not an option. Instead, XXX was receiving 2 periods of personalized reading including ----- -----and ----- ----- (TR p. 140).

Upon re-direct examination, Ms. ----- stated upon reviewing the 2011 and 2013 I.E.P.’s, there was parental consent for the recommended programs (TR p. 146). She did not recall any objections or issues raised by the parents for prospective programs (TR p. 147).

The next witness to testify was ----- ----- who has been employed by the School District for 13 years as a Special Education Inclusion Teacher and selfcontained Teacher (TR p. 180). She worked with XXX in 6th grade inclusion setting and taught her math for 2 quarters in the school year. She thereafter continued to work with XXX in a self-contained math class (TR p. 181). ----- ----- was her Regular Education Teacher and she served as the Special Education Teacher. Upon XXX being placed in a self-contained classroom, she began to show “a little more progress” and began to improve emotionally (TR p. 183).

The witness was directed to Exhibit #4, XXX’s 6th grade report card , while in the self-contained class. XXX received a grade of 92 in the 3rd marking period and a grade of 79 in the 4th marking period. The ----- ----- Program was implemented and offered twice a week; teachers recommend students who they believe require extra help. She identified XXX as one of the students who came to the I-Care Program on a voluntary basis (TR p. 186).

The witness described XXX as having difficulties in math, and her processing and memory functions were problematic. She was able to do single steps, however, multistep directions involving reading word problems were difficult for her (TR p. 188).

The witness stated that she did not return to the C.S.E. meeting to share information regarding XXX’s math skills since this was the responsibility of the “Sponsor Teacher” (TR p. 189). Upon further inquiry, Ms. ----- stated that XXX could work independently in math and did very well in the self-contained setting. An inclusion class could include up to 30 students. At a team meeting, the witness stated that she and Mr. ----- discussed the benefits of the self-contained class, and the parents were present. Following the team meeting, recommendations were made for the CSE to reconvene.

On cross-examination, Ms. ----- stated that in the first half of the year, while XXX was in the inclusion class she was below grade level. In the self-contained class, the same curriculum is presented more slowly, with up to 15 students (TR p. 199). XXX’s grades in the first quarter were a 60 and in the second quarter 70. She did not have recollection if . knew multiplication tables, 2 digit division, or 3 digit addition with carrying over. (TR p. 201).

The witness further stated that in order for XXX to achieve passing grades which she did in the 3rd and 4th quarter, she would have had to master the skills as previously described (TR p. 201). Ms. ----- stated that homework and testing could be tracked and accessed through a program called E-School (TR P. 202).

Upon further cross-examination the witness stated that in a self-contained class she would write instructions/directions for tests or quizzes on top of the test document and that the students also receive individual prompts (TR p. 204). Ms. ----- testified that homework comprises 20% of the student’s grades, and if they show an attempt they will get a “2”, otheresie they receive a “0”. She didn’t know that XXX took many hours to complete homework assignments and that the information was not shared with her by the parents (TR p. 205).

The witness stated that XXX was not struggling in the self-contained class and made progress in certain areas as evidenced by her grades (TR p. 207).Additionally, recommendations are made by he team about where student should be placed, and the C.S.E. makes the final decision as to what can be provided. She stated that no recommendations were made for XXX to get individualized special 1:1 math instruction, since such a program does not exist (TR p. 213). No recommendations were made for individualized reading instruction, as the child was placed in a ----- ----- program which is self-contained and individualized.

On re-cross-examination, Ms. ----- testified that she did not participate in creating goals for 5th grade. In 6th grade she assisted in creating goals in preparation for the child’s 7th grade school year. She informed the Sponsor Teacher as to what XXX’s areas of weakness were (TR p. 219).

----- ----- testified that she was XXX’s 7th grade science teacher, and she provided instruction to XXX in her inclusion class, which she estimated had between 23 and 28 students (TR p. 225). XXX was as an average student and maintained an overall average. She was directed to Exhibit 4, XXX’s report card, and confirmed that she did complete the course and received a grade of The witness stated that at the beginning of a year she administered a Life Science pre-assessment to deteremine a student’s level, and that XXX scored very low. She administered the same test during the 3rd week of school and XXX scored an . Ms. ---- - described XXX’s progress as “up and down” and stated that “it was slow”, and that XXX has a significant disability” (TR p. 227).

The witness was present at a team meeting during the first half of the school year and all her teachers were present. Ms. ----- was also XXX’s English Teacher (TR p. 228). She recalled that there was concern as XXX was not speaking in class or requesting help. Ms. ----- indicated that XXX was doing well in the self-contained small class setting for her subject area and suggested a smaller setting for all subjects. She recalled the parents were adamantly against that recommendation (TR p. 229). She noted the parents preferred that XXX be retained/left back if she failed in 7th grade but did not want her in a self-contained setting. The witness stated that the parents did not seem to be concerned about how it would affect the child’s self-esteem to be held back with her friends moving on (TR p. 230).

Upon cross-examination, Ms. ----- stated she did not know the child’s reading level, however, acknowledged that it was “low”. A 7th grade level textbook was provided to students, which was kept at home; however, XXX did not work from the textbook. The witness stated that she types notes for all her students, which gives her time to do practical activities in the Science room and lab (TR p. 232). She reiterated that there is no extensive writing done in the class and that she assigns little homework (TR p. 233).

Ms. ----- stated that she taught science to XXX in the inclusion class and that the entire class, even non-disabled students, received copies of notes since a student’s time is better spent doing laboratory activities (TR p. 236).

Ms. ----- described the testing administered to the students as requiring one word answers, no extensive essays, and a few “fill-in” type answers (TR p. 239). The witness reiterated that the parents expressed to her that if XXX failed, they wanted her to be retained. The only knowledge she had with respect to self-esteem issues regarding came from the parents (TR p. 252). The parent’s concerns regarding XXX’s self-esteem related to her being in the self-contained classroom (TR p. 243).

Ms. ----- stated that XXX “held her own” in Science and that was a good score for someone with a low I.Q. She believed that XXX. received her A.I.S. services after school or through the ----- ----- Program; she was also aware that XXX had a double block of Reading during the day (TR p. 247).

The witness stated that all students , including XXX were provided with calculators and she did not know if XXX. could multiply without the use of a calculator. She also stated that XXX has written complete sentences during lab (TR p. 248).

The next witness, ----- -----, stated she has been a Special Education Teacher for 8 years with the School District. She has known XXX. for approximately a year and a half and met her as she was entering 7th grade; she works with her currently in the 8th grade (TR p. 252). XXXX was in her 15:1 self-contained English language arts program in 7th grade and she worked with her on reading, comprehension, fluency, and decoding, for two 42 minute sessions per day (TR p. 253). The witness stated that she utilized the------ -----Program and the ----- ----- -----Program. She works with both programs, two periods per day and that all of her students are instructed in the programs. They received whole group, small group, computer and independent instruction (TR p. 253). The witness stated that she is certified in ----- ----- ----- Reading Instruction.

Ms. ----- testified that during 7th grade, XXX was measured for progress in September, November, and January displayed “a steady rate of growth (TR p. 255), and continued to show progress and improve for the duration of the school year (TR p. 256).

The witness testified that the school is not permitted to list methodologies on the I.E.P. as they change from year to year depending upon the district, teacher and/or individual student. In the Fall of 7th grade, Ms. ----- stated that she met with the Team, including the teachers and parents, and, they discussed XXX.’s progress in the 15:1 selfcontained setting. She recalled telling the team that XXX participated, read aloud, asked questions, did well socially, and, thrived in the setting. The parents did not inquire why their child was not in the self-contained class for additional settings; however, they were intent on getting answers to questions concerning retention/leaving back of their child in the 7th grade (TR p. 258/259).

Upon cross-examination, she reiterated that it is the district’s policy not to list specific programs on the I.E.P., but students could receive related services on an I.E.P. Ms. ----- stated that she is aware that XXX. has speech difficulties and reading deficits, and that she did not recommend that XXX receive specialized individualized reading instruction 3 times a week for 30 minutes, since she was in her small group setting (TR p. 262).

Ms. ----- was directed to Exhibit #10, the I.E.P. dated 1/24/13 (7th grade) and confirmed that it indicated that had delays in reading comprehension and decoding, demonstrated difficulty with written expression including paragraph structure and grammar, and that she needs to improve (TR p. 265). She testified that her needs would be addressed in a special class in Language Arts in a 15:1 setting. Although the I.E.P. did not indicate individualized instruction, she conceded that any student “would benefit from one on one reading instruction” (TR p. 267). She did not believe XXX required individual instruction as she was functioning in her class and making progress (TR p. 267).

Ms. ----- stated that she was XXX’s reading teacher throughout the 7th grade in the special 15:1 reading class, and that XXX was at the beginning of the 6th grade reading level when she left the 7th grade (TR P. 272). Currently, XXX was utilizing the ---- Program wherein grade levels were not being measured. Although she is on a 3.3 ---- - level, in 8th grade; this does not equate to grade level. XXX continues to have difficulty with the coding, encoding, and vocabulary, depending upon the materials.

The witness testified that when she met XXX in 7th grade she had difficulty with age-appropriate vocabulary and continues to have that problem. Currently, she only works with her in the ----- Program after school.

Ms. ----- was directed to the I.E.P. and stated she did not know why there was no specific goal for decoding on the I.E.P., despite the fact that she has had difficulty for at least 2 years. With respect to addressing deficiencies in phonemic awareness, the goals required that be taught multiple meaning words as they relate to phonemic awareness and phrases (TR p. 282)

Ms. ----- stated that she did not read the ----- ----- Educational Report for XXX and was no longer XXX.’s teacher in September of 2014. XXX. had difficulty in Writing in 7th grade and that there were 5 computers in her classroom for the students and that they were used frequently for Google activities, etc. (TR p. 294). She conceded that at times XXX benefitted from Assistive Technology, and that for certain homework assignments Assistive Technology could have been benefical to her (TR p. 295).

Ms. ----- stated that during the year she worked with XXX and she had difficulty with encoding and did not compose complex sentences. She was given homework, however, was unaware that XXX’s parents assisted and that she was unable to do her homework by herself (TR p. 296).

For the 2012/2013 school year, XXX was with her for 2 periods per day for 42 minutes per period for Language Arts. It was a self-contained classroom and XXX received 1:1 instruction. Ms. ----- conceded that although the child wrote sentences, they were not “typical” for a 7th grader” (TR p. 300).

On a re-direct examination, the witness reiterated that XXX had Assistive Technology at her disposal. She stated that homework assignments were posted on the school E-Board on the District’s website and XXX’s assignments were posted in her grade book.

----- ----- testified that she is employed by the Rocky Point Union Free School District as a 6th & 7th grade Math teacher and has held that position for 14 years. She provided instruction to XXX. in 7th grade, in an inclusion class with approximately 25 students (TR p. 309).

Ms. ----- stated that the final examination is a district-designed exam, administered to all students regardless of their mathematical ability; and, in her opinion, XXX made progress during the school year (TR p. 310).

Upon cross-examination of this witness, she stated that there were 25 students in the general education inclusion setting. The inclusion teacher for special education in the classroom was ----- -----. She was the General Education Teacher and both she and the Special Education Teacher provided services. The witness did not attend a C.S.E. meeting. Although she did not have specific recollection, she believed at some point during the year she provided 1:1 instruction for math work problems for XXXX. She recalled that XXX was in danger of failing Math during that school year and that she passed 2 quarters and failed 2 quarters. She did not pass her final exam and recommendations were made for XXX to go to summer school (TR p. 316). The witness was directed to Exhibit #4, the child’s report card, and stated that XXXX received a in the first quarter, in the second quarter, for the third quarter, for the 4th quarter, and on the final exam. To the best of her recollection, XXX was able to solve division problems using a calculator (TR p. 320).

Upon re-direct examination, Ms. ----- stated that based on the child’s ability level th in 7 grade, she achieved in accordance with her ability level (TR p. 321). The witness testified that XXX made meaningful educational progress in light of her disability and when she did her homework, prepared and attended school she would pass. Ms. ----- stated that there were extra help in the morning on Wednesdays and Thursdays, and to the best of her recollection, XXX attended Math Help perhaps 4 times each quarter (TR p. 324).

The next witness to testify was ----- -----, who stated that she has been employed by the School District for 8-9 years as a School Psychologist; she is licensed and certified. The witness administered the ----- ----- ----- for Children, Fourth Edition, known as The ----- ----- on October 25, 2012(TR p. 355). The test results included 4 composites, and XXX’s full-scale I.Q. fell within the range. The witness elaborated and stated that there were sub-tests wherein the first was Vocabulary, the second was called “Similarities”, and the last sub-test was called “Comprehension”. The composite verbal comprehension score was the verbal reasoning composite score was the working memory score was and, in processing speed XXX received score of ; all scores were in the low average range. The witness stated that XXX’s full-scale I.Q. was an within a low average range (TR p. 362).

Dr. ----- testified that he is the Chairman on the CSE for the School District. He began working for in July of 2012 and is finishing his third year. His duties and responsibilities include chairing C.S.E. meetings, organizing information and reviewing I.E.P.’s. (TR p. 366).

Dr. ----- was present and chaired meetings for . in January, 2012, and February, 2014, and, he believed both parents were present. Dr. ----- stated that a Sponsor Teacher would prepare a draft I.E.P. which was brought to the CSE for revision to be utilized at the meeting (TR p. 368); and, changes to the draft document, if any, would be discussed at the meeting, but he had no specific recollection of changes (TR p. 370). All services and programs listed on the I.E.P. were discussed at the C.S.E. meeting with the parent’s participation (TR p. 371). Dr. ----- was directed to District Exhibit #11, which was identified as the February10, 2014 I.E.P. He believed that two I.E.P.’s were prepared: one was a program review for the current year; and, the other an Annual Review for the following year. Dr. ----- stated that both parents participated in this meeting; services and programs were noted on Page 6 of the I.E.P. and also included testing accommodations..

The witness was permitted to refresh his recollection by comparing the two I.E.P.’s, and he noted that following substantive changes: the District changed models of inclusion, where it went from the C.T.D. model to the integrated co-teaching model. The C.T.D. model, is the consultant teacher service direct model. It differed from the integrated co-teaching model of inclusion currently being used, in that the co-teacher is the consultant teacher and the special ed teacher is specifically working with special ed students within the general education class as opposed to when in the integrated coteaching model the two teachers are working seamlessly together (TR p. 377). Furthermore, aside from the change in program as described above, there were no changes in services; that the parents were in agreement and consents were signed (TR P. 378).

Upon cross-examination the witness stated the parents signed ongoing consent forms to permit the student to continue in Special Education. He was aware that the School Board makes a determination and agreed on the committee’s determination in a board meeting that takes place after the C.S.E. meeting and to approve the I.E.P. (TR p. 379).

Dr. ----- stated that XXXX did not have assistive technology as it was not a concern of the staff or of the Parent (Tr. 381). The staff preferred the use of graphic organizers and papers/pencil devices to help XXX in her writing. Furthermore, the programming and services provided to XXX through the I.E.P. had meaningful benefit towards remediating and addressing her learning disabilities (TR P. 384)

Dr. ----- reiterated that he believed the teachers had addressed the child’s needs and that assistive technology would not have been required for XXX. The witness also testified that at the first C.S.E. meeting the child’s standardized testing was reviewed along with curriculum (TR p. 387).

Dr. ----- stated the----- ----- services are not I.E.P. driven, they are a building service. Additionally, the I.E.P. specifies reading programs wherein the student’s needs are indicated in the I.E.P. document (TR P. 389).

The witness was directed to Exhibits #10 and #11 and requested to provide information as to how the I.E.P. addressed this child’s deficits; he stated that in programming, the special class for reading in a 15:1 environment one time daily for 42 minutes appears on both I.E.P.’s. (P. 390); the group could consist of up to 15 students and possibly less. The witness stated the 42 minutes of reading instruction could be provided individually, in group and in small groups (TR p. 393). The teacher would determine how much individual or small group attention that XXXX might receive. Dr.--- -- reiterated that no one recommended that the student receive reading instruction in a small group or individualized reading on a daily basis.

In 2013, based on the ----- ----- Test, the child’s reading scores fell between & which were within normal limits for comprehension and reading fluency. He acknowledged that the I.E.P. mentioned that the child has delays in areas of reading comprehension, decoding, and demonstrates difficulty in reading expression and stated it was “below grade level”.

Dr. ----- testified that prior to the hearing he knew of the ----- ----- ----- -----, however, he did not have knowledge that they provided 1:1 reading instruction. He was unaware that the District was contracting with ----- ----- ----- ----- on a consulting basis and to provide instructions to children (TR p. 399).

Dr. ----- stated the ----- ----- Program provides small group and individual tutoring for students across subject areas; sometimes a specific methodology and sometimes study skills and is available for all students (TR p. 401). He believed the parents were notified of the program (TR p. 402). Dr. ----- believed that XXX was considered a conscientious student, pleasant and who was applying herself and trying (TR P. 406).

THE PARENT’S CASE

The child’s father, hereinafter referred to as ---- stated that his daughter has been in the School District since Kindergarten. He first noticed difficulty with his daughter’s speech prior to her beginning school; however, the problem in school became severe in 5th and 6th grade (TR P. 453). He stated that teachers in elementary school told him that his daughter was “a joy, great to have” and her learning difficulties were not addressed. Her difficulties became more apparent in 6th grade when “she was bombarded with mass amounts of homework and she could not do it” (TR p. 454). Her described difficulty in studying for exams with his daughter and shared his problems with the school staff in 6th grade. He attended open houses, met with the teachers and did not receive assistance. He was told to check the E-Board which most of the time it was not operative and homework would typically take at least 3 hours (TR p. 456).

---- stated that his daughter did not know how to study, prepare for a test, and could not manage her time. He believed that she hated the work associated with school, made no friends, ate lunch alone, and was withdrawn (TR p. 456).The witness stated that his daughter became more combative in order to avoid doing her homework and schoolwork. She gave up team sports as she didn’t have time to complete her academics (TR p. 457).

------stated that he is seeking individualized instruction in Writing and Reading on a daily basis. He was familiar with the ----- ----- Program and described it as an afternoon small group setting. It was his understanding that the program was supposed to provide help with English/Language and to assist in making the students read and write at a higher level (TR p. 458).

The witness stated that the District has never provided his daughter with individualized Writing and/or Reading instruction. He recalled making these requests to Mr. ----- and indicated that he was told that “she doesn’t need it”; he offered the ----- ----- as a substitute program (TR p. 461). stated that his daughter attends ----- ----- and he believed that she does homework there. During the summer she attends ----- ----- however, she plays soccer instead of doing school work (TR p.463). For the last 2 summers his daughter engaged in recreational activities at ----- -----, however, he was uncertain if the teacher was providing teaching or recess (TR p. 464).

The witness stated that his daughter became withdrawn and was “very down on herself, calling herself stupid and dumb . . . These behaviors manifested between 6th and 7th grade (TR p. 465). The parent stated that although his daughter struggled in 6th & 7th grade, she was put into a smaller class setting and that “her grades popped up, her spirits popped up, her attitude popped up, definitely became a different kid”. She went from passing with poor grades to a average (TR p. 466).

----- stated that his daughter did not make “any substantial gains in 7th grade; she could read but could not comprehend what she was reading. Her writing was marginally adequate. He is uncertain as to whether or not the school is inflating her grades; tests are provided more than once; if a child fails a math test, they can repeat the test the next day and get a passing grade (TR p. 468).

The witness described his daughter’s Math grades and progress as being horrible in the last school year; wherein he would have to get tutors for her in 7th grade. He stated that the report card indicated that his daughter was average and at parent teacher conferences, the only information he received was that his daughter was a pleasure to have in class (TR p. 471). The Math teacher told him that “all my kids are having problems”. He was concerned as his daughter was receiving grades in the 20’s and 30’s and was told “Don’t worry – she got a 70 the next day. He believed that his daughter was holding her own in science. He was unsure with his daughter’s grades on the ELA standardized tests in 7th and 8th grade.

Upon further questioning, ----- stated that his daughter still has deficiencies in her writing skills and requires a 1 on 1 reading help (TR p. 476). He described the downward spiraling in Writing and Math during 6th & 7th grade and that XXXX was given tests and re-tests and she was passing (TR P. 482).

------ stated that he reached out to the Principal in 6th & 7th grade, and was directed Mr. -----, the Guidance Counselor. In his opinion, Mr. ----- did nothing to assist. He described the meetings with Mr. ----- as “morphing” into C.S.E. meetings (TR P. 485). It was his recollection that he went to the school, had meetings, and shared information about his daughter’s difficulties for at least a year prior to the C.S.E. meeting (TR P. 486).

The parent testified he preferred that his daughter would be retained/left back and that he expressed his wishes to the Principal, Mr. ----- and other people at the C.S.E. meeting. These discussions took place in 6th and 7th grade. He described the difficulty in helping his daughter do homework for several hours a night and that she often would tantrum and cry; he shared this information with the school personnel (TR p. 489). Furthermore, he stated that the school never offered his daughter building level counseling during that time. He requested that Mr. ----- be removed as his daughter’s guidance counselor.

The witness was provided with Exhibit #9 which were various N.C.R. forms which were signed when his daughter was in the 6th grade. The forms provided additional reading time, a special class, a consultant teacher, therapy, extended time for test taking, directions to be read and re-read (TR p. 499). The witness was directed to Exhibit #12 and stated that the form indicated that was added to his daughter’s regimen.

The parent was uncertain as to when his daughter actually received services, if any, as he reiterated the morphed into meetings. His best recollection is that she receive services from a Social Worker in 8th grade. He conceded that his daughter passed her courses in English, Math and Social Studies, having achieved a grade of at least 65. When questioned as to his recollection concerning his daughter’s achieving an 82 in Math, he attributed that success to re-taking every test (TR p. 506).

On re-direct examination, the parent was provided with copies of the I.E.P.’s dated 2/10/14 and when directed to the Annual Review, he stated that the document did not list or as a related service.

The next witness to testify was ----- -----, the Director of Education for the School District, identified Exhibit #2 as the District’s response to the due process complaint. ----- never had the opportunity to meet XXXX and has not observed her in a classroom. She reviewed her I.E.P. but not the entire file.

With reference to a C.S.E. meeting that took place on February 10, 2014, the witness stated that based on the I.E.P. XXX was receiving services and the parent agreed as per the minutes in the I.E.P. (TR p. 541).

The witness stated that the due process complaint requested services that were not discussed at the I.E.P. meeting. All attendees were present, a consensus was reached and agreed upon as per the recommendations (TR p. 542). Ms. ----- testified that she first became aware that XXX’s parents were requesting individualized reading for their daughter when she reviewed the due process complaint (TR P. 544)

Ms. ----- testified she is charged with overseeing the people who run the CSE and is responsible to provide children with a FAPE. She met with the parents following the filing of a due process complaint at a resolution session in March of 2014 (TR P. 545). Based on her understanding, XXXX was receiving reading at the ----- ----- after school program; she was also receiving services through the ----- ----- program (TR P. 546).

Ms. ----- was familiar with the ----- ------ ----- and knows ----- -----, who has been contracting with the District. The ----- ----- facility personnel were providing direct instruction to a student in the School District. She became aware that Ms. ----- performed an evaluation for XXXX which was requested by the parents; the evaluation was paid for by the District (TR p. 548).

Ms. ----- testified that when the answer to the due process complaint was filed, had not yet been evaluated and/or tested by ----- -----. The C.S.E. Chairperson, Dr. ----, would be responsible to review the evaluation and make recommendations and that it was not within her job description (TR p. 551). At a C.S.E. meeting, the teachers, parents, teacher reports and progress evaluations are reviewed. The parents will have an opportunity to express their concerns and the team would decide what the best program was. Based upon the C.S.E. meeting, the agreement between the Teachers, and the Parents, that as far as she was concerned, the program was selected to meet the student’s needs (TR p. 554).

The witness testified that with respect to the District’s answer to the due process complaint, that the I.E.P. was reasonably calculated to ensure educational progress and that the recommendations were taken from teachers and placed on the I.E.P. The teachers are responsible to make sure the student is receiving the proper accomodations and modifications (TR p. 556).

Ms. ----- stated the ----- -----Program is for “extra tutoring” and is administered in small groups and sometimes individually (TR P. 556).The work at ----- ----- is selected based upon the children’s weaknesses, with input from the Guidance Counselors and Teachers without no specific goals as in an I.E.P. (TR P. 557).

Ms. ----- testified that XXXX is going into the 9th grade and was unaware if the child was at a third grade reading level. She had no knowledge the parents were dissatisfied with any of the services until she received the due process complaint (TR p. 558). Upon further questioning, the witness stated that the parent signed a document acknowledging that the student will receive services and if they changed their mind they have a right to an impartial hearing (TR P. 560). Ms. ----- testified that when she reviewed the initial due process complaint, it alleged that the District failed to provide assistive technology; however, there was no initial assistive technology requests made and the C.S.E. did not address these concerns (TR p. 562). There is nothing in the minutes to confirm that the parents requested or had other concerns. After the due process complaint was filed, concerns were addressed at the resolution session (TR

P. 563).

Ms. ----- acknowledged that in the resolution session, XXX’s self-esteem issues were mentioned as well as a request for counseling. The I.E.P. recommended to provide counseling services for the child. She was unaware that the parents ever requested services from Mr. ----- prior to the resolution session (TR P. 563). Ms. ----- testified that Assistive technology was not requested at the IEP meeting. Upon the parent’s requesting, the Evaluation at the resolution conference, it was ordered and the child is utilizing Assistive Technology (TR P. 565).

Ms. ----- stated that “prior written notice” is a document that is filled out and sent to the parents to tell them what the C.S.E. is anticipating with respect to programs and/or changes to the I.E.P. The prior written notice is generated through I.E.P. Direct and signatures from the District are placed on it as the document is created. The signature could be the Chairperson or the School Psychologist (TR p. 571). The witness stated that she was uncertain if . made appropriate progress during the last 2 years in Reading and Writing and would not have that knowledge (TR p. 573).

The answer to the Due Process Complaint was unsigned, however, a covering letter was signed and was sent with it. District’s Exhibit #16 was marked for identification which was the covering letter sent with the answer to the due process complaint. The letter was dated March 3, 2014 (TR P. 578). The witness testified that the covering letter also included a procedural safeguard notice.

Upon further redirect examination, the witness stated that District #16, was mailed by her secretary and that the she had personal knowledge of same. Ms. ----- stated that she was unaware that the parents maintained that they did not receive the answer to the due process complaint (TR P. 586). The witness testified that Exhibit #16 was taken from the Child’s file and that it would not be placed in the file if it had not been sent.

The next witness to testify was ’s mother, hereinafter referred to as -----who stated that she filed a due process complaint stating that her daughter requires help in all of her schoolwork, however, mostly in reading (TR P. 612). The witness stated that currently her daughter will be beginning 9th grade in September, 2015. She first became aware that she had problems with reading in 6th grade. It was her impression that her daughter was placed in a smaller class and that she .) is a “damaged child that needs help ” (TR p. 613). -----. described her daughter as having difficulty with her homework which causes arguments at home and that she refers to herself as “stupid” (TR p. 613).

The witness stated that her daughter actually completed a book report as part of the Read 180 program in 8th grade and her grade was a . It was her perception that her daughter is unable to work independently and complete a book report (TR p. 616).

------stated that the school is aware that her child cannot work independently and that she asked for individual reading instructions; both she and her advocate were refused the request (TR page 616). She recalled a conversation in the C.S.E. meeting where the district offered the ----- ----- Program which he described as a “Joke”. She stated that her daughter has indicated to her that the ----- ----- program is really “playtime”. XXXX told her if that if she goes to ----- ----- from 8:30 a.m. to 10:30 a.m., she does some work on the computer, however, most of the times they “are playing”

She stated that she became aware that her daughter is on a d grade reading level according to the “----- documents” (TR p. 619). She recalled having a conversation with Mrs. ----- on the phone and stated that she was a ----- ----- Teacher; and was told to “fight for J.P.”.

The parent described her daughter’s difficulty in writing stating that it often did not make sense and had a lot of misspelled words. She requested 1:1 writing instruction and did not receive same for XXX The parent stated that she never received a “Prior Written Notice” from the District. She recalled signing something at the end of the C.S.E. meeting and handing it to the Secretary.

Mrs. P. also stated that the school offered with a School Psychiatrist/Social Worker; her daughter told her that she hates life and school (TR p. 624). She confirmed that as far as she knew, every Wednesday and Thursday she came to school early for extra help and every day Monday through Thursday she stayed for the ----- -----Program. In her opinion, the extra help did not yield meaningful progress for her daughter and there was no improvement in her reading (TR p. 625).

The witness was directed to Districts #11, the I.E.P. dated February 10, 2014 and stated that there was a provision for Special Class Reading one time per day for 42 minutes. She believed that in 7th grade there were over 20 students in her classroom. When her daughter was moved to the self-contained classroom, there were 15 students in 8th grade and received some reading instructions with her group.

Even after her daughter completed the 8th grade in a 15:1 setting and received reading as described above, she did not make progress (TR p. 627). In her opinion, her daughter is still the same as she was in 7th grade with respect to Reading and Writing skills and that there was no change.

----- stated that through the impartial hearing Due Process Complaint, she is seeking compensatory reading and writing instruction.

The Parent further stated that during the 8th grade school year, she and her husband signed their daughter up for the ----- ----- ----- Program and the program recommended placement in their 9th-12th grade program, the witness stated she paid $350 for the program and her daughter did not receive any benefit. In 6th grade, she stated that her daughter had the same difficulties in Reading, Writing and Math; they hired a tutor, however, she still experienced reading difficulties. She did not receive any reading services at that time.

----- stated that her daughter has been receiving services since she was 3 or 4 years old and as far as she knew that her daughter was receiving same throughout the 7th and 8th grade.

The witness stated that she felt that the District recommended a smaller class setting as suggested by the parents as XXX had a self-esteem problem in 7th grade. She was placed in a smaller, self-contained classroom with 15 students. She described that her daughter was having difficulty at home and that it affected her eating and sleeping (TR p. 641).

On cross-examination of the witness, she stated that -----worked with her daughter in the ----- -----Program in 7th and 8th grade. She described the ----- ----- Program as nothing more than playing games, although they do reading and some reports; does not receive real instruction or benefit (TR p. 643).The witness testified that her daughter did well in all of her classes but when it came to final exams, she failed and received 40’s. The witness conceded that XXXX received some assistance, as the ----- ----- Program was implemented. Assistance was also offered before and after the school day (TR p. 648). Mrs. P. stated that her daughter attended the ----- ----- Program during the summer after 8th grade and it was not mandatory but recommended by the School District.

The parent was directed to Exhibit B which was the Prior Written Notice and stated that she “probably could have received the document” (TR P. 651). The witness conceded that the District agreed with the parent to place XXX in a smaller class setting. Upon redirect examination, the witness reiterated that the C.S.E. did not offer individualized reading services and/or writing services. XXX did not receive an assistive technology evaluation in the 7th grade and was not provided with any software to assist in Reading. In 8th grade,XXX. received some assistive technology; her daughter was evaluated, provided with assistive technology. She was told that BOCES personnel would teach her family how to use the technology but never did.

. ----- ----- was directed to Parent’s Exhibits A & B which were progress and career reports from 9/1/13 through 6/26/15. She testified that she was the author of the documents and the documents which were were an ongoing record of XXX.’s Reading and Lexile progress (TR p. 678).

During the last school year, Ms. ----- stated that she tested the student on four separate occasions during the last school year; September 9, 2014, December 8, 2014, March 20, 2015 and June 4, 2015. On September 11, 2013 XXXX was tested and her Lexile Scale or scores equated to d grade. She did not administer the testing in 2013 and believed it was administered in 6th grade by either Ms. ----- or Ms. -----.

In September 2014, XXXX scores equated to a grade- beginning of grade Reading level, as the bands overlapped. At the second testing XXXX scored an and her last test score was She testified that this was not a major regression but confirmed that the score was lower and not illustrative of progress (TR p. 683).

Upon further questioning of the witness, Ms.----- stated that a major reggression would be at least a 100 Lexile point reduction. There were several factors that could contribute to a 20 point differential including the student’s behavior, concentration, and other outside factors.

The witness stated that when she administered the test during the last school year, XXXX was cooperative and engaged. However, it appeared that she wasn’t always motivated and would sometimes complain about taking the test which lasts anywhere from 30-45 minutes (TR p. 686). In December, 2014, the test was aligned to the New Common Core and College Career Readiness Standards and her grades went up and she made progress (TR p. 687).

Ms. ----- stated that she worked with XXX in the ----- ----- Program and that it was an enrichment program to keep children from regression. After the summer instruction after 8th grade. Ms. ----- testified that she overheard the child saying that she did not wish to attend ----- ----- for the past summer; she made a copy of the letter which she handed to the child and mailed it to the parents.

During the summer prior to 8th grade, there were 12 students in the----- Program and 3 teachers all ----- ----- Certified. The instruction was for 2 hours per day, 4 days per week (TR p. 692).

Ms. ----- stated that XXXX had reading deficits which included processing information. Additionally, she struggles with comprehension and has issues with decoding and spelling which inhibits her reading progression. She has difficulty in processing her thoughts from “her head to paper”. She categorized the reading deficits as “moderate” (TR p. 693). During 8th grade, XXXX worked with a grade-level novel, “The -----” and was able to complete the activities, read along and comprehend what was going on. She provided XXXX with graphic organizers and she was able to complete assignments (TR p. 694).

Upon further questioning of the witness, she stated thatXXXX does reading every day in a ----- ----- ----- book and understands what she reads, answers questions and passes her quizzes. Concededly, the Level 1 books were a 3rd-4th grade level; however, the “-----” were above her Lexile but part of the curriculum and she encouraged the students to participate (TR p. 696). Ms. ----- stated that The ----- would be at a Lexile equivalent of 1000 which is 200 points above where she is reading and one grade above her reading level (TR p. 696). The witness stated that she worked with the student, 5 days a week in two period blocks which equates to 10 periods a week in specialized reading instruction (TR p. 699). Ms. ----- stated that she participated in the 2014 I.E.P. meeting to review an evaluation for technology.

The witness was directed to Parent’s Exhibit B and stated the document was exactly the same as Parent’s A except for the timelines. The witness reiterated that the student’s level of deficit required Summer Reading Services. She reviewed the prior year I.E.P. and in her opinion, XXXX did not require extended school year services.

The witness stated that the ----- ----- Program offered over the summer is recommended to all students who are in the Program; however, it is voluntary as the parents are required to drive and pick up the children (TR p. 705). However, this did not rise to the level of the child being required to have extended services in Reading. She reiterated that the recommendations for the summer program were building level services, not I.E.P. driven. She was uncertain if the District offered I.E. P. driven services for children with deficits over the summer.

Upon further examination, the witness stated that in her opinion XXXX would not regress much over the Summer; however, most Special Ed students do slightly regress. She was unable to opine whether or not XXXX would regress if she did not take the ----- ---- Program voluntarily over the summer (TR p. 712).

Ms. ----- stated that she worked with XXXX on her writing which was on an 8th gade level, that it was “not bad”, “a little below”, and that she can write a five paragraph essay with the help of a graphic organizer” (TR p. 714). She clarified by stating that XXX is not writing on an 8th grade level but rather on a level that the program is taught on and that it is “the skeleton of 4th grade” but what is required in an 8th grade classroom (TR p. 716).

The witness stated that she is certified to teach Pre-K through 6th grade and has a Master’s Degree in Literacy; she has not worked with a 3rd, 4th, 5th, or 6th grade classroom, but worked in a 7th grade inclusion class. She stated that XXXX is not writing like a typical 8th grader and is below level, and in her opinion XXXX’s writing skills were approximately 2 years below standards (TR P. 718). Upon cross-examination, Ms. ---- stated that to the best of her knowledge, State Regulations require Special Ed students receive 12 month service only if there is a concern of regression. Ms. ----- testified that the student’s I.Q. is which is below average, and that for the two summers and school years she worked XXXX and her effort were not always consistent (TR p. 721). Although XXXX was cooperative, there were times when XXXX was requested to do independent work and did not demonstate effort (TR p. 722).

The witness stated that XXXX has a laptop computer which she did not bring to class on a consistent basis, and was required to do so. She recalled that during a conversation with the parents in December of 2014; she explained to the parents that XXXX was required to have her computer, however, she suggested that XXXX may have kept the computer in her locker since she did not see it (TR p. 725).

The summer programs began at 8:30 a.m. There was reading comprehension activities and print-outs from a textbook for the first 30-45 minutes, then 15 minutes of grammar activity, and thereafter students could do independent or computer work. On various days, for the last 10-15 minutes, the children would play games which would incorporate team building, spelling, decoding and working together. Additionally, students were given graphic organizers, and every week there was a different theme to work on.

The witness was directed to Exhibit A which reflected Lexile scores from 9/11/13 through 6/6/14 and the grades varied from ; she stated that was significant improvement (TR p. 729).

Ms. ----- stated that during the school year, the student attained many friendships within the Read 180 class and reported that on the weekends she had get-togethers and parties. This information was provided to the parents in March or April of 2015 wherein they were given information regarding their daughter’s social activities in school.

Upon re-direct examination, the witness reiterated that the student was receiving building level services and that it was not I.E.P. driven. More particularly, she was receiving -----, 1:1 instruction after school 4 days a week. She believed it was helpful and recommended it.

PARENT’S REBUTTAL CASE

----- ----- was re-examined and stated that she taught the child English Language Arts in 7th grade and provided Reading instruction for the ----- ----- ----- Program for 2 years. She was assigned to the student for 101 instruction in the ----- ----- ----- ----- Program in 2014-15; it was 1:1 instruction after school and provided by the District through BOCES.

The witness provided services to XXXX in 7th grade, during the Summer between 7th & 8th Grade and worked with her in the ----- ----- ----- program. She confirmed that each student in the 15:1 classroom is given the opportunity to attend the ----- ----- ----- Program and it is within the parent’s discretion (TR p. 746). She worked for a short time with XXXX in the summer program in the 6th grade. In the 7th grade ----- ----- Program she worked with XXXX for 2 hours a day, 4 days a week, for a 6 week duration. The witness stated that she saw XXX. at least 74 times during the summer and that she had writing portions of the ----- Program to establish the work that was done.

Ms. ----- described the ----- Program as a phonetic approach with 12 books in a series. Book 1 breaks down sounds in the alphabet, syllables and blends and addresses exceptions within the English language. Furthermore, the ----- ----- Program addresses vocabulary comprehension, fluency and analysis. Upon cross-examination of this witness, she clarified and stated that she saw the child 74 times during the 2014-2015 school year and the Summer (TR p. 751). She reiterated that the ----- Program is a strategy for Reading under the No Child Left Behind Act and not I.E.P. driven.

The ----- -----Program after school was allowed up to 4 times per week as per Mr. -----, the School Administrator/Assistant Principal. If she was not available, there were other ------Certified Teachers to fill in. The witness stated XXXX benefitted from the ---- - ----Program and the ----- Program, and completed books 1-6. She reiterated that it is a systematic approach for phonemic awareness not for reading levels.

XXXX graduated out of ----- -----and started ----- -----. She stated that ----- ----- was administered during the classroom time and not after school in the ---- -----Program. ----- ----- was a blended model presented to all the students in the class depending upon their needs. She also explained that the ----- ----- ----- and ----- ----- are blended models and not stand-alone models.

The witness stated that she could not guess if XXX would have regressed without the ----- Program (TR p. 765). Ms. ---- stated that XXX was the only student in the ----- ----Program with her in that it was a 1:1 setting.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This hearing was requested pursuant to the Individuals with Disabilities Education Act (IDEA) (see 20 USC § 1400 et seq.). “Congress enacted the IDEA ‘to ensure that all children with disabilities have available to them a free appropriate public education…designed to meet their unique needs…[and] to ensure that the rights of children with disabilities and parents of such children are protected” (M.H. v. N. Y. C. Dept. of Educ., supra, at 223 (citing 20 USC § 1400(d)(1)(A)-(B))). Further, “a school district’s program must provide ‘special education and related services[,]’ tailored to meet the unique needs of a particular child, and be reasonably calculated to enable the child to receive educational benefits.” ( M.H. v. N.Y.C. Dept. of Educ., supra, at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105,107 (2d Cir. 2007) (internal citations omitted)).

School districts are required to formulate an IEP for each student with a disability in order to deliver appropriate services to that child. It is “[t]he centerpiece of the IDEA’s educational delivery system” (M.H., supra, at 224 (quoting D.D. ex rel. V.D., 465 F3d at 507)). Moreover, “for a child’s IEP to be adequate, it must be “[‘]likely to produce progress…and afford the student with an opportunity greater than mere trivial advancement’” (M.H., supra, at 224 (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F3d 247, 254 (2d Cir. 2009).

Federal regulations require that once an IEP is adopted for a disabled child, “[e]ach public agency shall ensure that (1)[a]n IEP ... [i]s implemented as soon as possible following the [IEP] meeting (D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 508 (2d Cir. 2006) opinion amended on denial of 480 F.3d 138 (2d Cir. 2007)). New York State regulations mandate that “there may be no delay in implementing a student's IEP” (8 NYCRR 200.4(e) (1)(i)), that “the school district shall ensure that each student with a disability has an IEP in effect at the beginning of each school year” (8 NYCRR 200.4(e) (1)(ii)), that the “the school district shall ensure that the recommendations on a student’s IEP… are implemented” (8 NYCRR 200.4(e) (3), and that “the school district must provide special education and related services to a student with a disability in accordance with the student's IEP” (8 NYCRR 200.4(e) (7))

As per Application of a Child with a Disability, Appeal No. 95-65, p. 6 (citations omitted). See also, Application of the Bd. of Educ. of the City Sch. Dist. of the City of Binghamton, Appeal No. 96-32. The board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE. To meet its burden, the board of education must show that the recommended program is reasonably calculated to allow the child to receive educational benefits, and that the recommended program is the least restrictive environment for the child. An appropriate program begins with an IEP which accurately reflects the results of the evaluation to identify the child’s needs, provides for the use of appropriate special education services to address the child’s special education needs, and establishes annual goals and short-term instructional objectives which are related to the child’s educational deficiencies.

As per Mr. -----, the parents do not contend that the School District failed to follow any federal or state procedural requirements. They allege numerous complaints that the School District failed to provide XXX with FAPE for the 2011-12. 2012-13 and 2013-14 school years. The record reveals that the School District met its burden of demonstrating XXX s relevant IEPs were reasonably calculated to allow her to receive educational benefits in the least restrictive environment.

The IEPs prepared for XXXX provided for appropriate educational services, testing and program modifications, and established appropriate annual goals. As per the testimony of School District witnesses and the evidence, XXXX made reasonable academic progress for the school years in dispute, “albeit slowly”, and was promoted each year.

As per the District’s position, the record reveals that prior to the filing of the due process complaint in February, 2014, the parents never challenged their child’s IEP or her placement. The record demonstrates that all necessary educational procedures were followed and that the 2011-12, 2012-13 and 2013-14 IEPs developed by the School District were reasonably calculated to enable XXXX to receive meaningful educational benefit.

A school district must provide an appropriate placement and program but is not required to provide the optimum placement for the child or to provide a program that matches or surpasses a particular program offered by a private, special school. See, e.g., Matter of Mr. and Mrs. Arthur S., 17 Educ. Dep’t. Rep. 227, 229 (1977) and Matter of the Application of a Handicapped Child, 21 Educ. Dep’t. Rep. 3, 7 (1981).

A school district is not required to provide a handicapped student with the maximum or optimum education possible. See also, Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377 (2d Cir. 2003). Instead, as noted by the Supreme Court, a school district is only obligated to provide a “basic floor of opportunity.” As long as an IEP is reasonably calculated to “permit the child” to pass his or her subjects, and to “advance from grade to grade,” then a school district has provided FAPE and is in compliance with the statutory scheme enacted by Congress. Notably, the law does not require a child to pass all his/her courses in order to validate the child’s IEP. All that is required is that the IEP be “reasonably calculated” to permit a child to benefit and to provide the child with the opportunity to do so. In other words, an IEP need not guarantee success to be valid and deemed to provide FAPE.

In Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998), the Court reversed and remanded a decision of the District Court which had entered judgment in favor of the parents of a learning-disabled child who brought an action under the IDEA challenging the adequacy of an IEP and placement proposed by the school district. In reversing the District Court, the Second Circuit recognized as follows: “While a parents’ wishes are understandable, IDEA does not require states to develop IEPs that “maximize the potential of handicapped children.” What the statute guarantees is an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” (School Districts “need not provide the optimal level of services, or even a level that would confer additional benefits, since the IEP required by the IDEA represents only a “basic floor of opportunity.” (“Proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act”). A single child is not . . . entitled to placement in a residential school merely because the latter would more nearly enable a child to reach his or her full potential.” Indeed, it would violate IDEA’s preference with the least restrictive educational setting to move a child from a day program where she is making progress to a residential facility simply because the latter is thought to offer superior opportunities.

The parent’s request that I order reading instruction for XXXXthrough the ---- Center, although this type of facility may indeed be beneficial for XXXX it surpasses the legal requirements for FAPE in a public school setting. The evidence clearly established that XXXX received individualized reading instruction from a certified reading teacher while attending the ICARE program.

I find that XXX made progress, clearly somewhat academically inconsistent, but seemingly consistent with her ability. I agree that that Rowley, supra, requires IEPs to be created so that they enable a handicapped student “to achieve passing marks and advance from grade to grade.” The evidence domonstarted that XXXX during the 201112, 2012-13 and 2013-14 school years met this caveat.

XXXX s fifth, sixth and seventh grade teachers all testified to and described XXX’s progress during the school years in dispute. The progress was inconsistent but this is not unusual for a student with a Parent Exh. “A” demonstrates that for the school year September 2013 to June 2014, the relevant time period in question, XXXX made significant progress in reading comprehension; this in and of itself does not disprove the parents’ allegations, however it established XXXX was “learning”.

Additionally, Ms. ----- testimony established that the CSE made changes to XXX’s placement which proved beneficial for XXXX. These changes were made with full parental input and approval. There was improvement in reading, in accordance with XX.’s ability level and disability.

----- -----, a sixth grade mathematics teacher, testified that XXX. improved markedly when she was switched from an inclusion setting to a self-contained class. Not only did her grades improve dramatically but she improved emotionally and participated more during class (Tr., p. 183-184).

Ms. -----, life science teacher confirmed that XXXX made progress, however, it was inconsistent progress. ----- -----, a seventh grade Special Education teacher testified, in relevant part: that XXXX had a steady rate of growth in reading under the system of Read 180, System 44 program.

All of teachers who worked with XXXX in the fifth, sixth and or seventh grades testified she had learned and made progress during those school years consistent with her ability level. ----- -----, a School Psychologist, tested XXXX during the 2012-13 school year, and XXXX had a full scale I.Q. of which is points above the bottom number of the low average range (Tr. p. 362).

----- ----- and ----- -----, both rebuttal witnesses stated that ----- -----program was not a waste of time and was not primarily for playing games. Regarding an extended school year, Ms. ----- testified, that state regulations require special ed students to get summer or 12 month services only if the District fears significant regression.

The issue of extended school year services provided during the summer months is dealt with by regulation. Specifically, 8 NYCRR 200.6(k) states that “students shall be considered” for such services “to prevent substantial regression.” As per the District’s postion, the parents were members of the CSE and attended every meeting. The record demonstrates that the issue of extended school year services never arose during the CSE meetings, since the CSE apparently felt it was not necessary for XXXX. to attend school during the summer months. Ms. ----- testified that it is common for many students to experience a slight regression over the summer but that it would require a 100 Lexile point difference to be deemed a substantial regression, something not evidenced by XXXX.’s scores.

I find that the School District has met its burden by demonstrating that the 201112, 2012-13, and 2013-14 IEPs prepared for XXXX by the CSE, with the full participation and consent of her parents, were designed to provide a FAPE and “reasonably calculated to enable [XXX] to achieve passing marks and advance from grade to grade.” The testimony of the teachers and documentary evidence, established that the CSE created IEPs which “provided for personalized instruction with sufficient support services to permit [XXX] to benefit educationally.”

Additionally, as per the District’s position the Parent’s agreed with the IEP created by the CSE following a meeting on February 10, 2014, two weeks prior to the filing of the due process complaint.

FAPE is meant to provide a student with an educational floor not an educational ceiling. Although her progress was intermittent and somewhat inconsistent, J.P. did learn and exhibited meaningful progress during the fifth, sixth and seventh grades consistent with her ability level and advanced “from grade to grade” during this time period. In sum, consistent with the holding of Rowley, the School District met its burden of demonstrating that the challenged IEPs were appropriate and provided XXXX with a FAPE. Therefore I find that the District has met its burden on all matters and the Parent’s request is denied.

Dated: January 14, 2016

______________________________

Impartial Hearing Officer

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be 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. The petition for review shall be served upon the school district 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.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.