NY IHO #2011-ih-1: Impartial... | Special Education Law

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UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

X In the Matter of the Impartial Hearing brought by XXXX and XXXX, on behalf of XXXX, Petitioners, -against-

HEWLETT-WOODMERE UNION FREE SCHOOL

DISTRICT,

Respondent. X

INTRODUCTION AND POSITION OF THE PARTIES

This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioners XXXX and XXXX (hereinafter referred to as the “Parents”), requested an Impartial Hearing on behalf of their child, XXXX (hereinafter referred to as the “Student”), contesting on procedural and substantive grounds, the appropriateness of an IEP and placement recommendation made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for the 2008/09 school year. The Parents seek tuition reimbursement for the Student’s placement at the XXXX, a private school located in XXXX. They also seek a declaratory finding that the District violated the Student’s right to a free appropriate public education (Ex. IHO-3). The District asserts that the program recommended by its CSE was reasonably calculated to provide the Student with an appropriate educational program. It also asserts that the Parents’ unilateral placement is not the least restrictive environment for the Student and that the Parents failed to cooperate with the CSE, and that their requests for tuition reimbursement and declaratory relief should be denied (Ex. IHO-7).

PROCEDURAL HISTORY

On February 26, 2009, the Parents requested an Impartial Hearing seeking tuition reimbursement for their unilateral placement of the Student in the XXXX, a private school located in XXXX. They alleged that the IEP that was developed by the District for the Student for the 2008/09 school year was procedurally invalid and substantively inappropriate. They also alleged that the CSE failed to conduct sufficient evaluations of the Student, and that the District denied the Student a free appropriate public education (Ex. IHO-3).

On March 3, 2009, the IHO was advised that she was selected to act as Impartial Hearing Officer. In a letter dated March 3, 2009, the IHO received written confirmation of her appointment (Exs. IHO-1, IHO-2).

On April 6, 2009, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Several tentative hearing dates were scheduled (Ex. IHO-9).

There were a total of 25 days of hearing in this matter. The first day of impartial hearing was held on May 19, 2009. Additional hearings were held on May 20, May 29, June 19, July 13, July 20, September 10, September 15, September 24, September 25, November 20, December 7, December 8, and December 18, 2009, and continued on January 7, January 13, February 23, March 5, March 16, April 8, April 16, April 22, April 29, May 4, and May 11, 2010 (R. 1, 195, 363, 520, 702, 886, 1069, 1372, 1346, 1703, 1850, 2017, 2181, 2336, 2503, 2671, 2887, 3072, 3213, 3456, 3711, 3836, 4004, 4140, 4228).

The District presented 4 witnesses on its direct case. The Parents presented 8 witnesses on their direct case. The District presented 2 witnesses on its rebuttal case. The transcript is 4,362 pages in length. The District submitted a total of 44 exhibits. The Parent submitted a total of 51 exhibits. The parties submitted ^[1] joint exhibit. The Impartial Hearing Officer submitted a total of 34 exhibits. The Impartial Hearing Officer granted a total of 23 requests for extension of the 45 day rule (Exs.IHO-12, IHO-13, IHO-14, IHO-15, IHO-16, IHO-17, IHO-18, IHO-19, IHO-20, IHO-21, IHO-22, IHO-23, IHO-24, IHO-25, IHO-26, IHO-27, IHO-28, IHO-29, IHO-30, IHO-31, IHO-32, IHO-33, IHO-34). The record close date in this case was extended through and including March 25, 2011, and the IHO’s decision was due on April 8, 2011 (Ex. IHO-34). Both parties submitted post-hearing memoranda of law.

ISSUES

In the Parents’ Due Process Complaint Notice, it is stated that the CSE’s recommendation for placement in a XXXX setting within a XXXX environment, with a XXXX together with XXXX and XXXX was inappropriate, in that a similar placement was previously attempted for the Student in the District which was insufficient and inappropriate to address his academic and social needs. It is further asserted that a XXXX with required participation in standardized state assessments was inappropriate given the complexities of the Student’s disabilities and XXXX. Moreover, it is asserted that a CSE review team member stated at the meeting that she “seriously doubted” the Student’s ability to XXXXle the recommended program given the level of support provided for in the IEP. Finally, that that an XXXX evaluation that was conducted in June 2007 recommended reevaluation one year later and the District did not reevaluate the Student to determine his XXXX needs (Ex. IHO-3).

In the District’s Answer to the Demand for Due Process, it is alleged that the Parents never gave the Student the opportunity to attend school in the District’s XXXX and XXXX buildings. Further, that the CSE relied on the Student’s current progress, levels of functioning, and needs in the academic, physical, social, and management areas and that the IEP appropriately identified the Student’s needs; made recommendations to address the needs; and developed appropriate measurable goals. Moreover, that the Parents’ placement was not the least restrictive environment for the Student, and that the Parents failed to cooperate with the CSE and “manipulated the process to attempt to cause the District to be out of compliance with the IEP” (Ex. IHO-7).

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX years old. He is classified as XXXX. He has been diagnosed with an XXXX and XXXX XXXX difficulties. His XXXX is XXXX, and causes XXXXs in both XXXX. He has XXXX issues, and his XXXX is often XXXX. He also has difficulty XXXX that is taught. The Student’s XXXX in school is XXXX, and he can be XXXX when tasks are difficult. The Student was first referred to the CSE in XXXX due to XXXX. Beginning in the XXXX, he XXXX, together with XXXX XXXX 2 times per week, and he received XXXX including XXXX, XXXX, and XXXX. In the XXXX, the Student continued to receive those services, in addition to XXXX XXXX 2 times per week. He was also given XXXX on exams, and XXXX he received for XXXX. In the XXXX, the Student’s placement was changed to a XXXX XXXX, and he continued to receive XXXX. The Student was unilaterally placed by his Parents in the XXXX after placement in the District’s XXXX school, where he continues to date (R. 233-234, 464-466, 4162-4164; Exs. D-1, D-3, D-5, D-7, D-8, P-L, P-YY).

XXXX, the Student’s mother, testified that the Student first began attending school in the District’s XXXX program at XXXX. She described the Student as XXXX. He had no XXXX. He attended XXXX program. He received XXXX services in the XXXXt grade, and he received XXXX XXXX due to XXXX issues involving very poor XXXXXXXX skills. She stated that the Student was unable to XXXX; he did not know XXXX, such as XXXX. He XXXX. He had a lot of XXXX issues. The Student was referred to the CSE for evaluation during his XXXX grade year. His intelligence was

XXXX. He had XXXX issues; he needed a lot of XXXX; and he also had XXXX deficiencies. He was classified as a student with a disability (R. 2684-2698; Ex. P-M).

For the XXXX grade, the Student was placed in XXXX. He also received XXXX and XXXX services. He was described by his teacher as XXXX, he had a lot of XXXX XXXXs, he was XXXX and he was described as XXXX.” For the XXXX grade, the Student was placed in XXXX and he received XXXX XXXX, XXXX, XXXX XXXX, and XXXX. The Student had great difficulty with XXXX. He also had a very difficult time with XXXX (R. 2698-2707).

For the XXXX grade, the Student was placed in XXXX. The Parent stated that the Student was XXXX. He participated in XXXX. The Parent testified that the Student XXXX. She did not ask for a CSE meeting at that time. She stated that she spoke with the teacher about the Student’s XXXX. She also spoke with the principal and with the CSE that was convened in the spring (R. 2707-2709, 2739-2742).

The Parent testified regarding the Student’s experiences with XXXX for XXXX issues. The Student began to take XXXX prior to the fourth grade but it was XXXX. The Student was XXXX in the XXXX grade to enable him to participate in the XXXX (R. 2743-2744, 3375-3392).

The Student underwent another XXXX evaluation as part of his triennial review in October 2003. His XXXX; the student had a lot of XXXX issues; he constantly needed XXXX. It was agreed that the Student would be re-evaluated due to XXXX and testing was conducted (R. 2744-2748; Exs. P-L, P-N).

At the end of the Student’s XXXX grade year, the CSE recommended that he receive XXXX. The Parents removed the Student from the District’s program and placed him at the XXXX beginning in XXXX grade. He continues there to date. XXXX was discontinued for the 2007/08 school year based upon the recommendation of XXXX in March 2007 (R. 2755-2758, 2759-2776, 3394-3395; Exs. P-P, P-Q).

As part of the Student’s re-evaluation in 2007, XXXX conducted an XXXX evaluation to determine whether an XXXX XXXX XXXX was contributing to the Student’s learning issues. The Parent testified that the evaluator discussed her findings with her and explained that the Student had XXXX XXXX and XXXX XXXXs, and that it was recommended that he remain in XXXX. If he was to return to XXXX, the trial of an XXXX was recommended. The evaluator explained that XXXX, and that XXXX before implementing the recommendation. An XXXX re-evaluation was recommended in a year to monitor any changes which may occur as a result of intervention and/or maturation, and to determine the continued need for XXXX. The Parent testified that the District did not conduct an XXXX re-evaluation within one year or at any other time prior to the start of the 2008/09 year. She also testified that the issue of a re-evaluation was raised by the CSE Chairperson at the May 27, 2008 meeting and that the CSE agreed that a re-evaluation would be appropriate, but that no one from the District contacted her to re-evaluate the Student prior to the start of the 2008/09 school year (R. 2782-2787, 2792-2793, 3633-3634, 3646-3657, 3699; Exs. D-7, P-A).

The Parent testified that prior to the conduct of triennial testing in 2007 no one from the District discussed with her whether or not the evaluation would include specific assessments of the Student’s XXXX skills, XXXX skills, or XXXX skills. She also testified that an updated XXXX examination was performed that again found the Student’s XXXX. She also stated that she was not provided with a copy of the report (R. 2795-2797; Ex. D-5).

The Parent stated that after having reviewed the results of XXXX evaluation conducted in March 2007, the Parents determined to have the Student evaluated privately by XXXX. The evaluation occurred in August 2008. The Parents did not provide a copy of XXXX’s evaluation to the District until February 23, 2009 (R. 2804- 2809; Ex. D-3).

The Parent testified to a conversation she had with XXXX in the fall 2008 after the Student was tested but prior to receiving a written report. He stated that the Student had significant XXXXs in XXXX, XXXX, and XXXX issues; that he preferred to see the Student placed in XXXX, such as that which he had at XXXX; that a XXXX setting would not be appropriate for the Student; that there was a large likelihood that the Student would not be successful on XXXX and he sought to avoid an experience of failure for the Student; that his XXXX was measured to be XXXX; that the Student had an XXXX XXXX; that a class size of XXXX; that he would not be able to XXXX and that the experience of failure would be a setback for him; that he had XXXX XXXXs; and that he had XXXX (R. 2813-2826).

On cross-examination, the Parent testified that she was referred to XXXX by legal counsel, and that the Student was seen two or three times as part of an evaluation. She stated that she provided information to XXXX regarding his attendance at XXXX, she stated her belief that the Student was doing nicely in the program, and she expressed displeasure with the program recommended by the District for the 2008/09 school year. XXXX discussed his findings with the Parent following testing, and she stated that his findings impacted her decision that the Student remain at the XXXX.. The Parent stated that XXXX did not ask for authorization to obtain information from the District as part of his evaluation and that she did not ask either the District or XXXX to share any information about the Student with XXXX. She also stated that she communicated information to XXXX about the Student’s XXXXs and XXXX by the Student (R. 3342-3344, 3348-3352, 3361-3362, 3400-3405, 3481-3485).

Also on cross-examination, the Parent stated that she provided XXXX with documents that he reviewed in connection with his XXXX evaluation of the Student, including a XXXX report conducted in 2007 and the IEP for the 2008/09 school year. She did not provide him with any educational records from the XXXX. She also stated that she had no knowledge regarding whether XXXX had discussions with either XXXX staff about the Student’s progress or with the District regarding their recommended programming for the Student, but that she did not ask him to confer with the District regarding the proposed program. All of the Student’s history was provided by the Parent (R. 3486-3488, 3490).

The Parent testified regarding the CSE meeting that was held on May 27, 2008. She stated that the Student did not attend the meeting. She summarized the substance of the discussions by XXXX staff regarding the Student’s progress during the 2007/08 school year, and she stated that no one at the CSE disputed that the Student made progress. She stated that the Student’s XXXX teacher, XXXX, stated that he was progressing, but that he still needed a lot of XXXX and XXXX. The Student’s XXXX provider stated that he was progressing but that sometimes he was not XXXX, he needed constant XXXX in XXXX, and he had difficulties with XXXX that required XXXX and XXXX. Ms. XXXX, the Student’s XXXX provider, stated that the Student’s XXXX. The Parent stated that specific wording of XXXX goals was not discussed, but she did speak about what goals should and should not be contained in the IEP, and that she would send the goals by facsimile transmission, since she was participating in the conference by cell phone from her car. The Parent also stated that Ms. XXXX discussed transition, and that specific wording in relation to XXXX and XXXX goals was discussed. She also stated that there was a general discussion about adding XXXX. She also stated that the CSE discussed the need for XXXX. She also testified that just prior to the end of the meeting, she saw XXXX lean over to XXXX and she heard her state that she believed that the Student was “going to struggle” in the recommended placement and that “he may not even be able to XXXX” (R. 2831-2838, 2842-2843, 2879-2880, 3407-3422, 3538, 3562-3569, 3570-3576; Exs. D-1, D-15, P-O).

On cross-examination, the Parent testified that she and her husband heard XXXX state to XXXX that she seriously doubted the Student’s ability to XXXX, and that she questioned her husband as to whether he heard what she heard. She also stated that she did not contact Ms. XXXX, XXXX, or XXXX about what she heard prior to filing the request for impartial hearing. On re-direct examination, the Parent confirmed that she sent a letter to XXXX detailing the substance of what she said she heard at the CSE meeting and stated that no one from the District responded to her concerns in that regard (R. 3310-3317, 3319-3320, 3528-3532; Exs. IHO-3, P-A).

Also on cross-examination, the Parent testified that both she and her husband had the opportunity to participate as team members in the CSE meeting that was held on May 27, 2008. On re-cross examination, she testified that each of the goals contained in the draft IEP were discussed during the meeting and she was allowed to take part in the discussion and preparation of the IEP. She also stated that she participated in the discussion with Ms. XXXX regarding XXXX topics that were raised by her. She also acknowledged that although the IEP indicated that the Student was entering the XXXX grade, that there was discussion at the CSE meeting regarding the Student’s entry into the XXXX grade. She did not notify the District about the error in grade at any time after she received the IEP. She also stated that the Student did not use an XXXX during his enrollment in the XXXX, and that there was discussion at the CSE meeting regarding the appropriateness of an XXXX re-evaluation for the Student (R. 3299-3301, 3305-3308, 3330-3331, 3435-3436, 3681-3684; Exs. D-1, P-HH).

On re-direct examination, the Parent testified that at the CSE meeting, she expressed concern regarding the Student’s XXXX had he been required to XXXX XXXX. She stated that no one at the CSE meeting suggested any preventative measures to prevent damage to the Student’s XXXX (R. 3584).

The Parent reviewed an IEP Direct Confirmation Sheet from XXXXXXXX XXXX and stated that she was not provided with a copy of XXXX goals submitted by Ms. XXXX on June 6, 2008 until she received the IEP in July 2008. She also stated no one contacted her to discuss XXXX goals subsequent to the CSE meeting held on May 27, 2008, and there were no XXXX goals contained in the draft IEP that the CSE used at the meeting. She also testified that XXXX goals were not discussed with her after the May 27 CSE meeting, and she was not consulted to discuss the addition of XXXX goals, changes to the Student’s XXXX goals, or changes to the descriptions of the Student’s social, physical, academic, or management needs after the CSE meeting (R. 2854-2867, 2868-2875, 3533-3534, 3537; Exs. D-15, P-O, P-HH, P-II, P-JJ).

The Parent testified that she wanted to see the XXXX class but that she was told that it was not possible because of the privacy of the students in the class. She stated her familiarity with the XXXX and her knowledge regarding the location of the XXXX class in a wing on the first floor of the building. She stated her opinion that that the recommended XXXX was not appropriate for the Student given his significant XXXX issues, his need for XXXX and XXXX, and his need for XXXX. She also stated her opinion that such a placement was attempted when the Student was in the XXXX grade and that “it was an academic nightmare.” In addition, she stated that the CSE made no accommodations for the Student when he was to participate in XXXX. She also stated that the XXXX and the XXXX and that it would XXXX (R. 2839-2842, 3150-3159; Ex. D- 1).

The Parent also stated that the Student heard things about the XXXX program that caused him XXXX. She stated that the Student’s XXXX. Specifically, XXXX program involving XXXX, and that they didn’t think that XXXX. The Parent testified that XXXX, and they did not know the reason why the Student XXXX. Moreover, the Student’s sister told him XXXX. The Parent testified that that was the reason XXXX. On cross-examination, the Parent stated that she did not notify the District, the XXXX, or XXXX. She could not XXXX if she shared the information with XXXX. She stated that, when asked by XXXX (R. 3163-3166, 3437-3439, 3478-3480, 3516-3523).

The Parent testified regarding the Student’s enrollment in the XXXX for the 2008/09 school year and payment of the tuition. She stated that she signed the contract and made the tuition payment after she received the District’s IEP. She stated that she sent a letter to XXXX setting forth her concerns about the recommended program and that she received no response from the District (R. 3166-3175; Exs. P-RR, P-SS).

The Parent also testified regarding the Student’s progress at XXXX during the 2008/09 school year. She stated that the Student earned three honor roll achievements during his XXXX grade year, that academically he never achieved such an honor, and that it was a XXXX that he could XXXX. She also testified with respect to discussions held at a CSE meeting in June 2009 with respect to the Student’s progress. She stated that information was provided regarding the Student’s improvement in XXXX, that he also improved in XXXX, and that his XXXX skills were stronger than his XXXX skills. There was also discussion regarding the Student’s improvement in XXXX. She stated that Ms. XXXX indicated the Student made tremendous growth in XXXX and XXXX in XXXX, even though he still needed XXXX and XXXX. She also stated that Ms. XXXX noted that the XXXX for XXXX permitted her to provide a lot of XXXX and XXXX which he needed, and that even though it took him long periods of time to XXXX, he was able to do so in her XXXX. She also stated that the XXXX provider, XXXX, noted improvement in XXXX skills (R. 3225-3228, 3231-3232, 3234-3235, 3242-3244; Ex. P-BB).

On re-direct examination, the Parent testified that in November 2008, she observed the Student at a school-wide Thanksgiving luncheon at XXXX and noted that

XXXX (R. 3616-3620).

The Parent stated her belief that the Student made significant progress in XXXX and that he XXXX. She stated that she saw progress in the Student’s XXXX skills, in that he was able to successfully XXXX. He also passed the XXXX. The Parent also testified regarding the Student’s XXXX his successful academic year at XXXX. In sum, she believed that the XXXX was an appropriate placement for the Student for the 2008/09 school year, based on XXXX (R. 3256-3259, 3261, 3265-3266, 3272-3273; Exs. P-J, P-DD).

The Parent stated that when the District sought to reevaluate the Student in 2007, she consented to the evaluations and the classroom observations, and that she attended all CSE meetings involving the Student. She also stated that although she received the Student’s IEP sometime in July 2008, the Board of Education did not meet to review the IEP until September 17, 2008, after the start of the 2008/09 school year (R. 3159-3161; Ex. P-U).

XXXX is the Chairperson of the District’s Special Education Department and Testing. She holds New York State certifications as a special education teacher and as a school district administrator and building supervisor. Her job duties include supervisory responsibilities, as well as chairing CSE meetings, participation in Instructional Support Team group meetings for students who are at risk or who are in need of specific interventions or services and on the Building Leadership Team. She also works in collaboration with the Pupil Personnel Services Department and parents and supervises standardized testing and testing accommodations and modifications for students with disabilities. She also conducts educational testing. Her office is located in the District’s XXXX building (R. 57-60, 63).

XXXX testified that she attends most CSE meetings where students are transitioning from XXXX to XXXX grade to help determine appropriate placements and to determine programs and services that are age appropriate, developmentally appropriate, and educationally appropriate, given her expertise in XXXX curriculum (R. 63-64, 67).

XXXX chaired the CSE meeting held on May 27, 2008 for this Student to plan his program for the 2008/09 school year. At that time, the Student was completing the XXXX grade and the meeting was being held to plan for the Student’s entry into the XXXX grade. She reviewed the composition of the CSE on the day of the meeting, which included District staff, representatives from the XXXX, and both parents. She testified on cross-examination that the Student was not present, even though he is listed as an attendee in the IEP. She testified that the parents and XXXX staff were given opportunities to participate in the meeting by providing information to the CSE about the Student. She also testified regarding documents and other information that the CSE reviewed at the meeting, such as progress notes from teachers and XXXX staff, teacher reports, parent input, report cards, and an observation conducted by XXXX, one of the District’s XXXX (R. 67-78, 201-202; Ex. D-1).

On cross-examination, XXXX testified that the XXXX staff was not present for the entire CSE meeting, in that a meeting held prior to this Student’s meeting went longer than anticipated, and they did not participate during the discussion of program recommendations for the following year. They did, however, discuss the Student’s program at XXXX and his progress. Moreover, she stated that no one from the XXXX articulated that they had any further information to provide to the committee prior to ending their participation in the meeting (R. 839-842, 869).

XXXX described the Student as possessing a XXXX that affects both XXXX and XXXX. He has XXXX skills that fall in the low average range and has difficulty with XXXX. He has difficulty XXXX and understanding XXXX. He is able to XXXX. On cross-examination, XXXX testified that the Student’s XXXX XXXXs would impact his ability to XXXX. She also stated that the Student’s XXXX XXXX impacts his ability to XXXX in a classroom, that the XXXX would affect the Student in all classroom settings, and that the XXXX may be exacerbated XXXX. In the area of XXXX, his XXXX is stronger than his XXXX. She stated that he performs best in XXXX where there is a lot of XXXX. He also has difficulties with XXXX. On cross-examination, she confirmed that the IEP does not contain information regarding the grade levels at which the Student was functioning in XXXX, XXXX, XXXX, XXXX, and XXXX skills (R. 80-82, 209-211, 224, 253-254).

On redirect examination, XXXX testified that grade level is a norm referenced XXXX, as opposed to a standardized XXXX, and stated her opinion that it paints a limited picture of a student’s performance. She stated that students who have learning profiles similar to this Student’s profile have varied skills, and that comparisons of information relating to the range of academic achievement and standard XXXXs are more meaningful measures by which to make recommendations regarding educational programming (R. 312-313).

XXXX described the program that was recommended by the CSE for the Student for the 2008/09 school year. It included placement in a XXXX program where he would have participated in XXXX. He would have received XXXX with teachers who had expertise in delivering instruction to students with XXXX very similar to this Student’s needs, including students with weaknesses in XXXX, XXXX difficulties, and weaknesses in XXXX and XXXX. On cross-examination, the witness could not testify whether this Student’s functional levels in the areas of XXXX, XXXX, XXXX were within XXXX in the District’s recommended program. XXXX stated that the curriculum is on a XXXX level, but it is modified and delivered in a way that is manageable, while allowing the Student to be placed in a building with age appropriate peers in his home community. He was also recommended for placement in a XXXX, with a XXXX where he is grouped with other students by grade, to work on XXXX skills as well as on the delivery of mini-lessons geared towards meeting the Student’s specific goals. The students are in similar classes, and the XXXX teacher is aware of the expectations of the curriculum, upcoming exams, quizzes, and projects. Students learn how to navigate the environment of a XXXX with the support of a teacher (R. 82-84, 227-230; Ex. D-1).

He was also recommended for XXXX as well as XXXX, with XXXX. He was also provided with XXXX, including XXXX, XXXX and XXXX, use of XXXX, and XXXX. XXXX included XXXX. He was to XXXX (R. 84; Ex. D-1).

On cross-examination, XXXX testified that the only XXXX evaluation undertaken for the Student by the District was that which was performed by XXXX on June 12, 2007. She also stated that, although the CSE adopted the evaluator’s recommendation for XXXX, the IEP does not reference XXXX. On redirect examination, she stated that a recommendation for an XXXX was not made because the student was attending classes at XXXX consisting of only XXXX, and the Parents did not request it (R. 230- 232, 316; Ex. D-7).

XXXX testified that the CSE took mainstreaming opportunities into consideration when planning the Student’s program, and stated her opinion that such opportunities are important and significant in XXXX. The Student would have had mainstreaming opportunities in physical education, electives, art, music, clubs, athletics, and in community activities. On cross-examination, she testified that the IEP does not provide any services to address the Student’s XXXX issues or XXXX XXXXs. XXXX testified regarding the teachers that the Student would have had, and their qualifications, had he entered the District’s recommended program (R. 84-91, 151-152, 254-255).

XXXX stated that the District has two sections of XXXX, and the profiles of the two sections were similar during the 2008/09 school year. She testified that she is responsible for grouping students and that she looks at XXXX, achievement, performance, and XXXX functioning in making those determinations. She stated that the Student had a very similar profile to the other students in the proposed placement. The students in the class were primarily XXXX and some had some “soft” XXXX [sic] issues, similar to this Student, meaning that a student can XXXX. On cross-examination, XXXX reiterated that there were two sections of XXXX with XXXX. She stated the District’s awareness that certain groups of students with XXXX needs probably do better in XXXX, and that creating two sections of XXXX illustrated the District’s willingness to adapt the school environment and to provide students with education that is appropriate. She stated that she would not want to XXXX, as learning for the Student might become more challenging under those circumstances (R. 94-101, 268-270; Ex. D-1).

On redirect examination, Ms. XXXX stated her opinion that even if the Student had entered the class and if XXXX, she still believed it would be an appropriate placement because of the individualization that teachers carry forward on a day-to-day basis; that all of the techniques that XXXX teachers have in their repertoire would be intact; and there would have been a XXXX in which the students could learn and thrive (R. 334-335).

On cross-examination, XXXX stated that the make-up of the proposed class was primarily XXXX students with a learning profile similar to this Student. Their XXXX needs were typical of XXXX year old students who XXXX; some had low XXXX relating to the challenges of being XXXX; some had XXXX issues that created XXXX; she stated that three students in the class were diagnosed with XXXXs and one student was diagnosed with XXXX; she stated that none of the students were classified as XXXX or XXXX; that the IQ’s of the students in the class fell between XXXX; and that she shared with the Parents that she was familiar with who was going to be placed in the classroom with the Student and that she believed the Student would have been appropriately placed in the class. On redirect-examination, XXXX stated that she was familiar with the academic, social, physical, and management needs and functional levels of the other potential classmates for this Student because she participated at their CSE meetings, she reviewed their IEPs, and she obtained information about the students from the middle school staff. She stated that as a group, it was a “very kind, sweet and supportive class as a whole.” She described this Student’s XXXX as an area of strength, but that he needed to work on his XXXX to enable him to XXXX (R. 259-265, 288-291, 323-327, 340).

XXXX reviewed a class profile of the other students with whom this Student would have been placed had he entered the District’s program. She testified that the students that are listed in the profile were recommended for XXXX at the XXXX; that there are students who have particular learning styles and learning needs that are best addressed in XXXX. She stated that as of the first day of school, all of the students contained in the profile were placed together in each of the XXXX classes, which she identified as XXXX. She also stated her opinion that the Student would have been appropriately placed with the other students as identified in the profile, in that they function similarly in XXXX, XXXX, XXXX, and XXXX. In addition, she stated her opinion that he would have been successful in the placement. She stated that the program the District had at the XXXX, for students with a profile similar to this Student, was specifically designed to XXXX taught by teachers whose expertise is learning differences (R. 725, 743-744, 757, 807; Ex. D-12).

On cross-examination, XXXX testified extensively with respect to the issue of XXXX (R. 811-823, 832-833, 838-839, 852; Exs. D-1, D-12).

XXXX stated her opinion that the CSE had information that appropriately assessed the Student’s academic, social, physical, and management needs, that the Parents had an opportunity to participate in the discussion about the Student’s needs, and they expressed no disagreement with the CSE’s assessment. She also stated her opinion that the Student would have greatly benefitted from XXXX at the District’s XXXX; that he would have been able to participate in a curriculum specifically designed for learners within the New York State system who have significant learning needs; that he would have benefitted from XXXX, to have been educated by staff that is highly knowledgeable and highly skilled at meeting the needs of learners with this Student’s profile, and he would have been exposed to a rich curriculum, as well as transitional services and XXXX skills (R. 102-104).

On cross-examination, XXXX confirmed that she never instructed the Student; she never provided any services to him; she never evaluated him; she never observed him; and she had never met him. She stated that all of the information that she had about him was not based on any personal knowledge. She clarified that there were members of the CSE who had personal knowledge of the Student and they conveyed that information during the course of the meeting (R. 857, 866).

XXXX testified that the CSE’s recommendation that the Student participate in XXXX was discussed, and that the Parents did not communicate at the meeting whether or not they agreed with the recommendation. She further stated that the Parents did not provide the CSE with a copy of the Student’s third term report card for the 2008-09 school year that was issued by the XXXX although the Student’s grades were discussed at the meeting. She also stated that based on the grades earned by the Student, it appeared appropriate for him to participate in XXXX, that he appeared to be progressing, and that he appeared to be able to XXXX (R. 120-125; Ex. P-C).

On cross-examination, XXXX testified that students with a XXXX exemption must

XXXX (R. 271-272).

On redirect examination, XXXX testified that even though the IEP lacked information about XXXX (R. 335-340).

XXXX stated her belief that the subjects taught to the Student at the XXXX were similar in name only to the subjects he would have been taught in the XXXX program; that there is a specific New York State curriculum guide with standards and benchmarks that would have been followed in the District’s program; and that XXXX. On cross-examination, XXXX testified that she discussed the specific courses that the Student would be taking if he entered the District’s program for the 2008/09 school year. The witness also testified regarding XXXX. She also stated her opinion that the Student would have received educational benefit in the proposed program (R. 126-135, 285- 287).

XXXX testified that after determining the Student’s needs, the CSE developed goals, and the Parents participated in the process. She stated that the entire IEP document was discussed at the meeting on May 27, 2008. She also stated that the CSE recommended XXXX XXXX for the Student XXXX. She testified that although the Student is classified as XXXX, the root of his impairment is XXXX, and impacts his XXXX and XXXX, XXXX, and XXXX skills. She stated that the purpose of the XXXX was to XXXX (R. 143-148).

XXXX testified regarding her knowledge of the XXXX, indicating that it is not XXXX and that it does not XXXX. She also testified regarding documents provided by the Parents to her, for the first time, during the course of the impartial hearing. She also testified, however, that she was not familiar with this Student prior to May 2007 (R. 156- 157, 164, 170-173, 176; Exs. P-B, P-D, P-E, P-F, P-G, P-H, P-I, P-J, P-K).

On cross-examination, XXXX stated that at no time after the May 27, 2008 CSE meeting, did she ask the Parents to provide any progress reports from the XXXX, and that she did not request any progress reports from either the XXXX or the XXXX District [the Student’s school district of location, as opposed to his school district of residence]; she did not know whether the reports were provided to another employee at the District (R. 291-292, 296).

Also on cross-examination, XXXX stated that the CSE’s recommendation for the Student for XXXX was consistent with the requirement to recommend a placement in the least restrictive environment. She stated that the Student has XXXX issues that XXXX. She also stated that input provided by the Student’s current teachers is important to the CSE’s decision making about XXXX, since they work with the Student on a daily basis and they monitor progress over time (R. 298-302).

In addition, XXXX acknowledged receipt of a letter dated August 27, 2008 from the Parent in which she states concerns relative to the CSE’s recommended class placement and program, that she did not call the Parent to discuss any of their objections, that she did not respond to the Parent in XXXX, and that she did not convene another CSE meeting to discuss any of the stated objections. The Parent testified that each of the concerns set forth in her letter were also raised at the CSE meeting on May 27, 2008 (R. 302-303, 3161-3163, 3166; Ex. P-A).

Finally, on cross-examination XXXX confirmed that she never observed the Student at the XXXX; that she did not confer with any of the Student’s teachers at the XXXX during the 2008/09 school year; that she never evaluated the Student or worked with him; that she could not XXXX if she had ever visited the XXXX; and that she never met the Student (R. 310-311).

XXXX, has been employed as a school psychologist in the District for 14 years. She has been assigned to the District’s XXXX for 6 years. XXXX holds New York State licensure as a clinical psychologist and she is certified as a school psychologist. Her job duties include attendance at CSEs, administration of assessments, XXXX, and consulting with teachers and staff regarding student mental health and educational issues (R. 368-371).

XXXX testified that she first became familiar with the Student when he was a XXXX grader at the District’s XXXX. She attended the CSE meeting held on May 27, 2008 as a school psychologist. She stated that she conducted a site visit at the XXXX approximately 1 month prior to the CSE meeting. She observed the Student in a class with 2 other students. It was a teacher-directed, computer-based tutorial lesson involving a research project. She related the substance of a conversation she had with the teacher, in which she was told that the Student XXXX, but that he XXXX. She described her observation to the CSE. She also related a discussion she had with the Student, in which he stated that XXXX, but that XXXX. The Parent testified that XXXX. She also testified that she had not seen a copy of XXXX’s report summarizing her site visit until the time of the impartial hearing. On cross-examination, the Parent testified that although she did not see a copy of XXXX’s report of her site visit to the XXXX prior to the hearing, she gave a verbal report about the visit at the CSE meeting (R. 372-376, 3133-3135, 3136-3137, 3440; Ex. D-11).

XXXX testified regarding a XXXX report that was conducted by XXXX, under her supervision, on August 23, 2007. On cross-examination, XXXX confirmed that she was not present at any of the testing sessions that took place with the intern. XXXX in 2007 was. On cross-examination, however, XXXX stated that the fact that XXXX. The Parents did not share either the existence of XXXX’s evaluation or the results with the District until February 23, 2009. XXXX testified that the Student XXXX (R. 381, 389- 390, 392, 396-397, 399, 466, 483-496, 610-614, 618-620, 624-627; Exs. D-1, D-3, D-5,

P-L, P-M, P-N).

XXXX testified that during the 2008/09 school year, the District employed two full-time school psychologists in the XXXX. She also stated that at the CSE meeting on May 27, 2008, she took into account the issue of the least restrictive environment. She stated her opinion that the Student is in a very restrictive environment at the XXXX; that he is far from his home community; that he is in exceedingly XXXX; and that he needed his home community and peers, and access to the District’s after school programs. In short, she stated her belief that the Student is “missing out.” The Parent testified that prior to the hearing, neither XXXX nor any other District employee indicated to the Parent their belief that XXXX was too restrictive for the Student (R. 416, 419-422, 2878- 2879).

On cross-examination, XXXX testified that she did not know which clubs or sports, if any, in which the Student was a participant during the 2008/09 school year at

XXXX (R. 509).

XXXX testified regarding the development of goals and objectives for the Student at the May 27, 2008 CSE meeting. She stated that each proposed goal was discussed at the meeting and tweaked. She stated her belief that XXXX goals were developed at the meeting; that she did not remember if the CSE had information contained in the Student’s Progress Report for IEP Goals for the 2007/08 school year; that there were two XXXX therapists present at the meeting and there was discussion regarding the Student’s progress in that area; and that the CSE had in its possession a XXXX by his provider, XXXX, who reviewed the document during the course of the CSE meeting. On cross-examination, XXXX acknowledged that Ms. XXXX’s attendance by telephone in the CSE meeting was not reflected in the IEP minutes and that she did not know when the District received draft goals submitted by Ms. XXXX at some point in time on May 27, 2008. XXXX testified that she XXXX seeing Ms. XXXX’s written goals at the meeting. She also stated that there are occasions when the CSE receives written goals from service providers at some times after CSE meetings, and that if the goals received were not the XXXXe as those goals discussed at the meeting, the CSE reconvenes to review the goals received from the service provider. XXXX confirmed that at least one of the XXXX goals recommended by Ms. XXXX is not contained in the Student’s IEP for the 2008/09 school year. XXXX testified that all of the goals that appear on the Student’s IEP were decided upon by the CSE prior to the conclusion of the meeting (R. 422-424, 426, 431-432, 513-516, 564-570, 835, 869-871; Exs. D-13, D-14, D-15).

XXXX also confirmed that the IEP contained additional errors, including the grade into which the Student was transitioning, an incorrect reference to a XXXX report dated June 19, 2008 that does not exist, and the lack of a reference in the IEP to a report of a site visit that XXXX made prior to the CSE meeting and that was referenced at the CSE meeting (R. 383-384, 638-643, 647-648; Ex. D-1).

XXXX stated that the District has educated students with this Student’s profile successfully in XXXX although XXXX and they have no evidence to the contrary that he cannot be educated in that setting, since he has not been attending the District’s schools. She testified that the recommendation is educationally appropriate, given his level of XXXX as measured by both XXXX and herself. She also stated her opinion that the XXXX is “stifling” for him, that it is not the least restrictive environment, and that the Student is losing out on social and other opportunities that the public school has to offer. The Parent stated her opinion that XXXX is not too restrictive for the Student, in that it provides a XXXX environment that enables him to progress, in XXXX. XXXX stated her belief that XXXX was removed as a related service because the Parents believed that the Student would see it as a setback. XXXX confirmed that such a discussion occurred at the CSE meeting, Moreover, the XXXX goals that the Student had previously worked on related to XXXX. She testified that the XXXX setting can promote growth in that area and “real-life point-of-practice experiences” in those areas. She also stated her belief that participation in the extracurricular activities that the District has to offer would have allowed the Student to XXXX and would XXXX (R. 447-449, 872-873, 880-881, 2880-2881).

On cross-examination, XXXX confirmed that one of the students with whom this Student would have been placed, had he entered the District’s program, received XXXX and that this Student’s XXXX needs were dissimilar to those of the other student (R. 577-583). On redirect examination, she testified that this Student did not need XXXX and that is why it was not recommended by the CSE for the 2008/09 school year. On re-cross examination, XXXX stated that the lack of a XXXX recommendation emanated from his having made some progress in that area, as well as the Student’s desire not to engage in further XXXX. She also stated her belief that the Student can function in an academic environment without XXXX (R. 689-690). XXXX also testified that many students who were assigned to the XXXX class were prone to XXXX, that this Student has XXXX XXXXs, and that the XXXX program is able to provide educational benefit to students who are prone to XXXX (R. 643-645, 664).

XXXX stated her vehement disagreement with the Parents’ allegation that the Student’s participation in XXXX were inappropriate and would cause XXXX, and stated that the Student should be allowed to XXXX (R. 449-450). On cross-examination, XXXX stated that typically several students in the XXXX classes XXXX during past years, but she could not XXXX any specific students who XXXX. She also acknowledged that the Student is able to take XXXX at the XXXX (R. 574-576, 3137- 3150).

Also on cross-examination, XXXX stated that she recommends alternate assessment when a student is significantly impaired. She stated that the District likes most students to attempt to take XXXX, but she acknowledged that, for some students, it is not appropriate, given XXXX. She could not answer whether the Student’s levels of performance in XXXX at the time the CSE met in May 2008 were consistent with the foundation skills a student would need to be taking a XXXX (R. 584-585, 589). On redirect examination, XXXX stated that she did not believe that it was appropriate to recommend the Student for alternate assessment for the 2008/09 school year based on XXXX and her belief that XXXX (R. 664-665).

When asked whether she stated to XXXX that she seriously doubted the Student’s ability to XXXX the recommended program given the level of support provided for in the IEP, XXXX stated that she had some discussion after the CSE meeting with XXXX and the Parents in the context of a discussion as to whether the Student would try the recommended program and regarding reconvening the CSE if the level of recommended support was not enough. The Parent disagreed with XXXX’s characterization of the substance of the discussion on that issue at the meeting (R. 450- 454, 2850-2854).

On cross-examination, XXXX confirmed that she did not speak with the Student at the time of her site visit about his preferences for educational placement. She also stated that as part of the District’s XXXX assessment conducted in March 2007, the District did not assess the Student’s XXXX skills, even though he is prone to XXXX. She stated that at the time the Student was placed in XXXX at the District’s XXXX, he needed very frequent XXXX and XXXX (R. 464, 530-533; Exs. D-1, D-5).

XXXX is a special education teacher at the District’s XXXX. She holds New York State certifications in special education, elementary education, and XXXX. She teaches

XXXX, and XXXX at the XXXX. During the 2008/09 school year, she taught the XXXX as part of the XXXX program, a XXXX class, and XXXX (R. 891-895).

Ms. XXXX described the XXXX program as one that is designed for XXXX students who take XXXX, but with a modified curriculum and a modified grading system. The students travel in a cohort from class to class. She described the profile of the students in her XXXX. She stated that all of the students have either a XXXX or a XXXX disability, and most are classified as either XXXX or XXXX. Most received XXXX, such as XXXX or XXXX. On cross-examination, she testified that none of the students in XXXX during the 2008/09 school year received XXXX as a related service; that this Student might be a student who would benefit from a XXXX; and that had the Student entered her classroom, she would have observed him and if she felt he would benefit from a XXXX class, she would have probably called a CSE meeting. The majority of students in the class had XXXX issues (R. 895-898, 911-913).

Ms. XXXX described a typical day in XXXX. Each day the students XXXX. The XXXX teacher focuses on goals and objectives that students have as part of their IEPs (R. 898-900, 914-915).

Ms. XXXX taught XXXX but she modified the instruction to present material in a different way or at a slower pace. She gave as an example the introduction of XXXX (R. 901-902).

Ms. XXXX testified that she never met the Student and she did not attend his CSE meeting. She reviewed the Student’s standardized test results contained in the proposed IEP together with the class profile and stated her opinion that the Student seemed to fit in nicely with the other students she taught. She noted that the Student performed in the middle of the range in her class in the area of XXXX; that although he performed the lowest in the profile with respect to XXXX, students #5 and #7 “were not far behind”; and that he performed the highest of the profile in the area of XXXX. She believed that based on his XXXXs and the IEP, he seemed to fit into her class, and she thought he would have received educational benefit (R. 903-908).

Ms. XXXX stated her familiarity with the manner in which the other XXXX courses were administered. She stated that all teachers take the curriculum of the regular class and “water it down” to the levels of the students in their classes, which involved modifying the curriculum, modifying tests, and modifying the manner in which they grade and assess students. She stated that had the Student attended the XXXX programs, in addition to the four XXXX classes, he would have had access to a wide variety of electives, including keyboarding, art, music, chorus or band, physical education, and computer classes (R. 908-909).

Ms. XXXX was on maternity leave as of the beginning of the 2008/09 school year. She returned to the classroom in November 2008. She stated that as of the beginning of September 2008, there were 11 students assigned to her XXXX and that had this Student attended the program, he would have been the 12th student in the class. She also testified that two students were subsequently removed from her class and placed in the mainstream for XXXX. One of the students also received XXXX as a related service. The other student was moved into the mainstream for XXXX reasons (R. 904, 910, 917-924).

On cross-examination, Ms. XXXX testified that she taught a XXXX class, and that this Student’s XXXX in XXXX was similar to a XXXX she would have seen of students in her XXXX class. She also described the ability of the students in her class to XXXX. She stated that she modifies the XXXX assignments. First, she and the students XXXX (R. 925-926).

When asked about discrepancies in XXXX, Ms. XXXX confirmed XXXX. However, she stated XXXX (R. 931-937; Ex. D-12).

Ms. XXXX testified that she reviewed the Student’s goals contained in his IEP and that they were “quite similar” to the goals of the students she had during the 2008/09 school year. She acknowledged that she has never met the Student, she never observed him, and she never evaluated him, but that based on his XXXX and the XXXX from his IEP, he would have fit into her class, and she would have done her very best to teach him (R. 943-946).

Ms. XXXX stated that a majority of the students in her XXXX class had XXXX problems, and she addressed it by XXXX. She testified that based on her review of the Student’s IEP, it appeared that he had a severe XXXX issue. She stated her opinion that based on her review of the IEP, that the Student would be appropriately placed both academically and socially in a class with XXXX. She confirmed that she did not look at any test scores for the Student other than the District’s own testing (R. 952, 954- 955, 957-958, 961).

Ms. XXXX stated that because of her XXXX background, she teaches XXXX strategies as part of the XXXX. She also teaches XXXX which is devoted solely to XXXX and the XXXX. Generally the students are all taught as one group (R. 962-965).

XXXX, at the time of this hearing, was the District’s Executive Director of Special Education. Her job duties included oversight of the District’s special education department, including insuring timely evaluations, placement, and programs for students, supervising psychologists, social workers, and pupil personnel staff, development of the special education budget, oversight of students who attend schools outside of the District and coordinating services for students who attend non-public schools within the District. She is certified in general education N-6, special education K-12, and in administration supervision (R. 984-985).

Ms. XXXX testified that she prepared the XXXX during the 2008/09 school year. On cross-examination, she confirmed that XXXX. Some students had stronger XXXX skills but weaker XXXX skills; some had weaker XXXX skills than XXXX; but all fell into a range of areas that needed XXXX (R. 988-991, 997, 1003-1004, 1008-1009; Ex. D- 12).

Ms. XXXX testified that based on her review of IEPs of each of the students who attended Ms. XXXX , and based on her review of the Student’s IEP and her 32 years experience in special education, she believed that the Student would have been appropriately placed in the XXXX program and that he would have obtained educational benefit. She also stated that students with profiles similar to this Student in the past have had great success in XXXX. She confirmed on cross-examination that she did not observe the XXXX class during the 2008/09 school year; that she did not observe the Student during the 2007/08 and 2008/09 school years; that she never evaluated the Student and that she had no personal experience with him (R. 991-999, 1009-1010).

On cross-examination, Ms. XXXX confirmed that this Student’s XXXX indicates XXXX (R. 999-1002; Ex. D-12).

XXXX, is the Principal of the XXXX. She is dually certified by New York State in elementary education N-6 and special education K-12. She has worked as a special education teacher in classes with 12:1:1 and 15:1:1 ratios in both private schools and in a private school that is approved by the New York State Education Department to serve children with disabilities. She also taught in a 15:1 special education class within a public school. In addition, she served as a principal and assistant principal in private schools and in a New York State approved private school before her tenure at the XXXX. She has served in the capacity as the Principal of the XXXX for the past three years (R. 1018-1022, 1199-1203).

XXXX described her job duties at the XXXX, that include oversight of the daily functioning of the school; curriculum development; teacher evaluations; student testing schedules; book ordering; and any other duty deemed appropriate by the Head of School. She testified regarding the school’s history, indicating that in 1951, the New York State Board of XXXX gave it charter school status as a school which educated students up to the XXXX grade. In 1980, the school was accredited by the Board of XXXX as a XXXX (R. 1022-1023).

XXXX testified that the students who attend XXXX are classified as XXXX or XXXX learners. She described it as XXXX (R. 1023-1025).

XXXX testified that the XXXX is accredited by the New York State Board of Regents, and it is able to grant its own diplomas. On cross-examination, XXXX stated that the XXXX. It administers XXXX and it may choose to administer XXXX as well, but it does not. There are a total of XXXX students who attend the school, and the school services students in grades XXXX through XXXX. XXXX stated that XXXX administers standardized examinations to its students, including the XXXXs in XXXX, XXXX and XXXX; the Woodcock-Johnson exam upon entrance into the School; and the XXXX Achievement Tests, Level 8, on an annual basis. On cross-examination, XXXX confirmed that students must XXXX in order to graduate. She did not know the consequence, if any, for students who do not XXXX. She stated her opinion that it would be very devastating for the Student to XXXX, but that the Student would be XXXX (R. 1025-1027, 1395-1399, 1409-1411, 1414, 1416).

XXXX testified regarding her familiarity with the Student. She has served as a substitute teacher in the Student’s class and she has observed his teachers while he was in the class. She described the Student as a XXXX (R. 1028-1029).

XXXX described the various clubs that are available during their XXXX period, including traditional clubs such as yearbook, student government, literature, and poetry clubs, as well as non-traditional clubs such as a forensic science club, Pay it Forward, where students select a charity for fundraising, a Cultural Club, where students study different countries and make food from those countries, and a Lifestyles Club, where students learn how to live on their own, either in an apartment or a dormitory situation where they learn how to make healthy choices on a budget, how to budget money, how to write checks, go on job interviews, or anything that they would need to live independently (R. 1029-1031).

XXXX also described the XXXX that are available for students and parents, beginning in the XXXX grade. Students participate in a program called XXXX, which is

XXXX (R. 1031-1033, 1219-1223).

XXXX stated that she is familiar with the Student’s functioning in XXXX through her classroom observations, conversations with the Student’s teachers, and from test scores. In the area of XXXX, as of the beginning of the 2008/09 school year, he was performing at the beginning of the XXXX grade level. His XXXX skills were a bit higher. On cross-examination, she confirmed that the Student worked on some XXXX goals contained in his IEP for the 2008/09 school year, such as XXXX. She stated that the Student has great difficulties with XXXX, and XXXX. She also confirmed that the Student worked on XXXX All of the students have classification as XXXX (R. 1033- 1045, 1139, 1268, 1273-1274, 1418-1420; Ex. D-1).

XXXX described the credentials of each of the Student’s teachers. His science teacher is a registered nurse who has extensive background in science. She has been employed by XXXX for 8 years. The Student’s other teachers are content area certified to teach XXXX level students. His XXXX teacher is a XXXX specialist, who has a degree in XXXX, is XXXX, and has XXXX (R. 1045-1048).

XXXX testified regarding the classes taught to the XXXX grade students. The students traveled together as a group. This Student participated in XXXX. He participated in physical education two times per week, and he had art. He received XXXX including XXXX two times per week, XXXX services two times per week, and XXXX five times per week. He also participated in a study hall one time per week, a computer class two times per week, clubs, and the XXXX program (R. 1050-1053).

XXXX also testified regarding the teaching methodology used at the XXXX, which she called “best practices in special education.” She stated that the program is fit for the student; there is differentiation of instruction; they use XXXX. If a student has XXXX disorders, they might use XXXX if warranted or stated on his IEP. There is XXXX, and they use XXXX. Only one test is given per day (R. 1053-1054).

XXXX described XXXX as XXXX. Differentiated instruction is used, meaning that instruction is tailored to meet the needs of individual students. This Student did not have to take more than one final exam per day. As part of the XXXX program, starting in the XXXX grade, students are given learning style inventories and they are made familiar with how they learn and how to become advocates for the way they learn (R. 1054-1057).

XXXX testified regarding an observation she had involving a XXXX. On cross-examination, XXXX stated that the Student XXXX (R. 1059-1061, 1336-1337).

XXXX testified regarding the textbooks used by the XXXX, referred to as XXXX textbooks, which are specifically designed for XXXX. For some students, the books must be supplemented by teacher materials. This Student’s social studies textbook was supplemented. She also testified that for the XXXX grade, homework is written on the board every day before homeroom begins. Students use a homework assignment book and are required to copy the homework from the board. This student is also given a teacher copy of the homework (R. 1061-1063).

XXXX described an average day for the Student during the 2008/09 school year. After a XXXX minute bus ride, the Student arrived and entered the XXXX building where he placed his head down at a table and continued his nap from the trip. On cross-examination, she stated that the Student was not sleeping, but that he was not engaging with the adults that were in the building at that time. He had homeroom, followed by XXXX in the XXXXe classroom with the XXXXe teacher, Ms. XXXX. She did not remember the exact sequence of classes, but confirmed that the Student participated in XXXX, XXXX, XXXX, and XXXX. During XXXX period, he participated in the XXXX program. On cross-examination, XXXX testified that at the beginning of the 2008/09 school year, Ms. XXXX was a New York State certified XXXX teacher, and she was working towards certification in special education. She also stated that Ms. XXXX, the Student’s XXXX teacher, was certified in content area XXXX; that Ms. XXXX, the Student’s XXXX teacher, was certified in XXXXt; that Ms. XXXX, the Student’s XXXX teacher, was certified in XXXX; that Ms. XXXX, the Student’s XXXX teacher, was certified in XXXX; that Ms. XXXX, the Student’s XXXX teacher, is not certified as a teacher; and that Mr. XXXX, the Student’s XXXX teacher, was certified in physical education. None of the Student’s teachers were certified special education teachers as of the beginning of the 2008/09 school year. On redirect examination, XXXX testified that the Student’s XXXX teacher, XXXX, was a certified XXXX teacher and that she is certified in XXXX. She also stated her opinion as to the importance of content area certification versus special education certification in instructing students at XXXX (R. 1073-1079, 1289-1295, 1305-1306, 1441-1443, 1463-1465).

XXXX testified that the XXXX grade XXXX program is XXXX. Students XXXX (R. 1079-1080, 1089-1090).

XXXX reviewed course descriptions of the XXXX courses taught at the XXXX, that were drafted by XXXX staff for the purpose of obtaining accreditation from the New York State Association of Independent Schools (R. 1090-1118; Exs. P-X, P-Y, P-Z, P- AA).

XXXX addressed how XXXX is incorporated as part of the Student’s XXXX program. Students who have difficulties with XXXX are referred to the XXXX program. In the XXXX classroom, the teacher uses XXXX (R. 1119-1121).

XXXX testified that the Student was able to XXXX (R. 1123-1128).

XXXX reviewed a XXXX of the Student’s XXXX from March 18, 2009 and stated that XXXX (R. 1136-1140; Ex. P-K).

XXXX testified that in her opinion, it would not have been appropriate for the Student to participate in XXXX during the 2008/09 school year, because XXXX. She described the Student as XXXX. She also stated that the Student XXXX (R. 1140- 1143).

XXXX described the Student’s participation in XXXX (R. 1143-1145).

XXXX testified that the Student received XXXX (R. 1145-1153).

XXXX testified regarding the Student’s participation in a XXXX class, which consisted of XXXX (R. 1153-1156).

XXXX reviewed the Student’s IEP for the 2008/09 school year and stated her opinion that XXXX. On cross-examination, XXXX testified that the Student was not provided with XXXX as part of his program at XXXX, and she had no opinion whether XXXX would benefit the Student. She also stated that during the 2008/09 school year there was no XXXX if the Student needed it (R. 1162-1166, 1245-1251, 1432, 1435).

XXXX stated her opinion that the Student made progress at XXXX during the 2008/09 school year, in that he made the honor roll for the first time during the 3rd quarter of the 2008/09 school year, and he progressed in XXXX as measured by an administration of the XXXX test. She also noted progress from the 2007/08 to 2008/09 school years, noting that during the XXXX grade, the Student XXXX, but that in the XXXX grade, when he was administered only one final per day, he passed XXXX. XXXX also stated that the Student progressed XXXX, in that XXXX (R. 1167-1169, 1175-1181; Exs. P-BB, P-CC, P-DD).

On cross-examination, XXXX testified that the Student XXXX (R. 1223-1233).

XXXX is a XXXX teacher at the XXXX. She is dually certified as XXXX. She stated that she was the Student’s XXXX teacher since 2006. During the 2008/09 school year, she saw the Student twice a week for XXXX. One day per week he was XXXX (R. 1489-1495).

Ms. XXXX described the Student’s XXXX needs. She stated that the Student has difficulty in XXXX (R. 1495-1502).

Ms. XXXX testified that the Student was XXXX (R. 1502-1507; Ex. D-1).

Ms. XXXX also testified that she worked with the Student on XXXX goal #6 contained in the District’s IEP, which involved XXXX. On cross-examination, Ms. XXXX testified that she agreed with the XXXX goals contained in the District’s IEP, but she thought they were “much too limited.” She stated that she implemented the XXXX goals and monitored his progress on them. She also stated that she implemented XXXX goals that were not contained in the District’s IEP, which are described in the Student’s progress reports. On redirect examination, she identified the additional goals as XXXX (R. 1507-1508, 1600-1607, 1712-1714; Ex. D-1).

Ms. XXXX also reviewed the goals on the Student’s IEP relating to XXXX, and she testified that she worked with the Student on goal #3, involving XXXX. She reviewed goal #4, involving XXXX, and stated that the Student XXXX. She also reviewed goal #5, involving XXXX, and stated that during the 2008/09 school year, she did not XXXX. She also stated that she did not observe the Student in XXXX (R. 1508- 1509; Ex. D-1).

Ms. XXXX reviewed progress reports she drafted for terms 1, 2, and 4 of the 2008/09 school year. The term 1 report covers October and November. Students are tested during the months of September and May, and no XXXX instruction occurs during those times, as students are tested individually. The term 2 report indicates that the Student took his studies more seriously and was trying to improve his skills. Ms. XXXX stated that the Student improved in his use of XXXX strategies employed in the classroom, including XXXX. He also XXXX (R. 1520-1524, 1552-1558, 1592-1593, 1629-1630; Exs. P-EE, P-FF, P-MM).

On cross-examination, Ms. XXXX testified that in term 2, the Student began to XXXX. She stated that there were times when the Student was XXXX (R. 1614-1616, 1623-1625, 1627-1629, 1633-1640, 1645-1650, 1653-1654, 1728-1737, 1746-1747, 1768-1769, 1774; Exs. P-B, P-H, P-J, P-EE, P-FF, P-MM).

Also on cross-examination, Ms. XXXX stated that there is no grading in her class, that it is a pass or fail course, that she has never failed a student in XXXX because she is trying to encourage students to learn, and that everyone gets a pass, no matter what they do. On redirect examination, she stated that if she has concerns about a student in XXXX class, she notifies the parents and speaks with the administration. She also stated that in determining how a student is passing XXXX, she considers whether they XXXX, whether they XXXX, whether they XXXX and whether they XXXX. She testified that this Student XXXX during the 2008/09 school year; that most of the time he XXXX; that he XXXX to the best of his ability; that she did not feel it necessary to contact the Student’s parents about any concerns with his functioning in XXXX; that she did “not really” have any concerns with the Student’s functioning in XXXX; and she did not feel it necessary to go to the administration to discuss any concerns regarding the Student (R. 1617-1618, 1720-1722).

Ms. XXXX stated her opinion that the Student needed XXXX because he XXXX although he made progress in XXXX, he is better able to XXXX and he is becoming XXXX. On cross-examination, Ms. XXXX testified that the Student misses a special, a club, or a study hall during the time he is seen for XXXX. She also stated her opinion that the Student would not XXXX (R. 1530-1532, 1631-1632, 1656, 1658-1660).

Ms. XXXX reviewed a chart she created showing the Student’s progress in XXXX as measured by administrations of the XXXX from September 2004 through May 2009. She stated that between May 2008 and May 2009, the Student’s XXXX and XXXX skills stabilized. She also stated that there was a small improvement in his XXXX, which is XXXX skills. The Student’s XXXX, which she described as XXXX, improved by almost one grade level. His XXXX improved by almost two grade levels. Ms. XXXX characterized the Student’s total growth in XXXX over the course of the year as “very, very significant improvement” (R. 1570-1577; Ex. P-NN).

On cross-examination, Ms. XXXX acknowledged that the Student progressed in XXXX, and that he had a “major regression” during the 2006/07 school year. She also noted that the Student’s total XXXX increased back to the 23rd percentile as of May 2009, but that she was unsure whether the 23rd percentile “may be sort of a max” for the Student. XXXX, the Student’s XXXX teacher, stated her view that administration of the XXXX tests show where the Student’s strengths and weaknesses are, and she stated that “in a child with special ed [sic] needs as [this Student] has, it doesn’t mean that if we keep on working on the negatives, we’re going to cure him. It just shows us areas of weaknesses, but the weakness could be because of a XXXX that you’re not going to correct” (R. 1667-1673, 2975-2976; Ex. P-NN).

Ms. XXXX reviewed a description of the XXXX program at the XXXX that was prepared as part of an application made by the school to the New York State Association of Independent Schools, and she identified portions of the program description that were used to instruct the Student in XXXX (R. 1579-1582, 1584-1590; Ex. P-W).

Ms. XXXX stated her opinion that the Student’s XXXX program at XXXX for the 2008/09 school year met his needs, in that he needed XXXX (R. 1591).

XXXX was the Student’s XXXX teacher at the XXXX during the 2008/09 school year. In May 2005, Ms. XXXX obtained provisional certification as a XXXX teacher for grades XXXX. She has been employed by XXXX for four years. Ms. XXXX was also employed by the XXXX School District as an XXXX grade XXXX teacher. She described her job duties at XXXX, which included teaching XXXX; creating XXXX lesson plans; lunch duty; leadership committees; and a mentor in the XXXX. She also engages in parent-teacher conferences and provides extra help during eighth period. In addition, Ms. XXXX stated that she developed curriculum and uses XXXX materials that coincide with the New York State standards (R. 1794-1801).

During the 2008/09 school year, Ms. XXXX was the Student’s homeroom teacher and his XXXX grade XXXX teacher. The XXXX class met daily for 40 minutes. She also saw the Student at least once a week in her eighth period extra help class for 40 minutes per session. On cross-examination, Ms. XXXX testified that the Student took advantage of extra help before quizzes and tests and that in a majority of cases, she worked with him one-on-one, since none of his classmates came in for extra help (R. 1801-1803, 1914-1916). She described the make-up of the Student’s XXXX class. He was one of four XXXX grade students in her class. At the beginning of the year, all of the students functioned at a XXXX grade level, and at the end of the year, they functioned at a XXXX to XXXX grade level. At the beginning of the 2008/09 school year, this Student functioned at XXXX. On cross-examination, Ms. XXXX testified that she administered a XXXX grade XXXX assessment in the beginning of the year to assess his then current XXXX ability. The Student was permitted to XXXX. He was assessed to be functioning in the XXXX. She also stated that prior to the 2008/09 school year the Student was evaluated through the administration of the XXXX Achievement Test, which contains a XXXX section. She described the Student as having XXXX; poor XXXX skills; that XXXX were “okay,” but that he relied on either a XXXX or XXXX for XXXX and XXXX (R. 1803-1804, 1882-1883, 1905-1911).

Ms. XXXX stated that the Student needed XXXX and XXXX. He did not XXXX (R. 1804-1805, 1807, 1809, 1814-1815, 2098-2099).

Ms. XXXX described the XXXX subjects taught in her XXXX grade classroom starting with XXXX. On cross-examination, Ms. XXXX indicated that XXXX (R. 1808- 1812, 1821, 1889, 1920-1921, 1925-1934).

Ms. XXXX described the XXXX. She testified regarding the XXXX she provided to the Student during the 2008/09 school year, including XXXX, XXXX, and XXXX. On cross-examination, she stated that this Student was the only individual who needed XXXX. Homework was XXXX. The Student was also prepared for XXXX. She provided Students with XXXX questions during class or in homework and after they reviewed them, Ms. XXXX let them know that those were the types of questions they would see in the XXXX. Ms. XXXX reinforced a number of skills to prepare the Student for the XXXX XXXX, including XXXX. They also reviewed XXXX (R. 1815-1821, 1872- 1874, 1944-1947).

Ms. XXXX testified that she assessed student progress through quizzes, tests, projects, class work and homework. She stated that by the end of the 2008/09 school year, the Student’s XXXX and XXXX improved; they continued to work on XXXX; that XXXX was never much of an issue, and his XXXX improved slightly, but that he still has XXXX. He was more XXXX at XXXX, and he progressed from a XXXX grade level to a XXXX grade level by the end of the 2008/09 school year. On cross-examination, Ms. XXXX testified that the Student occasionally XXXX (R. 1821-1825, 1955).

Ms. XXXX stated her belief that the Student would not perform well in XXXX. On cross-examination, Ms. XXXX acknowledged that she has never observed the Student in XXXX She also expressed her opinion that the Student XXXX (R. 1828-1829, 1831- 1837, 1935-1936).

On cross-examination, Ms. XXXX stated that she never taught XXXX and she did not participate in the development of the Student’s IEP for the 2008/09 school year (R. 1881).

Ms. XXXX reviewed the XXXX goals contained in the Student’s IEP for the 2008/09 school year. She testified regarding the manner in which she worked with the Student on goal 11 with respect to XXXX. The Student made progress in XXXX but that was XXXX. The Student was able to XXXX And needed more XXXX. She stated her opinion that it was unclear whether the goal related to XXXX or XXXX. On cross-examination, Ms. XXXX stated that the Student could XXXX, and that he was making progress, but he mastered very little. She also stated that he made slight progress with XXXX. He had difficulty XXXX (R. 1856-1860, 1863-1864, 1896-1897, 1941; Ex. D-1).

Ms. XXXX also testified that she worked with the Student on goal 10 with respect to XXXX, and that he made a little bit of progress. He had difficulty XXXX. He needed XXXX. He was unable to XXXX (R. 1864-1872; Ex. D-1).

In her rebuttal testimony, Ms. XXXX stated that the District’s recommendations for XXXX, XXXX, XXXX, and XXXX were appropriate (R. 4297-4300; Ex. D-1).

Ms. XXXX stated her opinion that the Student’s placement in XXXX during the 2008/09 school year was appropriate, due to XXXX (R. 1877, 1880).

On cross-examination, Ms. XXXX stated that she was on maternity leave from September 20 through November 2, 2008. She reviewed an Academic Report to Parents that was generated by a substitute teacher on September 30, 2008 at the direction of the XXXX administration, and a second form that was generated by her on December 5, 2008. She agreed that the form was vague with respect to improvement made or needed. She testified that XXXX (R. 1965-1966, 1972-1981; Exs. P-G, P-H).

Ms. XXXX testified that the Student needed XXXX (R. 1995-1998, 2000-2001).

Ms. XXXX testified that she worked on XXXX goals contained in the Student’s

IEP (R. 2004-2005).

Ms. XXXX testified that as of the beginning of the 2008/09 school year, the Student functioned on the XXXX grade level in XXXX, based upon both her assessment and upon his results on the XXXX Achievement Test that was administered in the spring 2008. On cross-examination, she reviewed her grade book and confirmed that based on an assessment she conducted during the first two days of school, the Student functioned at XXXX grade level. She also confirmed that the Student’s total XXXX

XXXX on the XXXX as of the end of the 2007/08 school year was a XXXX (R. 2025- 2029, 2041; Exs. D-16, D-17).

On the District’s rebuttal case, Ms. XXXX testified regarding her administration of the XXXX to the Student in the spring 2009. He was tested in the areas of XXXX, XXXX, XXXX, XXXX, and XXXX. He received XXXX. Ms. XXXX testified that she used the Student’s scores on the XXXX from 2008 as an indication of where the Student was functioning, but that she relied on her own testing in the beginning of the 2008/09 school year in making a determination over his then current functional level. She stated that the XXXX that she administered in April 2009 is not necessarily an accurate representation of the Student’s progress in class at the time it was administered, since she did not review the questions contained in the test to determine if the material is similar to what she teaches the Student in class (R. 4247-4249, 4272-4274, 4277-4278; Exs. D-17, D-20).

Ms. XXXX testified extensively on cross-examination regarding her grade book. She also reviewed the Academic Report to Parents that she drafted in February 2009, and noted that the Student XXXX. On redirect examination, she confirmed that the Student was XXXX (R. 2080-2081, 2103-2108, 2101; Exs. D-20, P-I, P-DD).

XXXX was the Student’s XXXX teacher. She is employed by XXXX and she is an independent contractor for the XXXX. As of the time of her testimony, she worked as head of the XXXX for 4 years and she was employed by XXXX for 8 years. As part of her job duties, Ms. XXXX taught XXXX, attended CSE meetings, coordinated curriculum of the other two XXXX teachers from XXXX who worked at the XXXX, and she had some extra clerical duties. Ms. XXXX holds New York State certification as a special education teacher (R. 2116-2119).

Ms. XXXX stated her familiarity with the Student. She stated that she has known the Student since he began to attend the XXXX in the XXXX grade, and that she was his XXXX teacher for most years. She worked with the Student during the 2008/09 school year, seeing him 5 times per week for 42 minutes per day. He was grouped with one other student in the XXXX. On cross-examination, she stated her belief that XXXX is an appropriate service for the Student, but that she felt that XXXX. She also stated that the other student with whom this Student was placed in the XXXX for the 2008/09 school year was placed in the class based on scheduling. Some of the students’ needs were similar, but they had a “totally different learning style, XXXX.” Both students needed XXXX 5 times a week for 42 minutes, and both were the XXXX age. She stated that “they’re not grouped for XXXX having anything to do with their needs.” She did state, however, that the Students were functioning within 3 years of each other in the areas of XXXX, XXXX, and XXXX (R. 2119-2120, 2228, 2237-2238, 2242-2243, 2909- 2910).

Ms. XXXX described the Student as having XXXX and XXXX problems with poor XXXX. She stated that XXXX is an ongoing job that she has with the Student. She described an improvement in their relationship where the Student now XXXX. She also stated that she had daily contact with the Student’s other teachers and she attended faculty and CSE meetings. On cross-examination, she stated that the Student has difficulty XXXX. She also stated that other students at XXXX have similar issues with

XXXX (R. 2121-2122, 2329-2332).

Ms. XXXX testified that she has observed the Student interact with the other students at XXXX during XXXX, in the lunch room, and in the hallways, socializing with other boys. She described the Student’s educational needs at the beginning of the 2008/09 school year. She stated that in XXXX, she worked on the Student’s XXXX skills. She referred to the Student’s Individualized Education Service Plan (the “IESP”) developed by her in conjunction with the XXXX District’s CSE, and indicated that she worked on XXXX goal #1, which involved XXXX. She used workbooks and worksheets, as well as the Student’s textbooks. She also worked with the Student on goal #2, involving XXXX. The Student used XXXX, such as XXXX. The Student had difficulty with XXXX. She stated that the Student was improving in that area, but acknowledged that it is a very difficult skill at the Student’s XXXX level (R. 2122-2137; Ex. P-OO).

Ms. XXXX stated that she also worked with the Student on his XXXX skills, which she described as below grade level. She stated that he had difficulty actually XXXX and confusion with XXXX. They worked on XXXX on simple topics using XXXX. She also worked with the Student over the years on XXXX (R. 2137-2140).

Ms. XXXX also worked on the Student’s XXXX during the 2008/09 school year. When there was a test in a subject area and the teachers provided study booklets, she worked with the Student to review by XXXX. She also worked with the Student on XXXX skills, which she described as XXXX. She had contact with Ms. XXXX, who kept her informed about issues or tests with which the Student had difficulty, and she reviewed and reinforced concepts with him, since he was going to see the material again on a midterm or a final (R. 2140-2144).

Ms. XXXX also engaged in XXXX with the Student, exploring XXXX (R. 2143).

Ms. XXXX testified regarding progress the Student made on his goals contained in his IESP. She stated that the Student found XXXX very difficult and that he was functioning using materials that were on a XXXX or XXXX grade level. In the area of XXXX, the Student was able to XXXX. He was able to XXXX and, with assistance, he was able to XXXX. With respect to XXXX, he was able to XXXX. The Student does not XXXX. In the area of XXXX, the Student definitely needs his accommodations of XXXX and XXXX. If the concept is XXXX, the Student can succeed. He has difficulty in XXXX and his XXXX is very poor. The Student was able to XXXX on a XXXX grade level, progressing from the XXXX grade level at the beginning of the year. He was able to do XXXX with moderate assistance. On cross-examination, Ms. XXXX confirmed that in assessing progress on goals and objectives, she referred to the IEP criteria and she compared it to the work produced by the Student to see whether he met the criteria or whether he was progressing. On redirect examination, Ms. XXXX stated her opinion that as of March 2009, the Student progressed in XXXX, XXXX and XXXX. She reviewed the Student’s scores on the XXXX Test and stated her opinion that the Student progressed in XXXX from a grade equivalent of XXXX in May 2008 to a grade equivalent XXXX as of May 2009. She also noted progress in XXXX over that same period of time from a grade equivalent of XXXX to XXXX. In addition, Ms. XXXX reviewed the results of the XXXX Tests from February 2008 and February 2009 and noted improvement in XXXX. However, she stated her opinion that the XXXX is not used as much to demonstrate progress as it is to show XXXX. She also noted an increase in the Student’s standard scores on the XXXX Test in XXXX, XXXX, and XXXX, but she could not state whether the difference in scores was statistically significant. Ms. XXXX also discussed the Student’s need for XXXX (R. 2151, 2154- 2162, 2167-2171, 2190-2193, 2267-2272, 2376-2379, 2911-2913, 2956-2958, 2988- 2990, 3026-3028; Exs. D-21, D-22, D-23, D-24, D-25, P-D, P-NN, P-PP).

Ms. XXXX stated that she has known the Student since the XXXX grade and XXXX. On cross-examination, Ms. XXXX stated that XXXX (R. 2186-2189, 2370-2372).

Ms. XXXX stated that XXXX is the area with which the Student has the most difficulty, and that he needs XXXX. In all of the years she worked with him in the XXXX, he was either XXXX or XXXX. She stated that the Student has difficulty even when XXXX. She also believed that XXXX. On cross-examination, Ms, XXXX stated that she

XXXX (R.2195-2196, 2200-2206, 2603-2604).

Ms. XXXX testified that the Student performed very well academically during the 2008/09 school year, noting that he made the honor roll in April 2009 and that he looked very proud during the assembly at which the award was conferred (R. 2207-2209; Ex. P-BB).

XXXX testified that she has been the District’s XXXX for 6 years. She has provisional New York State certification in the area of XXXX. She stated that her job duties at the District included working with students who receive special education services to help them XXXX. Ms. XXXX stated that she never taught the Student; she never XXXX involving the Student; she never evaluated him, and she never met him. She did, however, observe him, together with XXXX, in his placement at the XXXX. She stated that, had the Student entered the XXXX in the 2008/09 school year, she would have XXXX to ascertain XXXX and XXXX (R. 3716-3719, 3727-3728, 3734- 3735).

Ms. XXXX testified that she was present at the Student’s CSE meeting in May 2008, and she identified a number of individuals who participated in the meeting, but she remembered little about the details of the meeting. She did, however, remember that XXXX was discussed, and that she discussed with the CSE team that if the Student was to return to the XXXX, they would help him to get involved in any clubs or sports in which he was interested (R. 3744-3747, 3749-3753, 3801, 3804-3805, 3807-3808, 3818-3819, 3823-3824, 3826; Exs. D-11, P-TT).

Ms. XXXX also testified regarding her involvement, if any, in the physical drafting of students’ IEPs. She stated that when there is discussion regarding her area of expertise and someone requests a change or wants to add information, she takes notes during the meeting and following the meeting, she inputs changes into the IEP program (R. 3774-3775).

XXXX testified that she has been employed by the District for four years in the capacity of a special education teacher at the XXXX. During the 2008/09 school year, she was a special education teacher for XXXX classes (one class as a substitute teacher for Ms. XXXX for one quarter of the school year), a XXXX, and a XXXX. This Student was to be assigned to Ms. XXXX’s XXXX class (R. 3849-3854).

Ms. XXXX testified that she was present at the Student’s CSE meeting held on May 27, 2008, and that she took handwritten notes. She stated that she never met the Student, she never evaluated him, and she never observed him. She also had little memory about the meeting or about the documents reviewed during the course of the meeting (R. 3854-3860, 3883-3907; Exs. P-II, P-JJ, P-TT, P-VV).

On cross-examination, Ms. XXXX stated her belief that the Student was similar to the cohort group that made up Ms. XXXX’s XXXX class during the 2008/09 school year. She also stated that she has never added goals to an IEP after the close of a CSE meeting that were not first discussed at a CSE meeting (R. 3920, 3926).

On re-direct examination, Ms. XXXX testified that although she could not discern the Student’s functional levels in terms of specific grade levels from the IEP, she believed that based upon the discussion of the Student as a learner at the CSE meeting in terms of his levels, needs, and abilities, he was similar to the Students she taught in Ms. XXXX’s class (R. 3927-3936).

On re-cross examination, Ms. XXXX stated that she had no recollection as to whether any participant at the CSE meeting discussed the Student’s functioning in terms of grade level (R. 3938-3939).

XXXX is a XXXX who was employed by the District since September 2009. From October 8, 2008 through August 2009, she was employed by XXXXXXXX XXXX and was assigned to provide XXXX services to students at the XXXX. She possesses clinical certification in XXXX and she is certified in New York State as a teacher of the

XXXX (R. 4007-4011).

Ms. XXXX stated her familiarity with the Student. She provided XXXX services to him from October 2008 through June 2009. She met with him twice per week in a small group for 30 minutes and one time per week individually for 30 minutes. Services were provided on a pull-out basis. Ms. XXXX participated in a CSE meeting held with respect to this Student on June 3, 2009. During the 2008/09 school year, she worked on XXXX at the XXXX or XXXX grade. She conferred with the Student’s XXXX teacher, Ms. XXXX. She also stated that she worked on XXXX and XXXX. She taught him XXXX to aid his XXXX, She stated that XXXX was not the Student’s “strong point” and that much of their work was accomplished with XXXX (R. 4014-4015, 4019-4028, 4037-4039).

Ms. XXXX testified that in her classroom, the Student worked on XXXX and XXXX, XXXX, and XXXX. She had no recollection whether the Student’s XXXX or XXXX skills improved during the 2008/09 school year. After reviewing the Student’s XXXX report, she stated that the Student improved in his ability to XXXX (R. 4040, 4044, 4048-4049; Exs. P-E, P-WW).

Ms. XXXX stated that the Student was not XXXX in the beginning of the 2008/09 school year in his XXXX sessions. She observed that the Student was XXXX, as opposed to XXXX. She was uncertain as to whether the Student’s XXXX related to his XXXX or XXXX. After approximately 4 to 6 weeks, they XXXX and he became XXXX, and XXXX (R. 4053-4059).

Ms. XXXX testified that she administered selected subtests of the Test of XXXX, at the direction of the agency in preparation for the Student’s annual review. She stated her opinion that the Student’s XXXX skills were significantly below the XXXX grade level, but that she could not estimate the grade level at which he performed. On cross-examination, she confirmed that the Student completed the XXXX. She did not knowhow long it took the Student to complete the test (R. 4066-4081, 4158-4160; Ex. P- XX).

Ms. XXXX also testified regarding her participation at the Student’s CSE meeting held in June 2009 and stated that she had no recollection as to whether she provided information to the CSE regarding the Student’s progress and she had no recollection as to comments made by other CSE members with respect to the Student’s progress during the 2008/09 school year (R. 4088-4094).

Ms. XXXX reviewed the Student’s IESP prepared by XXXX District and identified goals numbered 7 through 13 as having been worked on during the 2008/09 school year. She also reviewed the District’s IEP and stated her opinion that goal 12 was not an appropriate goal, insofar as its reference to the XXXX grade level, for the Student for the 2008/09 school year. She reviewed each of the other XXXX goals recommended by the District and stated her opinion over their appropriateness. She stated that she worked on goal 13 which involved XXXX. She did not work on goal 14, involving XXXX, and she did not believe that it was an appropriate goal for the Student as of the time she began to work with him in October 2008. She worked on goal 15, involving XXXX. She worked on goal 16, involving XXXX. She also worked on goal 17, involving XXXX, but she did not work with XXXX. On cross-examination, she confirmed that she did not participate in either the District’s CSE meeting or XXXX’s meeting to prepare the Student’s IESP (R. 4100-4103, 4110-4114, 4143-4144; Exs. D-1, P-OO).

Ms. XXXX also reviewed XXXX goals prepared by Ms. XXXX. She stated that she worked on goal 1 involving XXXX, but not at the XXXX grade level. She worked on goal 2, involving XXXX. She worked on goal 3, involving XXXX. She also worked on goal 4, involving XXXX and XXXX of a sequence of events presented orally. She also worked on goal 5, involving XXXX. She used word retrieval strategies, part of goal 6, but she did not use 3 words. She used XXXX strategy, which she identified as XXXX. She also XXXX, and noted that XXXX (R. 4114-4119, 4162-4164; Exs. D-15, P-YY).

On cross-examination, Ms. XXXX reviewed the goals contained in the Student’s IESP prepared by XXXX. She stated that although she believed that working on XXXX was appropriate (goal 12), she did not believe the use of XXXX were appropriate. She also stated that XXXX was appropriate (goal 9), but she did not believe that XXXX was appropriate. On re-direct examination, Ms, XXXX testified that she did not communicate her concerns with respect to the IESP goals with the Parents, XXXX, or the District, and she did not propose amended goals in those areas. She also reported progress on each of the goals, even though they were not implemented as written (R. 4147-4150, 4181-4187; Exs. P-OO, P-PP).

Also on cross-examination, Ms. XXXX testified that she worked with the Student on XXXX, XXXX, XXXX, and informally on XXXX, and she confirmed on cross-examination and re-direct examination that she did not know whether any other individuals at XXXX worked on those skills with the Student (R. 4164-4167, 4172-4174).

XXXX was the Student’s teacher for XXXX, XXXX, and XXXX at XXXX during the 2007/08 school year. She testified that she has a Bachelors degree in education and a Masters degree in special education. She possesses New York State certification as a regular education teacher grades K-6. Prior to her employment at XXXX, she was a teaching assistant in a special education classroom in a public school. Ms. XXXX administered the XXXX test to the Student in the spring 2007. At the time of her testimony, the Student was part of her XXXX. Ms. XXXX testified regarding her test administration. She stated that the Student did not receive any testing accommodations, and she thought he XXXX. She testified that she XXXX, which included a statement that the purpose of the test is to measure achievement, which was defined in the instructions as how he may have improved from the previous year (R. 4319-4323, 4326, 4354-4355; Exs. D-17, D-31).

Ms. XXXX stated that at the time she was hired by XXXX in 2001, it was explained to her that the results of the XXXX were used for the purpose of determining whether services were required for a particular student, such as XXXX, XXXX, and XXXX services (R. 4328-4329).

On cross-examination, Ms. XXXX testified that the XXXX that she administered to the Student in April 2008 did not contain the Student’s age. She did not know what effect, if any, the absence of that information had on the validity of the scores, since they were normed by grade and age (R. 4336-4337; Ex. D-17).

On re-direct examination, Ms. XXXX stated that in taking the XXXX, the Student was required to XXXX. She also stated that she read information contained in the directions to the Student regarding the purpose behind the test. She stated that she observed the Student’s demeanor during test-taking, and that he demonstrated XXXX and XXXX. She also stated her opinion that administration of the test to the Student did not XXXX (R. 4350-4354; Ex. D-32).

CONCLUSIONS OF LAW

Two purposes behind the Individuals with Disabilities Education Act (“IDEA”) [20 U.S.C. Sections 1400-1482] are (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and XXXX designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected [20 U.S.C. Section 1400(d)(1)(A)-(B); see generally Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)].

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [Rowley, 458 U.S. at 206-207; Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. While school district are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. c. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.D.N.Y. 2007); see also O’Toole v. Olathe District School Unified School District No. 233, 144 F.3d 692, 701 (10th Cir. 1998)]. Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App.

LEXIS 17947].

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [20 U.S.C. Section 1415(f)(3)(E)(i); 34 C.F.R. Section 300.513]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203]. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” [Walczak v. Florida Union Free School District, 142 F.3d 119, 130; see Rowley, 458 U.S. at 189]. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]; see Grim, 346 F.3d at 379].

Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132]. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student with an opportunity greater than mere ‘trivial advancement’” [Cerra, 427 F.3d 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). In determining an appropriate placement in the least restrictive environment, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; Patskin v. Board of Education, 583 F.Supp.2d 422,428

(W.D.N.Y. 2008)].

The IDEA permits education in more segregated settings such as dedicated special education classrooms, the home, hospitals and private institutions ‘when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily’ [Viola v. Arlington Central School District, 414 F.Supp.2d 366, 376 (S.D.N.Y. 2006); Board of Education of Poughkeepsie City School District v. O’Shea, 353 F.Supp.2d 449, 454 (S.D.N.Y. 2005) [quoting Walczak, 142 F.3d 119, 122 (2d Cir. 1988)].

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], establishes annual goals related to those needs [34 C.F.R. Section 300.320(a)(2)(i); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see Application of the Department of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Department of Education, Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9].

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, which may assist in determining, among other things the content of the student’s IEP [20 U.S.C. Section 1414(b)(2)(A); 34 C.F.R. Section 300.304(b)(1)(ii)]. In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors [20 U.S.C. Section 1414(b)(2)(C); 34 C.F.R. Section 300.304(b)(3); 8 N.Y.C.R.R. Section 200.4(b)(6)(x)]. A district must insure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status [20 U.S.C. 1414(b)(3)(B); 34 C.F.R. Section 300.304(c)(4); 8 N.Y.C.R.R. Section 200.4(b)(6)(vii)], and evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and XXXX needs, whether or not commonly linked to the disability category in which the student has been classified [34 C.F.R. Section 300.304(c)(6); 8 N.Y.C.R.R. Section 200.4(b)(6)(ix); see Application of the Department of Education, SRO Appeal No. 07-018; Application of a Student with a Disability, SRO Appeal No. 10-055].

The purpose of an evaluation is to establish a basis for planning an appropriate educational program. Application of a Child with a Disability, SRO Appeal No. 93-19. The purpose of triennial evaluation is to provide sufficient information to determine a child’s individual needs and continuing eligibility for special education. Application of a Child with a XXXXicapping Condition, SRO Appeal No. 91-37.

State regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees [20 U.S.C. Section 1415(f)(3)(B); 34 C.F.R. Section 300.511(d); 8 N.Y.C.R.R. Section 200.5(j)(1)(ii)] or the original due process complaint notice is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing [20 U.S.C. Section 1415(c)(2)(E)(i)(II); 34 C.F.R. Section 300.508(d)(3); 8 N.Y.C.R.R. Section 200.5(i)(7)(b); see Snyder v. Montgomery County Pub. Sch., 2009 WL 3246579 at *7 (D. Md. September 29, 2009; Saki v. Hawaii, 2008 WL 1912442 at *6-*7 (D. Hawaii April 30, 2008; Application of a Student with a Disability, SRO Appeal No. 09-140; Application of a Student with a Disability, SRO Appeal No. 10-076].

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Education Law Section 4404(1)c; see M.P.G. v. New York City Department of Education, 2010 WL 3398256 at *7 (S.D.N.Y. August 27, 2010; Application of the Board of Education, SRO Appeal No. 10-097; Application for a Review of a Determination by a Hearing Officer, SRO Appeal No. 10-123.

In their Due Process Complaint Notice, the Parents assert that the CSE failed to XXXX for the Student for the 2008/09 school year. They assert that the CSE failed to XXXX. Specifically, they object to the CSE’s failure to conduct an XXXX for the Student. They also allege that placement of the Student in a XXXX setting in the District’s XXXX is inappropriate, given his experience in a previous placement in a self-contained setting in the District’s XXXX school. The Parents also disagree with the provision of a XXXX with XXXX (Ex. IHO-3).

A review of the Parents’ Closing Statement and Memorandum of Law submitted on behalf of the Student particularizes a number of procedural and substantive issues that were only generalized in their Due Process Complaint Notice. The Parents allege for the first time that the District failed to conduct any formal assessment aimed at evaluating the Student’s “XXXX and XXXX issues” (see Parents’ Closing Statement at page 2); they allege that the CSE did not rely on a “valid, accurate and current assessment of [the Student’s] XXXX abilities when they convened on May 27, 2008” (see Parents’ Closing Statement at page 3); they assert that the District “failed to prove that they offered [the Student] an appropriate individualized education program with appropriate goals, present levels of performance, and an appropriate placement” (see Parents’ Closing Statement at page 4); that the IEP “did not address all of his areas of XXXX,” that “the present levels of performance are entirely vague in many areas, providing insufficient guidance for [the Student’s] parents and teachers to know if he is making adequate progress” (see Parents’ Closing Statement at page 5); that the District’s “failure to have clear and specific present levels of performance” led to a “failure to recommend adequate services on the May 2008 IEP,” and in particular, “XXXX” (see Parents’ Closing Statement at page 6); that “the May 2008 IEP contains a number of goals which were not developed or reviewed with [the Student’s] parents or teachers at the CSE meeting, but rather were added to the document subsequent to the CSE meeting, without the input of [the Student’s] parents or teachers” (see Parents’ Closing Statement at page 7); that “XXXX goals were not discussed specifically at the CSE meeting; nor was there any discussion of evaluation criteria, procedures to evaluate, evaluation schedule or primary responsibility” with respect to XXXX and XXXX goals (see Parents’ Closing Statement at page 8); that the Student’s “XXXX goals were developed and adopted after the CSE meeting” (see Parents’ Closing Statement at page 8); that the May 2008 IEP is “rife with errors, calling into question its ability to guide [the Student’s] education for the 2008/09 school year” (see Parents’ Closing Statement at pages 9-10); and that “there was no evidence put forth by [the District] to demonstrate how it would accomplish transitioning [the Student] from XXXX, a school of XXXX students, to the XXXX” (see Parents’ Closing Statement at page 13).

Insofar as it appears that many of the issues specified in the Parents’ Closing Statement bear on the procedural validity and substantive appropriateness of the IEP, issues that were raised generally in their Due Process Complaint Notice, I will consider each of the issues raised in their Closing Statement in seriatim.

First, the Parents assert that the CSE failed to conduct adequate and appropriate evaluations in all areas of the Student’s disability, specifically, that there were no formal assessments aimed at evaluating the Student’s XXXX and XXXX issues, and that the District failed to conduct an XXXX re-evaluation. The evidence shows that the CSE had a myriad of information before it when considering programming for the Student on May 27, 2008. Specifically, it had a XXXX Annual Review report dated March 3, 2008 (Ex. D-14); it had a XXXX Progress Report on goals and objectives dated Winter 2008 (Ex. D-13); it had a Social History Update dated July 31, 2007, conducted as part of the Student’s triennial evaluation (Ex. D-4); it had an XXXX Evaluation conducted by XXXX, dated June 12, 2007 (Ex. D-7); it had an Educational Evaluation dated May 24, 2007, also conducted as part of the Student’s triennial evaluation (Ex. D-6); it had a XXXX triennial evaluation dated April 18, 2007 (Ex. D-8); it had a triennial XXXX Evaluation dated March 23, 2007 (Ex. D-5); an observation conducted by the District’s school psychologist (Ex. D-11); and the CSE also had progress notes from teachers and XXXX staff, teacher reports, parent input, and report cards,. In addition, the Parents and XXXX staff provided information to the CSE about the Student. XXXX staff discussed the Student’s program at XXXX and his progress (R. 76-78, 842).

The evidence shows that the CSE had specific information relating to the Student’s issues with XXXX, XXXX, and XXXX. The Parent testified regarding information provided at the meeting by the Student’s teachers and related service providers at XXXX regarding his need for XXXX and XXXX and his need for XXXX (R. 2831-2838, 3565-3566). The proposed IEP for the 2008/09 school year contains specific references the Student’s issues with XXXX, XXXX, and XXXX. In the area of academic achievement, the Student’s levels and abilities reflect that XXXX; that he is prone to XXXX; his difficulty in XXXX, and his weak XXXX and XXXX skills. His academic needs include improvement in XXXX, improvement in XXXX, and improvement in XXXX skills. In the area of Management Needs, the IEP references his XXXX in all settings; his need for XXXX, and the need for XXXX (Ex. SD-1 at pages 3, 4, and 8).

The CSE recommended a number of program modifications, accommodations, and supplementary aids and services aimed at his difficulties with XXXX and XXXX. The student would have had XXXX. Teachers would XXXX in all academic classes. The Student would have received XXXX and XXXX as needed throughout the day in all academic classes. He also would have had XXXX throughout the day in all academic classes. Moreover, the proposed IEP sets forth specific XXXX goals that correspond to the Student’s needs relating to XXXX and XXXX, and XXXX goals relating to XXXX, XXXX, and XXXX (Ex. D-1 at pages 2, 8, 9, and 10).

Although District staff acknowledged that there were no formal assessments conducted by the District relating to the Student’s XXXX and XXXX skills, and that an XXXX re-evaluation had not been conducted, the evidence shows that the Parents did not ask the CSE for evaluations in these areas. Moreover, assuming arguendo that formal assessment of the Student’s XXXX and XXXX and an XXXX re-evaluation were required, there is no evidence in the hearing record that the lack of formalized assessment and/or re-assessment in those areas impeded the Student’s right to a free appropriate public education, significantly impeded the Parents’ opportunity to participate in the decision making process, or caused a deprivation of educational benefits. 20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. Section 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F. Supp.2d 415, 419 (S.D.N.Y. 2007); Application of a Student with a Disability, SRO Appeal No. 10-069.

The Parents allege that the CSE did not rely on a “valid, accurate and current assessment of [the Student’s] XXXX abilities when they convened on May 27, 2008.” The evidence shows that the CSE had before it a XXXX Report dated March 23, 2007 that was conducted by XXXX, a XXXX, under the supervision of XXXX (Ex. D-5). The testimony shows that the Parents, after having reviewed the results of that evaluation, determined to have the Student evaluated privately by XXXX. Although there is evidence in the record that the Parents disagreed with the District’s test results, there is no evidence indicating that they challenged the XXXX assessment at the time it was conducted, and I note that there is no specific challenge to the 2007 XXXX assessment in the Parents’ Due Process Complaint Notice. XXXX’s evaluation occurred in August 2008. The Parents did not provide a copy of XXXX’s evaluation to the District until February 23, 2009. I note that the Commissioner’s Regulations require that school districts ensure that assessments and other evaluation materials used to assess a student include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient, and that no single measure or assessment is used as the sole criterion in determining an appropriate educational program for a student. As such, the Student’s XXXX is relevant, but not determinative, in crafting an appropriate educational program for him (Ex. D-3). See 8 N.Y.C.R.R. Sections 200.4(b)(6)(iii) and 200.4(b)(6)(v).

The Parents allege that the present levels of performance contained in the proposed IEP are “entirely vague in many areas, providing insufficient guidance” for his parents and teachers to know if he is making adequate progress. I disagree. Descriptions of the Student’s academic achievement, functional performance, and learning characteristics indicate that the Student demonstrates below average XXXX and XXXX skills; his XXXX skills are in the low average range; that he has XXXX difficulties within the areas XXXX; he demonstrates XXXX skills, specifically XXXX; that he is able to XXXX; that his XXXX is below grade level; that his XXXX skills have improved and are stronger than his XXXX skills; that he performs best in XXXX and with XXXX; that his XXXX skills are below grade expectancy; that he does not demonstrate an understanding of XXXX, including XXXX; that he is not able to XXXX at grade level; that he performs better on XXXX; that he has difficulty XXXX; that he XXXX; that XXXX is a weakness; that he can XXXX; that his XXXX and XXXX is variable; that he can be XXXX; that he often struggles to XXXX; that he is prone to XXXX; and he has weak XXXX XXXX and XXXX skills (Ex. D-1 at pages 3-4).

The description of the Student’s social needs indicates that the he presents with inconsistent XXXX; he has become XXXX; he is XXXX; he is XXXX; he has XXXX; and he has improved his ability to XXXX (Ex. D-1 at page 5).

The description of the Student’s physical needs indicates that XXXX; he XXXX; he has completed XXXX; he enjoys XXXX; and he has XXXX (Ex. D-1 at pages 5-6).

The description of the Student’s management needs indicates that XXXX; he requires XXXX; he requires XXXX; he requires XXXX; he needs XXXX; he needs XXXX; he needs XXXX; he needs XXXX; he needs XXXX; and he needs XXXX (Ex. D- 1 at page 6).

Each of these descriptions of the Student is consistent with information provided by his teachers and related service providers at XXXX Moreover, XXXX personnel were present at the May 27, 2008 CSE meeting by telephone and were available to confirm the accuracy of the information and provide updates to their reports in order to ensure that the present performance levels described were current and accurate (Ex. D- 1 at page 6). I find that the May 27, 2008 IEP adequately reflects available information and describes the Student’s present performance levels at the time that the CSE convened (R. 1033-1045, 1268, 1273-1274, 1418-1420, 1495-1502, 1614-1616, 1623- 1625, 1627-1629, 1768-1769. 1774, 1804-1805, 1807, 1809, 1814-1815, 1882-1883, 2098-2099, 2121-2122, 2329-2332, 2122-2144, 2154-2161, 2194-2195, 2200-2204 2603-2604, 2912, 3927-3936). See Application of the New York City Department of Education, SRO Appeal No. 07-120.

The Parents assert that the District failed to recommend adequate services on the IEP for the 2008/09 school year, particularly XXXX. The evidence shows that the Student’s recommended special education teacher in the XXXX program, Ms. XXXX, is multiply certified in special education, elementary education, and XXXX. She stated that had the Student entered her classroom, she would have observed him and if she felt he would benefit from a XXXX class, she would have probably called a CSE meeting. She also stated that, because of her XXXX background, she teaches XXXX as part of the XXXX program recommended for this Student. I note that the District’s failure to recommend XXXX for the Student was not specifically challenged in the Parents’ Due Process Complaint Notice (R. 891-892, 962-963).

The Parents allege that the May 2008 IEP contains a number of goals which were not developed or reviewed with the Parents or teachers at the CSE meeting, but rather were added to the document subsequent to the meeting. They allege that XXXX goals were not discussed specifically at the meeting, nor was there any discussion of evaluation criteria, procedures to evaluate, evaluation schedule or primary responsibility. The evidence shows that the Parent testified that there was a general discussion about adding XXXX goals to assist the Student in the areas of XXXX, to assist with XXXX, and to XXXX. She also testified that there was discussion about the Student’s XXXX skills, and “his need for XXXX.” The Parent testified that she did recall whether there was an indication at the meeting that a goal would be added to address that issue. She also testified that XXXX staff had input into the development of XXXX goals that were discussed, but she did not specifically XXXX the substance of the discussions (R. 3564-3565, 3567-3569).

The Parents also allege that the Student’s XXXX goals were developed and adopted after the CSE meeting. The Parent testified that at the CSE meeting, XXXX, the Student’s XXXX provider, stated that the Student’s XXXX, and he needed XXXX, XXXX, XXXX, XXXX, and XXXX. The Parent also testified that specific wording of XXXX goals was not discussed, but there was discussion at the CSE meeting regarding what goals should and should not be contained in the IEP, and that Ms. XXXX would send the goals by facsimile transmission, since she was participating in the CSE meeting via cell phone (R. 2832-2838, 3407-3410, 3416-3422, 3538).

While the IEP requires a statement of measurable goals, there is no legal authority requiring parental presence during the actual drafting of the written IEP document. J.G. and J.G., on behalf of J.G., v. Briarcliff Manor Union Free School District, 682 F.Supp.2d 387, 394 (S.D.N.Y. 2010); E.G. and M.G. on behalf of A.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388-389 (S.D.N.Y. 2009). Moreover, I find that the Parents have failed to show that the CSE’s failure to discuss the wording of specific XXXX goals and XXXX goals during the CSE meeting deprived the Student of a free appropriate public education or deprived the Parents of the ability to participate meaningfully in the IEP process. Bougades v. Pine Plains Central School District, 2009 U.S. Dist. LEXIS 75439 (S.D.N.Y. 2009) reversed on other grounds, 2010 U.S. App. LEXIS 9479 (2d Cir. 2010). I note that the Parents’ Due Process Complaint Notice does not contain a specific allegation that the District determined goals after the CSE meeting.

The Parents allege that the proposed IEP is “rife with errors, calling into question its ability to guide [the Student’s] education for the 2008/09 school year.” The Parents correctly note that the IEP recommends placement in the XXXX grade at XXXX, even though the Student already completed the XXXX grade and the XXXX does not have an XXXX grade (Ex. D-1 at page 1). A review of the hearing record shows that the incorrect information was a data entry error, and that the CSE knew that the Student was entering the XXXX grade in that the XXXX curriculum was discussed at the meeting. A review of the IEP indicates that goal #12 references the XXXX grade level content area curriculum (R. 314-315, 383-384, 635-636; Ex. D-1 at page 9). A review of the record supports the Parents’ position that the IEP was never corrected. The record also reflects that the Parent acknowledged that although the IEP indicated that the Student was entering the XXXX grade, there was discussion at the CSE meeting regarding the Student’s entry into the XXXX grade, and that she did not notify the District about the error in grade at any time after she received the IEP (R. 303-305, 3305-3308, 3435-3436).

The Parents also correctly state that the IEP fails to note Ms. XXXX’s participation at the CSE meeting (Ex. D-1 at page 6). However, the record reflects that there is no dispute that Ms. XXXX did, in fact, participate by cell phone at the CSE meeting (R. 516, 3405-3410, 3412-3413).

The Parents correctly point out that the Student was not present at the CSE meeting, even though he was listed as a participant (R. 201; Ex. D-1 at page 6). They also correctly point out that the IEP lacks reference to XXXX’s site visit to XXXX (Ex. D-

The Parent testified that she was never provided with a copy of the site visit report until the impartial hearing, and her testimony is unrebutted. She confirmed, however, that XXXX gave a report of her site visit at the CSE meeting (R. 3136-3137).

The Parents correctly point out that the IEP references a XXXX report dated June 19, 2008, that allegedly formed part of the basis of the CSE’s recommendations made on May 27, 2008 (Ex. D-1 at page 7). The record reflects that XXXX was unaware of any such report, that its entry on the IEP was an error, and that the CSE did not utilize any document drafted after the CSE meeting in formulating the IEP for the 2008/09 school year. The Parent also testified to her belief that reference in the IEP to that report was an error (R. 510-513, 639-641, 3135-3136).

I agree that it is important for the District to accurately reflect all of the information upon which a CSE bases a determination in the IEP document. However, I find that there is no evidence that its failure to do so in this case impeded the student’s right to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the student, or caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App. LEXIS 17947].

The Parents also assert in their Closing Statement that “there was no evidence put forth by [the District] to demonstrate how it would accomplish transitioning [the Student] from XXXX, a school of XXXX students, to the XXXX.” I note that the Parents’ Due Process Complaint Notice does not contain a specific allegation with respect to the absence of a plan to transition the Student from the private school to the public school. The SRO recently declined to address the specific issue as to whether an IEP is required to include a plan for a student to transition into a public school setting. Application for Review of a Determination of a Hearing Officer, SRO Appeal No. 10-082. The SRO has previously held that he cannot find that a program which the CSE recommended for the child was inappropriate on the basis of parents’ speculation that he might have difficulty adjusting to a new environment, and the further speculation that the district would be unable to help him make the transition. See Application of a Child with a Disability, SRO Appeal No. 95-50. I note that there are two full-time school psychologists assigned to the District’s XXXX. XXXX has been assigned to the XXXX for 6 years and part of her job duties include XXXX and consulting with teachers and staff regarding student mental health and educational issues, and she could have been accessed had the Student demonstrated difficulties in his transition from XXXX to the District’s XXXX (R. 368-371, 416).

The Parents assert that the District failed to meet its burden of proof that the recommended placement in XXXX was appropriate to meet the full range of the Student’s educational needs. I disagree. The CSE recommended placement in a XXXX program at the District’s XXXX where he would have participated in XXXX for XXXX, XXXX, XXXX, and XXXX. He would have received instruction in XXXX with teachers who had expertise in delivering instruction to students with learning and emotional needs very similar to this Student’s needs, including students with weaknesses in XXXX, XXXX difficulties, and weaknesses in XXXX and XXXX. The curriculum is on a XXXX level, but it is modified and delivered in a way that is manageable, while allowing the Student to be placed in a building with age appropriate peers in his home community. He was also recommended for placement in a XXXX, with XXXX, where he is grouped with other students by grade, to work on XXXX and XXXX skills as well as on the delivery of mini-lessons geared towards meeting the Student’s specific goals. The students in the XXXX are in similar classes, and the XXXX teacher is aware of the expectations of the curriculum, upcoming exams, quizzes, and projects. Students learn how to XXXX with the support of a teacher (R. 82-84, 227- 230; Ex. D-1).

He was recommended for individual XXXX 1 time per week for 41 minutes, as well as small group XXXX, with a maximum ratio of 3:1, 2 times per week for 41 minutes per session. He was also provided with program modifications, including XXXX, XXXX, XXXX, XXXX, XXXX and XXXX, use of XXXX, and XXXX. Testing accommodations included XXXX, XXXX, XXXX (i.e., XXXX), XXXX, a XXXX, XXXX, and XXXX. Ms. XXXX testified that the CSE’s recommendations for testing accommodations for XXXX, XXXX and XXXX, and XXXX and XXXX were appropriate for the Student. He was to participate in XXXX and he was XXXX (R. 84, 4297-4300; Ex. D-1).

The CSE properly took mainstreaming opportunities into consideration when planning the Student’s program, and XXXX stated her opinion that such opportunities are important and significant XXXX. The Student would have had mainstreaming opportunities in XXXX, XXXX, XXXX, XXXX, XXXX, XXXX, and in XXXX. There is no evidence in the record that demonstrates that this Student cannot be educated in those mainstream areas without supplementary aides and services. The evidence shows that the Student would have been provided with supports to address his XXXX and XXXX issues in the mainstream environment. I note that the Parent testified that she observed the Student at a school-wide Thanksgiving luncheon at XXXX and noted that he was able to XXXX. In addition, Ms. XXXX testified that the Student was able to XXXX (R. 84-85, 231-232, 2209, 3616-3620; Ex. D-1 at page 2).

Although it is true that the CSE did not recommend use of an XXXX at the CSE meeting and the IEP does not reference it, the testimony reflects that the CSE knew that the XXXX would be used if the Student were to return to the XXXX. Moreover, the XXXX Evaluation states, “When XXXX, XXXX should be scheduled with [the Student] before implementing this recommendation.” Moreover, the record reflects that the District did not offer an XXXX to the Student for his use at the XXXX because XXXX and the Parents did not request it. I note that the CSE’s failure to recommend the use of an XXXX was not raised by the Parents in their Due Process Complaint Notice (R. 161-162, 230-232, 316; Exs. IHO-3, D-7). See Application of a Student with a Disability, SRO Appeal No. 10-076.

The make-up of the proposed XXXX was primarily XXXX students with a learning profile similar to this Student. Their XXXX needs were typical of XXXX year old students who struggle with XXXX; some had XXXX relating XXXX to XXXX; some had XXXX issues that created XXXX; three students in the class were diagnosed with XXXX XXXXs and one student was diagnosed with XXXX; none of the students were classified as XXXX or XXXX, and the IQ’s of the students in the class fell between the

XXXX (R. 259-265, 288-291, 323-327, 340).

Each of the students that are listed in the profile were recommended for XXXX, and there are students who have particular learning styles and learning needs, such as this Student, that are best addressed in XXXX taught by a special education teacher with an expertise in that curriculum. As of the first day of school, all of the students contained in the profile were placed together in each of the XXXX classes, identified as XXXX, XXXX, XXXX, and XXXX. The Student would have been appropriately placed with the other students as identified in the profile, in that they function similarly in XXXX, XXXX, XXXX, and XXXX. The program the District had at the XXXX, for students with a profile similar to this Student, was specifically designed to XXXX taught by teachers whose expertise is learning differences (R. 725, 743-744, 757, 807; Ex. D-12).

On cross-examination, XXXX testified extensively with respect to the issue of similarity of needs between this Student and the other students contained in the profile. Students designated as #4 and #7 received XXXX for issues related to XXXX, which this Student does not have. In the area of XXXX, student #6 functions considerably above the middle of the average range. This Student functions in the first percentile in XXXX. The CSE did not recommend any XXXX for the Student, even though XXXX skills are significantly below grade level. Students identified as #1, #2, #3, #4, #5, #8, and #9 receive XXXX XXXX to address XXXX, XXXX XXXXs. This Student demonstrates below average XXXX and XXXX skills that need improvement, and he also would have received XXXX XXXX. XXXX did not know the age span of the students contained in the profile (R. 811-823, 832-833, 838-839, 852; Exs. D-1, D-12).

On redirect examination, XXXX stated that despite some differences, she believed that this Student could have been educated together with the students in the proposed placement, based on several factors. She stated that cognitive abilities were in the XXXX range, even though not every student has the same full scale IQ; that even though not all of the students XXXX, teachers are trained to provide differentiated instruction and modify learning as needed. The content is the same, but the delivery of instruction is different. She stated that cognitively the Student would have been in a peer group similar to his own, and different strategies are utilized in the classroom to address each student’s area of difficulty (R. 862-865).

Ms. XXXX described the XXXX program as one that is designed for XXXX students who take XXXX, but with a modified curriculum and a modified grading system. The students travel in a cohort from class to class. She described the profile of the students in her XXXX class. She stated that all of the students have either a XXXX or a XXXX disability, and most are classified as either XXXX or XXXX. Most received XXXX, such as XXXX or XXXX. On cross-examination, she testified that none of the students in her XXXX class during the 2008/09 school year received XXXX as a related service. The majority of students in the class had XXXX issues (R. 895-898, 911-913).

Ms. XXXX reviewed the Student’s standardized test results contained in the proposed IEP together with the class profile and stated her opinion that the Student seemed to fit in nicely with the other students she taught. She noted that the Student performed in the middle of the range in her class in the area of XXXX; that although he performed the lowest in the profile with respect to XXXX, students #5 and #7 “were not far behind”; and that he performed the highest of the profile in the area of XXXX. She believed that based on his test scores and the IEP, he seemed to fit into her class, and she thought he would have received educational benefit. XXXX, the special education teacher who substituted for Ms. XXXX’s XXXX class for the first quarter of the 2008/09 school year, stated her belief that the Student was similar to the cohort group that made up Ms. XXXX’s class (R. 903-908, 3851-3852, 3920, 3930-3931; Exs. D-1, D-12).

When asked about discrepancies in test results of the students contained in the profile, Ms. XXXX confirmed that there were discrepancies in the XXXX test scores between this Student, designated as #10, and student #6. She also confirmed a discrepancy between this Student’s XXXX score, at less than the .1 percentile, and student #7, who performed at the 50th percentile. She stated that percentiles, and not grade level equivalents, are typically used in comparing students’ ranges of functioning, and factors in addition to differences in test scores are considered in making placement determinations. She stated that she did not believe that information regarding test scores, as contained in the profile, is sufficient in making a determination with respect to the appropriateness of a placement, and student background and current functioning are also important (R. 931-937; Ex. D-12).

Ms. XXXX testified that she prepared the profile of the students that were in Ms. XXXX’s XXXX classroom during the 2008/09 school year. On cross-examination, she confirmed that two students who were present in the class as of the first day of school, and who were later mainstreamed for XXXX, were not included in the profile. She described the process she used for creating the profile. She stated that all students, with the exception of one, were administered the WISC-IV to measure IQ. In addition, all students, with the exception of one, were administered the WIAT for educational testing. In reviewing the IEPs, all of the students were tested using the WIAT in XXXX, XXXX, XXXX, and XXXX. On cross-examination, Ms. XXXX acknowledged that the test administration dates for each of the students in the profile could have varied by as much as two years. She also reviewed their XXXX. She reviewed each of the students’ social/emotional, physical, academic, and management needs. She stated that the range of performance on the standardized assessments was “fairly equitable” from student to student. Some students had stronger XXXX skills but weaker XXXX skills; some had weaker XXXX skills than XXXX; but all fell into a range of areas that needed XXXX (R. 988-991, 997, 1003-1004, 1008-1009; Ex. D-12).

On cross-examination, Ms. XXXX confirmed that this Student’s XXXX score indicates that he is not functioning similarly with student #6 in the profile. She added that the Student is functioning in XXXX very similarly to students #7, #2, #4, and #8, since all of the students are functioning XXXX, which is defined as XXXX. Ms. XXXX testified that in terms of grade equivalent, it is possible that student #6 is functioning in XXXX at a level more than three years apart from this Student, designated as #10 (R. 999-1002; Ex. D-12).

I do not agree with the Parents’ assertion that the class profile is not probative to establish a functional grouping based merely on the omission of two students (who were later mainstreamed) from the profile. The profile provides relevant information with respect to 9 of the students with whom this Student would have been placed had he entered the District’s program during the 2008/09 school year. The IDEA does not require perfection; all that is required is that the IEP be likely to produce progress and not regression. See Connor v. New York City Department of Education, 2009 U.S. Dist. LEXIS 98605, reversed on other grounds, 2010 U.S. App. LEXIS 9479 (2d Cir. 2010) (finding IEP appropriate despite age variance in the proposed classroom having exceeded thirty-six months); R.R. and D.R. o/b/o M.R. v. Scarsdale Union Free School District, 615 F.Supp.2d 283 (S.D.N.Y. 2009) (record did not show that the composition of the recommended class would result in placement in a class composed of students with dissimilar needs); Wall by Wall v. Mattituck-Cutchogue School District, 945 F.Supp. 501 (E.D.N.Y. 1996) (student who had the lowest scores in XXXX but was at the top of the class in other areas deemed to be appropriately placed based on similarity of individual needs). Although the Parents assert that the profile is only for the XXXX class, Ms. XXXX testified that the students in her XXXX class travel as a cohort from class to class (R. 895-896).

I find that the Student would have been appropriately placed in Ms. XXXX’s XXXX classroom based on the similarity of his individual needs when compared to those of the other students in the proposed placement. Even if I found the class profile to be deficient and unreliable, the evidence shows that this Student’s individual needs, as demonstrated by the goals contained in his IEP, are similar to the other students in Ms. XXXX’s XXXX class (R. 895-898, 911-913, 943-944; Ex. D-1). See Application of a Student with a Disability, Appeal No. 10-076 at page 14.

The Parents allege in their Due Process Complaint Notice that placement of the Student in a XXXX setting in the District’s XXXX is inappropriate, given his experience in a previous placement in a self-contained setting in the District’s XXXX. The State Review Officer has repeatedly held that speculation about a student’s adjustment to a proposed placement does not afford an adequate basis for finding it to be inappropriate. Application of a Child with a Handicapping Condition, SRO Appeal No. 90-6 (objections to the size of a school and bad memories a student has of a school held insufficient in proving that subsequent placement in school is inappropriate); Application of a Child with a Disability, SRO Appeal No. 01-090 (speculation about a student’s adjustment does not afford an adequate basis for finding that the placement is inappropriate); Application of a Child with a Disability, SRO Appeal No. 98-59 (while no one can predict how [the student] will react in any school setting, parent’s contention that son cannot be educated in district’s school is too speculative).

The Parents also assert that a XXXX with required participation in XXXX is inappropriate and would cause XXXX. I disagree. XXXX testified that based on the grades earned by the Student at XXXX, it appeared appropriate for him to participate in XXXX, that he appeared to be progressing, and that he appeared to be able to XXXX. XXXX stated her opinion that the Student should be allowed to XXXX, that typically XXXX (a fact confirmed by Ms. XXXX), and that the Student was able to take the XXXXs at XXXX. XXXX also stated that she recommends XXXX when a student is significantly impaired. She stated that the District likes most students to XXXX but she acknowledged that, for some students, it is not appropriate, given their low levels of functioning. She could not answer whether the Student’s levels of performance in XXXX at the time the CSE met in May 2008 were consistent with the foundation skills a student would need to be taking a XXXX. Moreover, XXXX stated that she did not believe that it was appropriate to recommend the Student for XXXX for the 2008/09 school year based on his level of XXXX and her belief that he should be given an opportunity XXXX if at all possible (R. 120-125, 574-576, 584-585, 589, 664-665, 938, 3137-3150).

XXXX stated that XXXX administers standardized examinations to its students, including the XXXXs in XXXX, XXXX and XXXX; the XXXX exam upon entrance into the School; and the XXXX Achievement Tests, Level 8, on an annual basis. She confirmed that students must pass the XXXXs in order to graduate from XXXX. She did not know the consequence, if any, for students who do not have the ability to pass the XXXXs. She stated her opinion that it would be very devastating for the Student to XXXX, but that the Student would be required to take them nonetheless (R. 1025-1027, 1395-1399, 1409-1411, 1414, 1416).

The evidence shows that the Student is required to XXXX on a regular basis at XXXX, including the XXXX, the XXXX, the XXXX, the XXXX, and the XXXX, and that he was able to participate fully in the process without detriment. Ms. XXXX administered the XXXX to the Student in the spring 2007. She observed the XXXX. However, she also stated her opinion that XXXX (R. 4350-4354; Exs. D-17, D-20, D-21, D-22, D-23,

D-24, D-32, P-NN, P-XX).

The Parents also assert in their Closing Statement that the proposed IEP for the 2008/09 school year contained insufficient and inappropriate IEP goals. I disagree. The Parent testified that both she and her husband had the opportunity to participate as team members in the CSE meeting. She testified that each of the goals contained in the draft IEP were discussed during the meeting and she was allowed to take part in the discussion and preparation of the IEP. She also stated that she participated in the discussion with Ms. XXXX regarding XXXX topics that were raised by her, and that she concurred with her recommendations. A review of the draft IEP in conjunction with the final draft indicates that goals and evaluation criteria, procedures to evaluate the goals, evaluation schedules, and primary responsibilities relating to XXXX, XXXX, and XXXX are identical (R. 3299-3301, 3407-3409, 3416-3418, 3681-3686; Exs. D-1, P-HH).

A comparison of Ms. XXXX’s recommended XXXX goals with the XXXX goals contained in the IEP shows that the first goal appears on the IEP verbatim as annual goal #12. The second goal does not appear on the IEP. The third goal appears verbatim as annual goal #13. The fourth goal appears on the IEP as annual goal #16, but requires the Student to XXXX. The fifth recommended goal does not appear on the IEP, but it appears similar in content to goal #13. The sixth goal appears on the IEP as annual goal #14, but requires the Student to XXXX. Ms. XXXX testified that she worked with the Student on goals #13, #15, #16, and #17 during the 2008/09 school year. She also worked on the goals prepared by Ms. XXXX (R. 4112-4118; Exs. D-1, D-15).

The final IEP contains two additional XXXX goals for the Student that did not appear in Ms. XXXX’s recommendations. Annual goal #15 provides that, “XXXX.” The evidence shows that the Student was able to XXXX, but that he had difficulty with XXXX, and his teachers at XXXX agreed that the Student had difficulty in that regard (R. 1814, 1863-1864, 4342-4343; Ex. D-1). Annual goal #17 provides that, “XXXX.” The evidence shows that the Student worked on XXXX at XXXX and that he has XXXX difficulties. In addition, Ms. XXXX stated that she worked on goals #15 and #17 with the Student during the 2008/09 school year (R. 1120, 2121, 4040, 4048-4049, 4112-4113; Exs. D-1, D-15).

Ms. XXXX testified that she worked on the XXXX goals, designated as #6 and #7, contained in the District’s IEP and she stated that she agreed with them, but characterized them as “much too limited” (R. 1502-1508, 1600-1607).

Ms. XXXX also testified that she worked on XXXX goal #3 and she reviewed goals #4 and #5 and how they related to the Student in the XXXX setting. Both Ms. XXXX and Ms. XXXX testified that the Student did not XXXX, which relates to XXXX goal #4 in the IEP. Ms. XXXX also worked on both XXXX goals contained in the IEP, designated as #10 and #11 (R. 1508-1509, 1804-1805, 1856-1860, 1864-1872 , 2004- 2005, 2121, 2329-2332; Ex. D-1).

The IEP contains two additional XXXX goals. Goal #1 states that, “XXXX.” Ms. XXXX testified that the Student had difficulty with XXXX (R. 1979-1980; Ex. D-16). Goal #2 states that, “The student will independently initiate and complete 10 class assignments.” XXXX testified that this Student had difficulty initiating tasks independently, and that it was something on which he continued to work (R. 1163).

The IEP also contains two goals in the area of XXXX, a significant weakness for the Student. Goal #8 provides, “XXXX.” Goal #9 provides, “XXXX.” XXXX testified that the Student was working on XXXX and XXXX at XXXX, and that as of the beginning of the 2008/09 school year, he was only able to XXXX. Ms. XXXX described the Student’s XXXX skills as “below grade level.” They worked on XXXX, XXXX, XXXX and XXXX sentences. She also assisted the Student with XXXX (R.1038, 1139-1140, 2137-2140).

Finally, the Parents allege in their Due Process Complaint Notice that “one of the school district CSE review team members indicated to the CSE chairperson at the end of the meeting that she seriously doubted [the Student’s] ability to handle the recommended program given the level of support provided for in the IEP.” The Parents attributed the statement to XXXX. The District disputes that such comment was made. I find that even if XXXX made the comment attributed to her, although inappropriate, such comment did not impede the student’s right to a FAPE, significantly impede the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App. LEXIS 17947].

In sum, I find that the District has met its burden of proving the appropriateness of its recommended placement. Having found that the District met its burden, I need not make a determination as to the appropriateness of the Student’s private placement or whether the Parents’ claim is supported by equitable considerations. The necessary inquiry is at an end [See Burlington, 471 U.S. 359 (1985); see also Gagliardo, 489 F.3d 105, 115 (2d Cir. 2007); M.C. v. Voluntown Bd. of Education, 226 F.3d 60, 66 (2d Cir. 2000); Application of the Board of Education, Appeal No. 10-005].

ORDER

Based upon the above, it is hereby

ORDERED, that the Parents’ application for tuition reimbursement for the Student’s unilateral placement in the XXXX for the 2008/09 school year is hereby denied; and it is further

ORDERED, that the Parents’ application for a declaratory finding that the District violated the Student’s right to a free and appropriate public education is hereby denied.

NOTICE OF RIGHT TO APPEAL

Either party has the right to obtain a review of this Decision by a State Review Officer of the State Education Department, in accordance with the provisions of Part 200 of the Regulations of the Commissioner of Education of the State of New York, 8 N.Y.C.R.R. Section 200.5(j), and Part 279 of the Regulations of the Commissioner of Education of the State of New York, 8 N.Y.C.R.R. Part 279. Any appeal must be initiated within 35 days of the date of the Impartial Hearing Officer’s Decision. The Decision of the Impartial Hearing Officer shall be binding upon both parties unl ess appealed to the State Review Officer.

DATED: April 7, 2010

New City, New York

____________________________________

WENDY K. BRANDENBURG, ESQ.

Impartial Hearing Officer

Footnotes

[1] at page 7). A review of the record shows, however, that XXXX gave a verbal report about the visit at the CSE meeting (R. 372-376, 3136-3137, 3332-3333, 3440). The Parents correctly point out that the IEP references a February 5, 2008 XXXX evaluation (Ex. D-1 at page 7). A review of the record indicates that on February 5, 2008, a XXXX sent a letter to Ms. XXXX enclosing a Progress Report for IEP Goals in the area of XXXX (Ex. D-13). 73

Impartial Hearing Decision