The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff P.O. ("plaintiff") brings this action on behalf of her son D.G., a child with a disability, against defendant Cooperstown Central School District ("defendant" or "District") under the Individuals with Disabilities Education Act ("IDEA"). 20 U.S.C. §§ 1400-87. Specifically, plaintiff appeals a decision of the New York Education Department's State Review Officer ("SRO") who found that the individualized education plan ("IEP") recommended by the District for the 2007-08 and 2008-09 school years offered D.G. a free appropriate public education ("FAPE") under the IDEA.*fn1
The District moves for summary judgment under Federal Rule of Civil Procedure 56. Plaintiff opposes. Plaintiff cross-moves for summary judgment under Rule 56. The District opposes. Oral argument was heard on October 8, 2010, in Utica, New York. Decision was reserved.
A. D.G.'s Educational History Prior to the IHO and SRO Decisions
D.G., born in 1994, was first classified in May 2004 by the District's Committee on Special Education ("CSE") as learning disabled with deficits in the areas of reading and written expression.*fn3
1. The 2004-05 School Year
On May 7, 2004, the CSE developed an IEP for D.G. to receive a special education program and services from the District. The CSE recommended the IEP be implemented in the beginning of the 2004-05 school year. The 2004-05 school year IEP provided for daily resource room instruction in a "mixed setting" and a number of program modifications including testing accommodations.*fn4
Plaintiff alleges that by the beginning of the 2004-05 school year she had lost faith in the District's ability to teach D.G. so she enrolled D.G. at the Brookwood School*fn5 where he attended during the 2004-05 school year.
During D.G.'s fourth grade year at Brookwood, the 2004-05 school year, D.G. was placed in a class with a teacher experienced in teaching students with dyslexia. During the year he worked on his reading skills up to three and one-half hours per day in a one-on-one setting. D.G. expressed an interest in returning to the District's elementary school for his fifth grade year. In response plaintiff contacted the elementary school's principal who recommended to plaintiff that D.G. was receiving more services at Brookwood than he would at the District and thus recommended he remain at Brookwood.
2. The 2005-06 School Year
The CSE met on August 31, 2005, to develop an IEP for the 2005-06 school year. The IEP provided for D.G. to receive daily resource room instruction in a "mixed setting" thirty-six minutes a day and other modifications similar to the 2004-05 IEP.
D.G. began the 2005-06 school year, his fifth grade year, at the District. He attended the District's school for the first two days of the year but according to plaintiff he felt overwhelmed and unable to keep up academically. D.G. then returned to Brookwood for the remainder of the 2005-06 school year.
In light of D.G.'s continued difficulties with reading, on December 22, 2005, plaintiff obtained an private evaluation by a licensed psychologist at the Upstate Cerebral Palsy (UCP) Center. The evaluation established that D.G. was dyslexic and recommended a "prescriptive reading program with an experienced reading consultant." Sterne Aff. ¶ 48, Dkt. No. 16-1.
It is undisputed that D.G. made progress in many areas while attending the Brookwood School including improving his reading decoding skills. While D.G. received intensive reading instruction at Brookwood, including a private one-on-one reading tutor during 2005-06, Brookwood did not provide him with any instruction in math or writing during the 2005-06 school year. As a result, his writing did not progress but his reading skills improved to the third grade level.
3. The 2006-07 School Year
D.G. continued at Brookwood for his sixth grade year. In October and November 2006 D.G. traveled with plaintiff to Rochester, New York to receive Davis Dyslexia Correction training.
An IEP for the 2006-07 school year was apparently not drafted until plaintiff expressed an interest in D.G. returning to the District's school for the second half of the 2006-07 year. In October 2006 plaintiff began meeting with the CSE Chairperson. On October 24 plaintiff forwarded the UCP evaluation to the District's CSE Chairperson. During the course of meetings with the District, plaintiff communicated her concerns regarding the District's programs to aid students with dyslexia in light of the UCP recommendations. Plaintiff advocated for the use of a multisensory, systematic and cumulative approach that was Orton-Gillingham based. Specifically, plaintiff recommended the Wilson Reading Program. The District represented to plaintiff that two teachers would be trained in the Wilson program. Plaintiff claims that based on this promise she agreed to return D.G. to the District.
In November 2006 D.G. was reevaluated by the District's school psychologist Susan E. Rys, M.S., C.A.S. Ms. Rys reviewed D.G.'s school records and social history as provided by plaintiff and administered a variety of tests.*fn6 She found D.G. to have average cognitive and comprehension skills and cognitive strengths in skills requiring visual processing. D.G.'s long-term retrieval skills fell within the low average to average range and his basic reading skills were below average. One assessment, the QRI-4, indicated that D.G. read third grade material on an instructional level, which according to Ms. Rys, meant that D.G. could be instructed profitably using third grade reading material.
Upon learning from the plaintiff that D.G. planned to return to the District in January 2007 the District prepared an IEP for the remainder of the 2006-07 school year. The IEP, prepared on December 21, 2006, provided for D.G. to receive daily special education instruction in reading in a class not to exceed fifteen students, five days per week for forty minute sessions, and resource room services in a "mixed setting" three days per week for forty minute sessions. The IEP contained similar program and testing modifications from the previous year's IEP and included training to school personnel regarding learning disabilities. A transition plan was also developed which provided for D.G. to remain at Brookwood in the morning and receive his special education services at the District in the afternoon. The transition plan was designed to last six to eight weeks at which time the CSE would consider increasing D.G.'s time at the District.
On January 16, 2007, D.G. enrolled as a sixth grade student at the District. The transition plan was never implemented and instead, at plaintiff's request, D.G. attended the District full-time. While at the District D.G. received special reading instruction. The IEP provided for reading instruction in a fifteen-to-one reading class. The record however established that while teaching the reading class, D.G.'s teacher was simultaneously instructing three other students in a five-to-one resource room.
D.G.'s teachers reported that he was making progress in the reading class. In January 2007 D.G. took the sixth grade New York State English Language Arts Assessment. His score, despite being on the low end, indicated that his English Language Arts skills met New York State learning standards. D.G. attended the District for approximately five weeks but ceased attendance in February 2007.*fn7 According to plaintiff D.G. felt he could not keep up with the pace and returned to Brookwood in February 2007.*fn8
By letter dated February 27, 2007, the District scheduled a CSE meeting to review D.G.'s progress. The meeting was not held and was rescheduled at plaintiff's request. On or about March 3 plaintiff applied for D.G. to attend The Gow School.*fn9 Plaintiff then requested by e-mail on March 25 that the rescheduled CSE meeting be postponed. It is undisputed that as of March 25 plaintiff had not advised the District of her decision to apply to The Gow School.
On April 14 plaintiff requested an independent educational evaluation (IEE) of D.G. at the District's expense. Plaintiff stated that D.G.'s school reports showed he had made little or no progress in school over the previous seven years and that testing had shown his IQ was within the normal range.
Plaintiff continued to communicate with The Gow School during the remainder of April 2007 to make arrangements for D.G. to attend Gow during the 2007-08 school year. D.G. was tested for admission to Gow on April 16 and less than a week later plaintiff accepted The Gow School's offer. The parties dispute when plaintiff signed the Enrollment Reservation Contract with The Gow School but both agree it was before the CSE met on August 21 to develop the 2007-08 IEP.
The IEE, requested by plaintiff, was conducted by Roseanne J. Westgate-Pesola, Ph.D., over eight days in May and June 2007 at the District's expense. Dr. Westgate-Pesola summarized that D.G.'s oral expression skills were average, his academic skills were low average, and his fluency with academic tasks were low average. She concluded that his academic knowledge and ability to apply academic skills were both within the average range and his performance in reading comprehension was high average. D.G. was average in basic reading skills and math reasoning but low average in broad reading and written expression. Additionally, Dr. Westgate-Pesola found that D.G. was low average in mathematic calculation and basic writing skills and his knowledge of phoneme-grapheme relationships was low average.
4. The 2007-08 School Year
Dr. Westgate-Pesola attended the August 21 CSE meeting to assist in preparing D.G.'s 2007-08 IEP. The CSE concluded that D.G. was capable of fully participating in the seventh grade curriculum but needed intensive, direct instruction in basic reading skills using a systematic, multisensory approach. He also needed academic support for written expression, math, and other skills. The 2007-08 IEP contained annual goals to address reading and spelling of high frequency sight words, oral reading fluency, use of spell check, mastery of multiplication facts, organizing and editing written work, spelling non-phonetic words, and solving math word problems. Although not a special education service, the District offered D.G. Academic Intervention Services to provide instruction in the math skills that he was not taught while he attended the Brookwood School.
The IEP provided daily instruction in a reading class not to exceed fifteen students five days per week for forty minute sessions and resource room services in a "mixed setting" five days per week for forty minute sessions. Additional accommodations included preferential seating, a peer note taker, typed assignments, decreased length of academic tasks by thirty percent, and other modifications. The CSE planned that, other than the special education reading class and resource room support, D.G. would attend general education classes at his grade level during the 2007-08 school year.*fn10
Despite these recommendations, plaintiff's then attorney informed the District at the IEP meeting that the District could not meet D.G.'s needs with the proposed level of service. Plaintiff indicated to the CSE that D.G. needed a ...