Impartial Hearing Decision

In the Matter of [a student], Request for an Impartial Hearing pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R. §200.5)

Hearing Officer's Findings of Fact and Decision

On August 18, 2010, I was designated as impartial hearing officer by the Board of Education of the (the “School District”), pursuant to the Regulations of the Commissioner of the State Education Department (8 N.Y.C.R.R. §200.5), in the matter of [A STUDENT]. The parents requested an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415 (the “IDEA”) on August 16. In their hearing request, the parents challenge the program recommended for [A STUDENT] by the Committee on Special Education for the School District (the “CSE”) for the 2010-2011 school year, seek reimbursement for tuition costs incurred by their unilateral placement of [A STUDENT] at the [a nonpublic school] School in New York, and request the School District provide bus transportation for [A STUDENT] to travel to and from the School.

By Notice of Motion dated August 20, the School District moved to dismiss the proceeding. This motion was denied for the reasons set forth in the Decision on Motion to Dismiss, dated September 20.

A pre-hearing conference was conducted on October 6. At the conference, the hearing officer ruled on the parents’ request for bus transportation for [A STUDENT] to and from the [a nonpublic school] School. The parents’ request was denied at that time for the reasons set forth on the record (10/6/10 transcript at pp. 17-18). The hearing was scheduled for November 15.

The hearing commenced on November 15 and was continued on November 16, November 19, November 30 and December 8. The January 27 hearing date was cancelled due to inclement weather, and the hearing continued on February 17 and concluded on March 3. The parties requested permission to submit post-hearing memoranda of law. Permission was granted, and such memoranda were to be submitted by the parties on April 11. The parents requested, and were granted, a one week extension of this date. The record was closed on April 18, upon the receipt by the hearing officer of the parties’ memoranda.

The compliance date for the submission of this final written decision was extended to December 1 at both parties’ request in order to permit witnesses to be available, and then to December 31, January 30, March 1 and March 31 at the request of both parties in order to permit witnesses to be available, continue the extensive testimony and address the issues in this case. The compliance date was extended to April 30 in order to permit the preparation of the transcript and the submission of memoranda by the parties as well as consideration by the hearing officer of the parties’ submissions. Lists of the persons who appeared in this proceeding and of the exhibits entered into evidence are annexed to this decisio[a student]

Background

[A STUDENT] is a year old young man whose disability is classified, for the purposes of the IDEA, as . He has attended self-contained special education classes in the District’s schools from grade through grade, with the exception of grade. During the 2009-2010 school year, [A STUDENT] attended grade 12:1:1 special education classes for math, science, social studies and English. As of September 2010, [A STUDENT] has attended grade at the [a nonpublic school] School, a private school. The School District’s Case a certified and school district administrator, testified that she was employed by the School District as a supervisor in the middle school, in the High School’s life skills program and with respect to out-of-district placements (trans. 114). Ms. Bogen described [A STUDENT] as a student with and a disability (trans. 122). His “visual perceptual skills are weaker than his verbal skills,” and he needs strategies to structure visual information, such as graphic organizers and sequencing of math operations (trans. 123).

The parent contacted in December 2009 and conveyed her concerns about [A STUDENT]’s “struggles” in school (trans. 126). set up a meeting with the parent, [A STUDENT]’s case manager [A STUDENT]’s science teacher) and his guidance counselor (trans. 127). At the meeting, , the parent and the other participants discussed [A STUDENT]’s needs and decided to “have a full team meeting where all the teachers would be invited” in January (trans. 127-128). also informed the parent that she would have [A STUDENT] “screened” for the Wilson reading program. As a result of the screening, School District personnel provided [A STUDENT] with Wilson reading instruction (a general education service) every other day, on a one-to-one basis with a reading teacher for the remainder of the school year. As a result, special class reading was removed from [A STUDENT]’s IEP (trans. 133-134).

The team meeting was held on January 12, 2010 (trans. 128). [A STUDENT]’s science, math, English and social studies special education teachers, computer class teacher, , guidance counselor, mother and attended the meeting (trans. 128). They discussed “that [A STUDENT] was a struggling student” (trans. 128). Mr. [an English teacher], [A STUDENT]’s English teacher, and Ms. his social studies teacher, stated that [A STUDENT] “was participating and was doing very well in class” (trans. 129). The math teacher, Ms. [a math teacher] was “concerned” and discussed the possibility of [A STUDENT] moving to the 12:1:2 class (trans. 129-130). The science teacher was also concerned about [A STUDENT] because earth science was “driven by math” and [A STUDENT] “was having a tough time in that class” (trans. 130). The group also discussed the “small animal care” BOCES program that could be offered to [A STUDENT] for eleventh grade (trans. 130).

Towards the end of February, Ms. [a math teacher] contacted and informed her that [A STUDENT] would benefit from the 12:1:2 class in math for the 2010-2011 school year. Ms. [a math teacher] was teaching the 12:1:2 class at the time and stated that [A STUDENT] would “fit into the same profile” as the students in the class (trans. 131-132). Ms.

testified that during the 2009-2010 school year, she created a 12:1:2 high school program for students “who learned at a slower pace to have the opportunity” to obtain a Regents or local diploma (trans. 115). The program was designed for students who were “struggling” in the 12:1:1 classes and “needed more support, taught in a different manner” and “at a slower pace, using more of the multi-modality approach to learning” (trans. 116-117). In a class with twelve students, one teacher and two assistant teachers, adults in the class could be “consistently checking for student engagement” (trans. 117). Students in the program, which commenced in January 2010, have passed RCTs (trans. 117). These 12:1:2 classes exist for math, science, English and social studies (trans. 118). The slow pace of instruction permits teachers to fill in “gaps” in students’ learning, and teachers are able to individualize instruction to address these deficiencies (trans. 118, 125). Teachers use graphic organizers and smart boards and break information down into “smaller parts” (trans. 119-120). Teachers are “trained to really probe and engage students and probe using different types of questioning techniques” to ensure that students are engaged and understanding the material (trans. 120-121). Support classes “go along with” the 12:1:2 classes; English/social studies and math/science support classes meet on alternate days (trans. 125). Teachers in the 12:1:2 classes are certified in special education and have content-specific certification, which means that they are certified special education teachers in the subject they teach (trans. 124).

There was another team meeting in March (trans. 136). , the school had visited the 12:1:2 class and reported that it would be “an appropriate placement” for [A STUDENT] (trans. 136). described to the parent the differences between the 12:1:1 and 12:1:2 class, in particular the slower pace, “chunking” information, tailored curriculum and multi-modality approach of the 12:1:2 class (trans. 137).

A CSE meeting was scheduled for [A STUDENT]’s annual review on April 21. [A STUDENT] was evaluated by School District personnel in spring 2010. On the WoodcockJohnson III, [A STUDENT] attained the following percentile rank scores: letter-word identification, ; reading fluency, passage comprehension, ; broad reading, calculation, math calculation skills, . ; math fluency, applied problems, ; broad math, spelling, writing samples, brief writing, . ; reading vocabulary, qualitative concepts, ; and word attack, (Parent’s Ex. C). A reevaluation revealed that on the CELF-4, [A STUDENT] scored in the range on recalling sentences, word classes-receptive, word definitions and number repetition-forward (District Ex. 8). He scored in the below range on formulated sentences, word classes-expressive, sentence assembly ( %ile), semantic relationships, understanding spoken paragraphs %ile), number repetition-backward ( %ile) and familiar sequences.

The parent submitted to the CSE (prior to April 21) a evaluation report (District Ex. 6). a licensed , evaluated [A STUDENT] in January 2010 and noted that [A STUDENT] had been diagnosed with disorder, disorder and generalized On the Reynolds Intellectual Assessment Scales, [A STUDENT] attained a full scale I.Q. score of On the NEPSY-II, [A STUDENT]’s scores on language measures were in the %ile) range. On the Woodcock-Johnson III Update Tests of Achievement, [A STUDENT]’s scores revealed a delay in his academic abilities (District Ex. 6 at p. 2). recommended that “assistance within the education environment should continue in terms of a small classroom size and individual attention for reading and other academic areas” and “consideration of alternative education placement . . . given that [[A STUDENT]] does not appear to be making gains in his level of educational functioning” (id). When CSE personnel tested [A STUDENT] when he was in the sixth grade, he attained a full scale I.Q. score of %ile)1(District Ex. 7 at p. 1).

a certified special education teacher and a certified school administrator, testified that she was employed by the School District as the CSE Chairperson (trans. 27). She chaired an annual review meeting held for [A STUDENT] on April 21, 2010 (trans. 27-28). The meeting was attended by ; ;

[A STUDENT]’s guidance counselor; a general education teacher; a parent member; the parent and the parent’s advocate (District Ex. 2 at p. 6).

explained how the goals set forth on the IEP addressed [A STUDENT]’s areas of need. [A STUDENT] requires a multi-sensory instruction approach. This need is addressed in the annual goal one because [A STUDENT] would need to use auditory comprehension skills to understand an orally presented or written story (trans. 29-30). It would also be addressed in the writing goal for [A STUDENT] to write a three paragraph composition because this goal is “tactile” (trans. 30). also asserted that the math goal four was multi-sensory (trans. 30). [A STUDENT] also needed to improve his reading decoding and comprehension; these needs were addressed in his reading goals focusing on identifying main ideas and details in stories and answering factual questions about readings (trans. 30-31). His attentional needs were addressed in goals involving completing tasks without distraction, selfmonitoring and producing complete sentences (trans. 31-32). [A STUDENT]’s need to improve his receptive and expressive language skills was addressed in his therapy goals (trans. 32-33). His social and emotional needs would be addressed through a goal relating to communicating and interacting with peers in an appropriate manner (trans. 33-34). At the end of the meeting, the parent was asked if she had any questions or suggestions about or recommendations for the goals (trans. 35-36).

1 The exhibit does not indicate which testing instrument was used to evaluation [A STUDENT] on this occasio[a student]

also described how the goals set forth in [A STUDENT]’s IEP would have been addressed. The first goal (reading) would have been addressed in his self-contained English class, English/social studies support class, and in through graphic organizers and other strategies to identify main ideas and details and to sequence information (trans. 142). The second goal (reading comprehension of factual material) would be addressed in English, social studies, math and science classes as he worked on the content material for each class and learned to distinguish between relevant and non-relevant information (trans. 143). The goal of writing at least a three paragraph essay would be addressed in English, social studies, and the support class (trans. 144). The math goals would be addressed in the math class through the special education techniques used by the special education teachers to teach students math concepts and operations (trans. 143-145). The goals would be addressed by the . opined that a 41 minute session of every other day was “intensive” on the high school level (trans. 145-146). In addition, the goals would be addressed in the self-contained classes because these classes are “taught by special education teachers” who would “constantly reinforce[e]” language and sequencing of information (trans. 147). The teachers in these classes would also address [A STUDENT]’s social and emotional goals in the small classes in which it would be “easier” for [A STUDENT] to read social cues and to interact and communicate with his peers (trans. 148-149).

testified that “everyone was in agreement” on the goals (trans. 36). However, the parent indicated that she believed that the goals were the same as those for the prior year (trans. 36). explained that the goals were different (including different evaluation criteria) and that [A STUDENT] had achieved some of the prior year’s goals (trans. 38-41). Only one of the goals was the same (trans. 41-42). The other goals are the same except for their evaluation criteria, which were reduced “based on the demands of the tenth grade curriculum” (trans. 43). opined that two reading goals were appropriate for [A STUDENT] because they are “intertwined” with his four goals (trans. 82). The goals address areas which impact [A STUDENT]’s reading—recalling information, comprehension, and expressive language (trans. 82-83).

At the meeting, the CSE considered input from the who performed the evaluation and the who performed the evaluation (trans. 49-50, 52). The IEP summarized the results of March 2010 and 2009 testing. reported that [A STUDENT] was not making progress in science (trans. 97). School District personnel discussed how [A STUDENT] “was doing in his class” relating to his peers (trans. 85). According to School District personnel, [A STUDENT] “was definitely benefiting from the but still struggling” (trans. 85). testified that at the April 21 meeting, there was discussion about the 12:1:1 and 12:1:2 classes for [A STUDENT] (trans. 137-138). Prior to the CSE meeting, [A STUDENT]’s English and social studies teachers informed her that [A STUDENT] “could handle” the 12:1:1 class in grade because he was “engaged” and “enjoyed” these subjects (trans. 138-139). [A STUDENT] “was struggling” in math and science and “wasn’t participating as much in math;” as a result, School District personnel “felt it would be important for him to be in a more restrictive setting to get more attention” (trans. 141).

The IEP stated that [A STUDENT] had significant academic delays and required a program with small teacher-to-student ratio and minimal distractions (trans. 34). The CSE recommended a 12:1:1 program for [A STUDENT] for social studies and English and a 12:1:2 program science and math and the related services of and therapy (trans. 35; District Ex. 2 at p. 1). In the 12:1:1 and 12:1:2 classes, the instruction would be tailored to [A STUDENT]’s “functioning level” (trans. 174). denied that these program recommendations were determined prior to the CSE meeting (trans. 56). She stated that she tried to obtain the parent’s input during the meeting (trans. 57). The parent requested a more restrictive setting than a 12:1:1 or 12:1:2 program (trans. 62-64).

The IEP includes program modifications and accommodations of refocusing and redirection; reteaching, repetition and reinforcement of materials; additional time to complete tasks; access to class notes; and directions and questions explained. Testing accommodations include extended time; tests read and directions explained; and the use of a calculator (District Ex. 2 at p. 2). testified that the interventions set out in the IEP would be employed in [A STUDENT]’s self-contained classes (trans. 149-150). The teachers would ensure that [A STUDENT] had additional time to complete tasks and to respond, had information broken down into small “chunks” for him, had material retaught to him, was refocused and redirected, received reminders and checks for understanding, had preferential seating and study guides, received modified assignments and class notes, and utilized graphic organizers and visual aids (trans. 150-152). In addition to the Wilson reading instruction [A STUDENT] would receive, these modifications would address his reading deficits by permitting him to have test questions read and re-read and directions explained to him (trans. 153).

During the 2010-2011 school year, [A STUDENT] would receive Wilson reading instruction every other day on a one-to-one basis from a certified Wilson reading teacher who would work with him on “decoding skills” (trans. 154). This service was not included on the IEP because it was provided by a general education teacher (trans. 154, 189).

testified that [A STUDENT] “did not make meaningful academic progress” in math and science during the 2009-2010 school year and “that [was] why we recommended a more supportive classroom program” for the 2010-2011 school year (trans. 65). She asserted that the CSE did not recommend the 12:1:2 class for English and social studies because [A STUDENT] “was progressing steadily in those classes” if one “look[ed] at not just grades but look[ed] at how well he did throughout the year” (trans. 99). referred specifically to the teacher reports indicating “above and ” in “learning characteristics and functional performance” (trans. 100-102). opined that [A STUDENT] made “meaningful progress” during the 2009-2010 school year because his teachers made “positive comments” about him, he “enjoyed his classes” and he “worked hard in his English and social studies classes” (trans. 155; see also 157-158, 161-162).

[A STUDENT]’s ninth grade third quarter grades in his academic classes were: English, social studies, science, and math, His fourth quarter grades were: English, social studies, science, and math, His final grades for the school year were: English, social studies, ; science, and math, (District Ex. 22).

a with a doctorate degree in

, testified that he was employed by the School District as a in the District’s grade high school building (trans. 223-224). During the 2009-2010 school year, [A STUDENT] was a student in his group (trans. 225).

attended [A STUDENT]’s IEP meeting in April 2010 (trans. 226).

described [A STUDENT] as a “very nice young man” was “really struggled in school” and was “very frustrated” by his class work for the entire 2009-2010 school year (trans. 226-227; see also 292-293). [A STUDENT] had a short attention span and difficulty retaining information and needed redirection even in a small, casual group situation (trans. 227, 230). In March 2010, prepared an evaluation report of [A STUDENT] that was considered at the CSE meeting (trans. 227; District Ex. 7). The report notes that [A STUDENT] had a “broad negative outlook towards school which makes it difficult for him to see the more pleasant moments” (trans. 228; District Ex. 7 at p. 2). Between March and June 2010, [A STUDENT] “seemed a bit happier,” “was engaged more in the group” and “was much more cooperative” (trans. 229).

observed [A STUDENT] in his self-contained 12:1:1 math class in April 2010 (trans. 231-232). In the class, [A STUDENT] “continued to struggle” with a math topic that the class had been working on “for weeks” (trans. 231, 240). [A STUDENT] continued to need one-to-one adult attention to “do the work. He really couldn’t do the work” (trans. 231).

opined that [A STUDENT] failed math in the 12:1:1 class because the pace of instruction was “too fast” for him (trans. 306).

also observed the 12:1:2 math class that was recommended for [A STUDENT] at the CSE meeting (trans. 233). It was a small class with a relaxed atmosphere and “seemed to be going at a very slow pace” (trans. 233-234). opined that this was the “perfect class” for [A STUDENT] because it was for the “typical kids” who needed “help” and a slow pace in math but for whom the “life skills” math class was not appropriate (trans. 234, 272).

opined that the 12:1:1 classes recommended for [A STUDENT] for English and social studies were appropriate for him because he was “stronger” in verbal that visual areas and he had been able to “hand[le] the material” in those classes (trans. 238; see also 261-262). According to his teachers, [A STUDENT] was making progress in those classes (trans. 310-311, 315). In math and science, [A STUDENT] was unable to keep up with the material. As a result, the slower pace of the 12:1:2 classes would be appropriate for him (trans. 238, 316, 321).

recommended adding individual for [A STUDENT] to address his frustration and anger issues and to provide individual support for him (trans. 242-243; District Ex. 5). [A STUDENT] continued to benefit from group because it enabled him to verbalize his frustrations (trans. 251, 257-258).

[a math teacher], a certified special education teacher employed by the School District, testified that she taught self-contained special education math classes and co-teaching math classes at the High School (trans. 325). Ms. [a math teacher] was [A STUDENT]’s math teacher during the 2009-2010 school year in a 12:1:1 self-contained math class. The class included twelve students, one teacher and one teaching assistant (trans. 327). Ms. [a math teacher] reported that [A STUDENT] “struggled,” “moved at a slow pace,” and was an “extremely hard” working and motivated student who had difficulties with basic math facts (trans. 327, 386-387; see also District Ex. 14). Ms. [a math teacher] provided [A STUDENT] with one-to-one instruction, repetition of skills and concepts, visual activities to assist him in understanding concepts, and test-taking strategies (trans. 418-419, 429). When she worked one-on-one with [A STUDENT], she was “reteaching the concepts over and over” and engaged in “repetition” of skills (trans. 449-450).

She “tried modifying the curriculum for him to be successful” and implemented a computer program, called Fast Math, “to help him be a little more successful.” She described Fast Math as an individually-based computer program to help students work on basic math facts involved in addition, subtraction, multiplication and division (trans. 327-328). The program produces a report (District Ex. 15) which sets forth the student’s performance (trans. 328-329). [A STUDENT] started using the program during the week of October 31, 2009 and finished with the program during the week of June 5, 2010. He used the computer program approximately three times per week in the High School’s computer lab (trans. 379-380). Ms. [a math teacher] entered a handwritten notation on the report that [A STUDENT] “improved slow but steady” because “he did make improvement as the year progressed” (trans. 329; District Ex. 15). The report shows that [A STUDENT] started the program with 41 math facts and added 10 math facts “to his long-term memory” during the first few weeks and, by June, according to Ms. [a math teacher], [A STUDENT] was “close to a hundred facts” (trans. 330). By December 12, [A STUDENT] had “mastered” a total of 69 math facts; between December 12 and the end of the school year, he did not master any additional math facts (trans. 382). He was “still working on” 31 math facts (trans. 385).

Ms. [a math teacher] stated that this “improvement” in basic math facts “helped” [A STUDENT] in class because he “just h[ad] to worry about Algebra” and “didn’t have to worry” about math facts “as much” (trans. 331).

In February 2010, Ms. [a math teacher] completed a report about [A STUDENT] in anticipation of his annual review (trans. 332; District Ex. 14). At the time of the report, [A STUDENT]’s grade in math was an ” (trans. 332). Ms. [a math teacher] contended that [A STUDENT] “actually did much better during the third quarter”—his grade “improve[d] significantly” from ” to ” because he “did very well” in one particular topic, factoring (trans. 333; District Ex. 22 [report card]). Ms. [a math teacher] explained that she based grades on tests, quizzes, projects, participation and homework (trans. 333). According to Ms. [a math teacher], even though [A STUDENT] failed tests, he passed math because he passed on his projects, homeworks and participation (trans. 393).

In her February report, Ms. [a math teacher] also indicated that [A STUDENT]’s progress was “inconsistent” because it was “up and down all year,” and his “use of class time” was “below ” because he would become distracted, requiring prompting from Ms. [a math teacher] and the teaching assistant (trans. 334-335). With such reminders to get back on task, [A STUDENT] would return to his work (trans. 336). When confronted with written directions, [A STUDENT] often became confused about “what to do to get started by himself” (trans. 336). Ms. [a math teacher] addressed this difficulty by reviewing the directions with [A STUDENT] He made some improvements in this area during the third quarter because “he was confident in the material and he was happy he was doing a little bit better, so he started to want to be in Math” (trans. 337). However, math concepts remained an area of struggle for [A STUDENT] So Ms. [a math teacher] modified the curriculum for him by “differentiat[ing] the instruction a little bit more” by adding visual and hands-on activities, by making topics “more relevant to real life” and by deleting topics she believed “really w[ere]n’t that important” (trans. 337-338). She “focus[ed] on the basics that he needed to be successful” (trans. 338). [A STUDENT] also had poor skill retention and “really struggled to retain information from topic to topic” (trans. 338). [A STUDENT] showed some improvement during the third quarter when he was able to retain factoring-related topics (trans. 338-339).

[A STUDENT] also had difficulty with listening skills. Ms. [a math teacher] and the teaching assistant had “to remind him several times about what to do” in class. Again, towards the third and fourth quarters, he showed some improvement in this area (trans. 347). Furthermore, Ms. [a math teacher] reported that [A STUDENT] had problems with understanding “complex language” (trans. 350; District Ex. ). Ms. [a math teacher] stated that [A STUDENT] did not understand the vocabulary in the algebra course and that she “really had to modify the language of mathematics in order for [A STUDENT] to understand certain concepts” (trans. 350). Ms. [a math teacher] used “basic language” in order for [A STUDENT] “to be somewhat successful” in the course (trans. 350).

By the end of the 2009-2010 school year, [A STUDENT]’s strength was in basic math facts. Ms. [a math teacher] noticed that [A STUDENT] was not using his calculator as often as he had been during the year. His weakness was in algebra concepts, with which he continued to “really struggle” (trans. 346). Ms. [a math teacher] testified that [A STUDENT] attained meaningful improvement in his math skills during the 2009-2010 school year (trans. 413). She explained that the curriculum became more difficult as the school year progressed, “so the skills that we were working on helped him to stay consistent with his skills” and even though “his grade didn’t improve,” his “progress in the classroom did” improve (trans. 413).^[2] Ms. [a math teacher] noted that “although [[A STUDENT]] was not successful on tests and quizzes, he was successful in other areas such as homework, in-class assignments, projects, other things that [are] tied into a grade” (trans. 430). Ms. [a math teacher] observed that “for meaningful progress for [A STUDENT] [she] looked at the big picture of how he did throughout the whole entire year. . . . He failed most of his tests and quizzes . . . but he displayed other ways—like in class he would be able to explain certain concepts to [her], made [her] understand that he understood what he was doing, but he couldn’t produce it on a test or quiz” (trans. 431).

Ms. [a math teacher] explained that she referred to “life skills math” on her report because, at the time, there was no “official” name for the 12:1:2 class; it is currently referred to as “self-contained II” (trans. 339, 377). Ms. [a math teacher] was familiar with this class because she was teaching it at the time of the report and was able to opine that [A STUDENT] would have been “a perfect candidate for that setting” (trans. 339). Students in the class had math abilities similar to [A STUDENT]’s, and the curriculum consisted of pre-algebra and algebra, permitting the student to “work on math applications that have to do with real life” in a supportive setting with multi-sensory teaching methods (trans. 340-341). Ms. [a math teacher] explained that the self-contained II class “moves at a much slower pace, so there’s the ability for the teacher if a student is struggling to take a step back and actually help that student. Instead of having to move forward at such a fast pace, they can sit down, work with the student individually and fix what ever they need help with” (trans. 341). This class is different from the 12:1:1 class because it includes more support for the students and because it does not have to “keep moving with the curriculum” and the teacher can “slow down” the presentation of material (trans. 341432). In the self-contained II class, Ms. [a math teacher] and the two teaching assistants were able to provide more individualized instruction and attention to the students (trans. 348-349). With the two teaching assistants in classroom, [A STUDENT] would receive additional support when he needed attention and explanations of instructions or material (trans. 349). The contained II class would address [A STUDENT]’s weaknesses with complex language by building up his pre-algebra skills, which did not involve complex language (trans. 351, 360-361).

Ms. [a math teacher] explained that the addition of one teaching assistant was not the only difference between the 12:1:1 and 12:1:2 classes. In the 12:1:1 class, instruction and curriculum are presented in a manner to enable students to pass the Regents exam. This constraint does not exist for the 12:1:2 class, and teachers can take the instructional time necessary to address the students’ areas of need (trans. 372-373). With the “flexible environment” of the class, “ if a student . . . is struggling, the teacher doesn’t have to move forward with a different topic . . . . He or she could stop, reassess the situation and try teaching it in a different method. There’s an opportunity to do that in” the 12:1:2 class (trans. 394).

[A STUDENT]’s scores on the math portion of the Woodcock-Johnson were similar to such scores of the other students in the 12:1:2 class. As a result, according to Ms. [a math teacher], this class would provide [A STUDENT] with the opportunity to work on and improve in his areas of need (trans. 356). Ms. [a math teacher] opined that the math goals set forth on the April 21 IEP were appropriate for [A STUDENT] and stated that these goals would be addressed in the 12:1:2 class (trans. 357-359).

[an English teacher], a certified special and general education English teacher, testified that he was employed by the School District as a high school English teacher and a resource room teacher (trans. 640). During the 2009-2010 school year, [A STUDENT] was a student in his 12:1:1 self-contained grade 9 English class (trans. 642). Mr. [an English teacher] prepared a report about [A STUDENT] in January 2010 (trans. 532; District Ex. 12). Mr. [an English teacher] summarized his report by stating that [A STUDENT] always attended class and completed his homework. According to Mr. [an English teacher], [A STUDENT]’s “rate of progress” was “average” as compared with general education students because he had a positive attitude towards learning and with his peers, wanted to succeed in class and always tried to learn “to the best of his ability,” was consistent, and completed his work (trans. 643-644). [A STUDENT] did need clarification, which Mr. [an English teacher] provided, when faced with written directions (trans. 645-646). In addition, Mr. [an English teacher] would refocus [A STUDENT] to task when his questions got him off track, especially during writing assignments (trans. 662).

Mr. [an English teacher] was preparing the students in the class to take the English Regents examination in grade (trans. 648). [A STUDENT] needed clarification from Mr. [an English teacher] on the concepts involved in the Regents curriculum (trans. 649). [A STUDENT] had “good retention skills because he remembered things in sequence” (trans. 650). For example, he was able to remember the facts and sequence of the action in “Romeo and Juliet” (trans. 650).

[A STUDENT] was “extremely polite” to adults and peers and was aware of social cues (trans. 650). According to Mr. [an English teacher], [A STUDENT] experienced low self-esteem towards the end of the school year (trans. 651-653). He “wasn’t doing well in science and math. He was so down on himself because he had difficulty mastering those concepts” (trans. 651). [A STUDENT] came to Mr. [an English teacher] for extra help for science and math. Mr. [an English teacher] and the student teacher, who was a certified math teacher, worked with [A STUDENT] in these areas during the last fifteen weeks of the school year (trans. 665).

Grades in Mr. [an English teacher]’s class were based upon (and worth 20% each) class participation, quizzes, tests, writing projects and homework (trans. 654-655). [A STUDENT]’s final grade included the four quarter grades and the grades on the midterm and final examinations (trans. 655). [A STUDENT] did “pretty well” on quizzes and “average” on tests (trans. 656-657). His participation was excellent throughout the school year (trans. 657-658). [A STUDENT] was “always able” to take notes, ask and answer questions and express his feelings (trans. 658-659). When tasks became complex, he required clarification from Mr. [an English teacher] (trans. 659). Mr. [an English teacher] estimated, based upon [A STUDENT]’s performance in class, that [A STUDENT] was reading on a o grade level (trans. 695). Mr. [an English teacher] stated that [A STUDENT]’s Woodcock-Johnson passage comprehension score of below the percentile was a grade equivalent of through grade level. He explained the discrepancy between the Woodcock-Johnson score and [A STUDENT]’s classroom performance by stating the Woodcock-Johnson tests both literal comprehension and inferential reasoning, but in the classroom setting, material is presented in a “control[ed]” manner and students “know what is coming next” (trans. 694-696). As a result, “there’s no filling in the blanks because they’re having somebody instruct them on what it means . . . . That’s what we do in special ed” (trans. 696).

Mr. [an English teacher] opined [A STUDENT] made “meaningful progress” in the grade self-contained 12:1:1 because he “was able to demonstrate advanced knowledge and techniques” during the entire school year—he was able to understand plot, theme, the author’s message and purpose, and the context of the literary work (trans. 669). Mr. [an English teacher] explained that the average of [A STUDENT]’s scores on the midterm and final exams showed that he “was only operating on a deficit of percent that he didn’t retain” and “that’s pretty darn good for a special ed kid” (trans. 671). Mr. [an English teacher] also opined that the grade self-contained 12:1:1 class would be appropriate for [A STUDENT] because “he was successful in that model in the grade” and therefore it would not be appropriate for him to be in a class that proceeded at a slower pace or had a different curriculum (trans. 667).

a certified school guidance counselor employed by the School District, testified that she was [A STUDENT]’s during the 2009-2010 school year and attended his April CSE meeting (trans. 455). During the school year, she met with [A STUDENT] about school clubs, career interests and his current and future classes (trans. 456).

met with the parent, and in February 2010 because [A STUDENT] was having trouble in math (trans. 478-479). At the meeting, school personnel explained the 12:1:2 program to the parent and indicated that this class might be recommended for [A STUDENT] for math and science for the 2010-2011 school year (trans. 458). Later in the 2009-2010 school year, had another discussion with the parent about the 12:1:2 class. She explained to the parent that such a class was recommended for [A STUDENT] only for math and science and not for English and social studies (trans. 459).

contended that the District had a transition plan for [A STUDENT] “outlined” in his “level one assessment documentation” (trans. 461; District Ex. 17).

prepared these documents in November 2009 by sitting down with [A STUDENT] and having a conversation with him (trans. 462). The parents completed the parents’ questionnaire, and [A STUDENT] completed an occupation search in one of his classes in the spring of 2009 (trans. 463-464). A “level one transition plan” was also prepared in spring 2009, when [A STUDENT] attended middle school (trans. 464).

explained that [A STUDENT]’s post-secondary goal was to attend the local community college (trans. 465). [A STUDENT] indicated that he would like to work with animals and was interested in a vocational training program in animal care (trans. 466-467). Ms.

told him about BOCES programs, including one program involving animal care (trans. 470). If [A STUDENT] had remained at the High School for the 2010-2011 school year, he “would have continued conversation with his guidance counselor about his areas of interest” and “a placement could possibly be made for him if his interest was in the BOCES program and animal care” (trans. 471).

[a social studies teacher], a certified special education and social studies teacher, testified that he was employed by the School District as a special education teacher of selfcontained tenth, eleventh and twelfth grade social studies classes and of a math/science support class (trans. 493). This school year, there are students in the tenth grade social studies class with Mr. [a social studies teacher] and a teaching assistant (trans. 494). The class can include as many as twelve students.

Mr. [a social studies teacher] stated that the math/science support class is “a new program this year that is designed to . . . support the students who are having more difficulty in math and science” in which “the support teachers work closely with the math and science teachers” (trans. 494). The support class meets every other day (trans. 503). In the support class, students engage in “more activity-based work, maybe drawing pictures, some study skills work, how to take a test, like index cards and how to take multiple choice question exams. Really just to reinforce what they learn in the classroom” (trans. 494-495).

Mr. [a social studies teacher] works with the classroom teachers to “find out what [he can] do for [a] student” such as extra credit work if the student is in danger of failing and material the student should focus on (trans. 495-496). The math/science support class includes students in tenth and eleventh grade math classes and tenth and eleventh grade science classes (trans. 496-497 525). One class includes students, and another class includes students (trans. 526).

In the tenth grade 12:1:1 social studies class, Mr. [a social studies teacher] uses graphic organizers, particularly to “break down” the material in the social studies textbook and for writing essays (trans. 498-500). He also works with students on highlighting material and preparing for quizzes (trans. 499). Mr. [a social studies teacher] is also available to provide students with extra help after school (trans. 500-501). He also works with the social studies/English support class teacher to create lessons (trans. 502). Mr. [a social studies teacher] opined that [A STUDENT] would be “an appropriate student” in this class because his scores as set forth on his IEP, particularly on the Woodcock-Johnson reading and writing measures, were similar to the scores of students in the class (trans. 508-509). [A STUDENT] would be the functioning student in the class (trans. 521). Mr. [a social studies teacher] explained how he would address [A STUDENT]’s IEP goals by reading passages for comprehension (by answering and writing comprehension questions), using maps, regularly preparing essays, using index cards to learn and reinforce vocabulary, working on editing and clarity of writing, and working on clarity of oral language through appropriate class participation and maintaining a respectful classroom setting to foster appropriate peer and adult interactions (trans. 509-517, 520).

[an English teacher], a certified general education English/language arts (grades

7 through 12) teacher and a certified special education teacher, testified that she was employed by the School District as a high school English teacher who currently teaches ninth and eleventh grade self-contained 12:1:1 English classes and an English/social studies tenth and eleventh grade support class (trans. 538). In a support class, she reteaches material learned in the classroom setting, preteaches and reviews material, and works on skills students “need to succeed in the classroom setting” (trans. 537, 539). She communicates with classroom teachers and individualizes instruction for the students because “it’s two different grade levels and at times they have different needs in various subjects” (trans. 540). As a result, Ms. [an English teacher] creates multiple lessons and groups within the class will be working on different activities (trans. 541).

In June 2010, Ms. [an English teacher] attended a meeting with the parent and explained the curriculum of her self-contained tenth grade English class (trans. 541-542). Ms. [an English teacher] described the class as a Regents level course in which material was broken down into “more steps” and presented at a slower pace and using lower reading levels; reading, writing and speaking skills were addressed; and students’ “needs [were] met on a more individualized level” (trans. 542-546). At the meeting, a social studies teacher discussed his self-contained class (trans. 546). In both classes, twelve was the maximum number of students (trans. 547).

[A STUDENT] was on Ms. [an English teacher]’s class roster in September 2010 (trans. 548). At the time of her testimony, there were students in her 12:1:1 English class (trans. 585). Based upon her review of [A STUDENT]’s IEP, Ms. [an English teacher] opined that [A STUDENT] would be “appropriate” for her class because his Woodcock-Johnson reading-related scores “fall within the range of functioning levels of students” in her class, who range from the to the percentile in such areas, with [A STUDENT] “at the end” (trans. 549-550, 569). These students have reading levels ranging “generally” from grade through grade (trans. 580-582). The students would read the same materials, and Ms. [an English teacher] would “differentiate” her instruction based upon the “student’s ability levels” (trans. 589-590). In addition, according to Mr. [an English teacher]’s report, [A STUDENT] is hard-working, prepared for class and organized. Ms. [an English teacher] stated that she would be able to “support” his difficulties with following oral and written directions (trans. 552). As a result, she stated that [A STUDENT] was “perfect” for her class (trans. 552-553).

Ms. [an English teacher] also opined that [A STUDENT] would not be appropriately placed in the 12:1:2 self-contained English class because in the 12:1:1 class “he’s offered role models, students that are functioning maybe a little bit higher than him but within range . . . he will be able to rise to the occasion” (trans. 553-554).

The 12:1:1 class includes supports for students in the form of the teaching assistant who helps focus the students through prompting, facilitating appropriate behavior in class, and implementing testing modifications (trans. 554-556). Ms. [an English teacher] also supports students through small group instruction, use of the Smart board (which permits the students to move around the room) and “carousel” activities (trans. 556). She explained how she would address [A STUDENT]’s IEP goals. She incorporates factual material (such as newspapers) into lessons to work on reading comprehension, engages in writing exercises focusing on logical and sequential multi-paragraph essays, conducts class discussions on readings focusing on comprehension and sequencing, and fosters appropriate communication and interaction within the classroom (trans. 557-561).

Ms. [an English teacher] explained that a support class is different from a resource room because the support class focuses specifically on course subject matter, in her case English and social studies, and preteaching, reteaching and reviewing material in those subjects. A resource room focuses on the subject matter of all of the students’ content area classes and addresses organizational skills (trans. 574-576).

, who was employed by the School District as the high school principal from 2006 through June 2010 and then as assistant superintendent for student support services, testified that he had a doctorate in special education and was certified as a teacher of the speech and hearing handicapped, a special education teacher and a school-based and school district administrator (trans. 197-200). became familiar with [A STUDENT] in May, 2010 when contacted him and informed him that he might receive a telephone call from the parent (trans. 202-203). In August, received an impartial hearing request from the parents, which was withdrawn, and then received another hearing request (trans. 204).

On August 31, chaired a CSE meeting for [A STUDENT] in order to determine whether the [a nonpublic school] School “was a similar school” for transportation purposes (trans. 205; District Ex. 1). At the meeting, stated that he would like to “table” the determination in order to visit the School to gather information to address this issue (trans. 207, 592, 610). The parent and her advocate requested that a determination be made at the meeting. The meeting concluded with a determination that the School was not “similar” based upon information presented by the parent and her advocate; indicated that if he came to a different conclusion after visiting the School, he would reconvene the meeting (trans. 610).

visited the School on September 16, met with the “headmistress,” and toured the School (trans. 208-214). He learned that the School included students, of whom were classified as eligible to receive special education (trans. 593). Classes included no more than twelve to fifteen students (trans. 596). However, students did not receive “special education services by a special education teacher” unless they were in a resource room program, and the only opportunities for mainstreaming were in the context of the after school sports program (trans. 597, 602-603). As a result of his visit, concluded that [a nonpublic school] would not provide [A STUDENT] with a program “similar” to the School District’s recommended program and that there was no basis to change the recommendation made at the August 31 meeting (trans. 214-215). The Parents’ Case The parent testified that [A STUDENT] struggled in first grade, was classified as s and placed in a self-contained special education class (trans. 789). [A STUDENT] continued in self-contained special education classes in the School District throughout his elementary school years (trans. 790). The parent attended CSE meetings for [A STUDENT] throughout his elementary and secondary school years (trans. 793-795).

[A STUDENT] was provided with Wilson reading instruction in grade. When [A STUDENT] was entering grade at the middle school, School District personnel informed her that [A STUDENT] would continue with Wilson reading instruction; however, [A STUDENT] did not receive such instruction at the middle school (trans. 792). [A STUDENT] spent grade at a private religious school and returned to the School District for h grade (trans. 793). [A STUDENT] received reading instruction through a “Read 180” program (trans. 794). [A STUDENT] was offered a reading comprehension program for grade (trans. 798).

During [A STUDENT]’s grade year, the 2009-2010 school year, the parent had concerns about [A STUDENT]’s academic, social and emotional functioning and had noticed that he “was really struggling” in math and science (trans. 799). She had been working with [A STUDENT] on his homework and found that he was unable to do his algebra homework because he did not understand the “basics” (trans. 801). She was “reteaching” [A STUDENT] the material that had been presented in class, and she was working with him up to two hours per night (trans. 801-802). In November or December 2009, the parent contacted [A STUDENT]’s case manager, , who was also his science teacher, about these concerns (trans. 799800). She also contacted in December (trans. 802).

The parent met with and the guidance counselor in late December or early January. They discussed “what we could do to help [[A STUDENT]], especially with the math and the science” (trans. 803). The parent also raised [A STUDENT]’s problems with reading and the lack of Wilson reading instruction at the high school. informed her that Wilson instruction was, in fact, available at the high school (trans. 803). The parent expressed her dismay that she had been informed that there was no such instruction at the high school and that [A STUDENT] could have had such instruction for the past two school years but was deprived of it (trans. 803-804). then arranged for [A STUDENT] to be reevaluated for Wilson instruction and provided with it. [A STUDENT] resumed Wilson reading instruction in March 2010 (trans. 804, 842).

In early 2010, the parent began to consider placements for [A STUDENT] for the 20102011 school year and visited the [a nonpublic school] School in January (trans. 805, 1086). [A STUDENT] was accepted at the School in late January (trans. 1087-1088; District Ex. 27). The parent completed School District paperwork to request bus transportation to the School (trans. 806).

arranged for a subsequent meeting with the parent, and Ms. [a math teacher] (trans. 807). Prior to the meeting, the parent had had telephone conversations with Ms. [a math teacher] about [A STUDENT]’s difficulties in the math class and with the math homework and his lack of basic math skills (trans. 807, 837-838, 841). At the meeting, the parent expressed her concerns about [A STUDENT]’s inability to grasp “the work” in math and asked that the homework be modified for him (trans. 808). Ms. [a math teacher] responded that she was unable to assist [A STUDENT] on a one-to-one basis because there were other students in the class and suggested that the parent hire a math tutor (trans. 808-809).

The parent attended another “team meeting” in March to discuss an “RCT program” at the School District (trans. 812). At the meeting, stated that [A STUDENT] was “too high-functioning” to be placed in the program for all his classes and that he “was just recommended for it” only for math and science (trans. 813). The parent testified that, based upon the explanation of the program at the meeting, the program was the same as the program [A STUDENT] had attended for years. The only change was the addition of a teaching assistant in the math and science classes (trans. 814). According to the parent, stated that if [A STUDENT] “could just get through one more year” in the high school, “then he can just go to BOCES for and ” grades (trans. 820).

The parent believed that such a change (adding a teaching assistant to two classes) would not have made a difference for [A STUDENT]—he “was not making any progress year after year” in the School District, and his test scores “were getting lower and lower” (trans. 814). As a result, the parent decided to move [A STUDENT] to an out-of-district placement for his grade year (trans. 814-815).

The parent attended [A STUDENT]’s CSE meeting on April 21 (trans. 818-819). At the meeting, School District personnel stated that [A STUDENT] was “doing great” in math and science (trans. 819). The parent did not believe that this was an accurate portrayal of [A STUDENT]’s learning in these two classes (trans. 820). In particular, she asked how [A STUDENT] could have received a grade of “ ” on his report card for math when he “basically did two hours of homework every night struggling and failed every test” (trans. 857). The parent denied that [A STUDENT] was “doing better” in math and science in the third marking period because his tests, quizzes and homework had not shown any improvement (trans. 858). Even if [A STUDENT]’s report card grades had included a class participation component, this would not explain any “improvement” in his grades because Ms. [a math teacher] had informed the parent that [A STUDENT] was not participating in class (trans. 859). The parent reported that Ms. [a math teacher] told her that [A STUDENT], throughout the school year, was “really having a hard time engaging and participating in the classroom” (trans. 859).

At the CSE meeting, the parent asked to observe the 12:1:2 program and was informed by School District personnel that she was not permitted to observe the classes “in action” (trans. 823-824).

After the CSE meeting, the parent wrote to and explained her disagreement with the CSE’s recommendations (Parent’s Ex. I). The parent also informed that she planned to place a deposit at the [a nonpublic school] School to hold a place for [A STUDENT] in the event that the School District did not provide him with a placement she believed would be appropriate.

On May 28, the parent met with some of the grade teachers about the grade 12:1:1 and 12:1:2 programs (trans. 824). The parent stated that the teachers did not explain their teaching methodologies or classroom techniques and that (a special education supervisor) treated her disrespectfully, was critical of her questions, and cut off the teachers’ answers to her (trans. 825, 863). The parent set forth her objections to the recommended program in a letter to and dated June 3 (Parent’s Ex. K).

The parent stated that towards the end of the 2009-2010 school year, [A STUDENT] wrote a description of his feelings about attending the School District’s high school (trans. 829; Parent’s Ex. E). She explained that [A STUDENT] drafted this document and gave it to her because “he was really, really struggling at this point, just frustrated” (trans. 830).

The parent testified that she removed [A STUDENT] from the School District’s program for grade because “he was not making any progress year after year” and “his tests were getting lower and lower” (trans. 814). The parent pointed to [A STUDENT]’s scores on the School District’s March 2010 educational evaluation of [A STUDENT] and a science test that included writing that was not [A STUDENT]’s (trans. 815, 817-818; Parent’s Exs. C, F). The parent identified Parent’s Ex. F as a grade science test with [A STUDENT]’s name on it and dated April 9, 2010 (trans. 815, 852). [A STUDENT] was required to take this test in order not to receive an “incomplete” in the third marking period (trans. 853, 855). The grade on the test is “ ” (trans. 817). The parent did not recognize all the handwriting on the test, did not believe that [A STUDENT] had ever scored a “ ” on a science test and did not receive this test until after the end of the school year (trans. 817-818, 854).

The parent signed an enrollment agreement with the [a nonpublic school] School on May 4, 2010, and paid a non-refundable deposit of (trans. 865-867; District Ex. 28). The parent signed the agreement only in order to “hold his place” at the School (trans. 866). Tuition at the School for the 2010-2011 school year is $ , which the parents have paid (trans. 828).

a certified special education teacher, testified that she was employed by the [a nonpublic school] School as the Director of Special Education (trans. 760). The School is located in and is for students who experience learning disabilities and students who are “reluctant learners” (trans. 761). There are students enrolled in the School (trans. 776). Students at the School do not take Regents exams; the School administers the RCTs (trans. 1062). Most of the students have IEPs; all of the students “need small nurturing” and “highly structured environments” and come to the School to “fill gaps in their educational background” (trans. 761). According to School personnel “tailor our programs to each students,” treat each student as an individual and recognize that “not every educational approach works for every student” (trans. 761-762). The School’s principal, , is a certified special education teacher and a licensed school district administrator (trans. 764-765).

When a new student is accepted at the School, personnel conduct a team meeting to design an initial program for the student based upon the student’s documentary record. The program is adjusted as and the rest of the teaching staff observe and work with the student in the classroom in order to determine “what that student really needs individually” and his learning styles (trans. 762, 773). “keep[s] track” of the student’s test scores to determine whether he is progressing and of the student’s homework (trans. 773). stated that the School provides students with a nurturing and structured environment. Bullying and teasing are not tolerated, and students meet in weekly “Self-Advocacy and Mentoring” groups and discuss learning disabilities, how students learn “differently,” how to advocate for oneself and how to be empathetic and be a friend (trans. 763-764). These groups are lead by teachers trained to be “mentors” by and the (trans. 1021-1023).

[A STUDENT] has attended the School since September 2010 (trans. 765). He had difficulties in math, therefore he was referred to for extra tutoring for three 40 minute periods per week on a one-to-one basis. She provides [A STUDENT] with instruction in basic “everyday” math skills and using a calculator (trans. 765-766). In September, [A STUDENT]’s math skills were “ ;” he had difficulties with the basic operations of addition, subtraction, multiplication and division and with using a calculator to solve even basic addition problems (trans. 766, 1078). gave him a “baseline” assessment and found that he was hitting random keys on the calculator and was not checking his work (trans. 778-779).

communicates daily with [A STUDENT]’s math teacher who is teaching pre-algebra. In order for [A STUDENT] to make progress in the pre-algebra class, he needed to work on the basic math skills (trans. 767).

[A STUDENT] is also attending science, English, literature, social studies, remedial reading (twice per week with a certified Wilson reading teacher), computers and health classes (trans. 768, 780). Each of the “core” classes includes no more than students and one teacher (trans. 782-783, 1057). provides oversight to [A STUDENT]’s teachers in order to provide them with special education strategies and techniques to work with learning disabled students (trans. 768-769, 1043-1044). provided the following special educational techniques to [A STUDENT]’s teachers. She observed that [A STUDENT] needed to sit in the front of the classroom because he is “highly distractible;” at the School, he is seated at the front of every classroom (trans. 770). His teachers have reported to her that seating [A STUDENT] in the front of the class is an effective intervention for him (trans. 786). He also needs to be “redirected consistently” and have information and tasks both “chunked” into “categories” and broken down into “clear language” (trans. 770-771). He also needs pictures and other visual supports to assist him to understand concepts (trans. 771). His teachers provide such visual supports and have found that such supports assist him in understanding abstract concepts. [A STUDENT] needs copies of class notes, which are provided to him by his teachers (trans. 770). The teachers use graphic organizers with [A STUDENT] (trans. 772). None of [A STUDENT]’s classroom teachers are certified as special educators.

Teachers provide [A STUDENT] with additional time to complete tasks and engage in task analysis for him—breaking down tasks into smaller, more manageable steps (trans. 771). He also needs, and the teachers provide, refocusing and redirection (trans. 772). described [A STUDENT] as a “very social, inquisitive, cooperative, sweet, young man” who was “a pleasure to work with” (trans. 776). She explained that “a student like [A STUDENT] can very easily slip through the cracks because he’s so cooperative” and “accommodating. It’s very easy for him to just get lost in the mix . . . because he doesn’t cause any problems. He can just sit in the classroom and just kind of blend in” (trans. 777). This is a problem for [A STUDENT] because “he really needs a lot of assistance” from his teachers—“sometimes when you’re too good, it works to your disadvantage” (trans. 777-778).

[A STUDENT]’s weaknesses include poor retentio[a student] As a result, he needs “a lot of repetition” (trans. 778). His math skills are “very poor,” and believed that “with weeks and weeks of working with him,” he is retaining the material—“[h]e’s finally retaining basic math skills” that she has taught and reinforced with him, including addition, subtraction, multiplication and using a calculator (trans. 778). Once he has “mastered” the basic math skills, planned to work with him on basic pre-algebra skills (trans. 784).

continues to meet with [A STUDENT]’s teachers both informally several times per week as she observes each class and for twice-monthly team meetings (trans. 774). The team meetings include , classroom teachers, and, on occasion,

(trans. 774-775). [A STUDENT]’s reading teacher has reported in the team meetings that [A STUDENT] is below grade level in reading and has made progress in reading in her class (trans. 786).

Grades at the School are based upon tests (approximately 70%), homework (approximately 10%) and the remainder class participation and behavior (trans. 1061-1062). According to , [A STUDENT] has been “working hard” and “improving” in his classes (trans. 1062). In the first quarter, [A STUDENT] attained the following grades: English,

; Algebra, World History, ; biology, physical education, art, computers, health, writing, and reading, P (Parent’s Ex. M).^[3] In January 2011, [A STUDENT] passed the math RCT (trans. 1075). He was permitted to use a calculator for this exam and was able to use it correctly (trans. 1079). opined that the School was an appropriate education setting for [A STUDENT] (trans. 788).

[A STUDENT] testified that he attended grade at the [a nonpublic school] School and that he “like[d]” the School, was “having a decent year” and was passing all his classes (trans. 877). Last year, when he attended High School for grade, he found that his teachers were “really mean” and he “hated going to school every day” (trans. 878). In particular, he did not enjoy his English class. Even though Mr. [an English teacher] was “really nice,” the teaching assistant was “not that friendly” because she would “hover” over [A STUDENT] and make him “nervous.” [A STUDENT] did not like the other students in the class (trans. 879). The students were “nasty” and “goof[ed] around” in class (trans. 882). His social studies teacher, Ms. [a social studies teacher] was “nice” but did not help him learn (trans. 883884). He did not like the teaching assistant in science, who was “always . . . just yelling” and became “impatient” when he “struggled” (trans. 885). In his math class, Ms. [a math teacher] and the teaching assistant were “impatient” with him, made him “nervous” and became “annoyed” and “yelled” at him when he did not understand the material (trans. 888-889, 945947, 965-966, 999-1000). [A STUDENT] stated that he always did his homework and came to class prepared.

[A STUDENT] indicated that some of the handwriting on his science test (Parent’s Ex. F) was his but that some of it was not (trans. 893-904). He recalled that he had not completed the test because it was very difficult (trans. 960). [A STUDENT] acknowledged that in May 2010, he wrote a statement he labeled “ school districk” (sic). He described five things he found wrong with the District (trans. 904-905; Parent’s Ex. E).

[A STUDENT] described how he feels more comfortable at [a nonpublic school] and how the teachers are understanding of and responsive to his learning needs (trans. 917-919). He still finds science and math difficult but continues to work on both classes. He has made friends and joined clubs at the School (trans. 934-936). The School District’s Rebuttal Case

Ms. [a math teacher] was recalled as a witness and testified that [A STUDENT] used a calculator in the grade math class to complete basic calculations of addition, subtraction, multiplication and division (trans. 1133). [A STUDENT] was able to operate the calculator properly; Ms. [a math teacher] did not observe him losing his skills with the calculator during the school year or after vacations (trans. 1134). Ms. [a math teacher] worked on improving [A STUDENT]’s computation skills through the “Fast Math” computer program (trans. 1135-1136). This program helps build math skills through practice of those skills. Working with the program during his grade year, [A STUDENT] started with 41 addition facts, mastered a total of 69 addition facts (including the initial 41 facts) and was working on 31 more addition facts, referred to as focus facts (trans. 1136-1137). Ms. [a math teacher] explained that [A STUDENT] knew the focus facts; he just did not respond with these answers quickly enough to demonstrate that they were “stored to his long-term memory” (trans. 1171). He had not moved onto subtraction (trans. 1137).

The final exam at the end of grade was composed of Regents exam questions relating to algebra topics covered in the class (trans. 1139). Ms. [a math teacher] graded the test as the Regents exam would have been graded. [A STUDENT] scored a on the test. Ms. [a math teacher] explained that the math RCT exam is a “simplified version of the algebra Regents” which “takes out any abstract concepts” (trans. 1140). Ms. [a math teacher] opined, based on her experiences as a high school math teacher, that a student who had scored a on such a final exam would “usually do a little better” on and pass the RCT exam (trans. 1140-1141).

Ms. [a math teacher] testified that she had explained to the parent the peer tutoring program at the High School in which students work with honor society students; she denied that she had “recommend[ed]” an “outside tutor” (trans. 1141). She also testified that she worked with [A STUDENT] one-to-one “frequently” (trans. 1142). Ms. [a math teacher] explained that she understood that [A STUDENT] was frustrated in her class because “he wasn’t doing well.” She “was working with him to help him in any way [she] could” and “was never impatient because [she] was trying [her] best to help him be successful in class” nor did she “get annoyed” with or “yell” at him for not understanding the material (trans. 1144, 1147). [A STUDENT] “never looked distressed” when Ms. [a math teacher] spoke with him (trans. 1167). Ms. [a math teacher] denied that the teaching assistant “hovered” over [A STUDENT]; instead, she circulated around the room assisting students as needed (trans. 1165-1166). The teaching assistant did not become “annoyed” with the students. During the school year, [A STUDENT] made “slow progress” (trans. 1153).

was recalled as a witness and testified that she had observed [A STUDENT] in class during his grade year in the course of her duties as an administrator as she conducted observations of teachers, students and programs (trans. 1176-1177). She did not observe [A STUDENT] to be highly distractible or to need to sit in the front of the room (trans. 1178). Furthermore, in classes of seven or eight students with a teacher and a teaching assistant and a structured lesson plan, [A STUDENT] did not need frequent redirection or refocusing (trans. 1181). He was “engaged” in the lessons (trans. 1182, 1197). The teaching assistants provided assistance to him when he needed it (trans. 1195-1196). opined that the teacher to student ratio at [a nonpublic school] was not appropriate for [A STUDENT] because, with only one adult in the classroom, it did not provide him with the level of support that he needed (trans. 1184-1185).

At the March 2010 team meeting, school personnel explained in detail to the parent how the curriculum and pacing of the self-contained “2” classes differed from the self-contained “1” classes (trans. 1186-1187). had also explained this information to the parent during a telephone call in February (trans. 1188). denied that she had ever stated that [A STUDENT] would just be moved from grade to grade without regard to his performance (trans. 1191-1192, 1214-1215).

Findings of Fact and Decision

A board of education may be required to pay for educational services obtained for a student by the student's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

A. The Appropriateness of the School District’s Program for [A STUDENT]

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education;

(2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended special educational program must be reasonably calculated to allow the student to receive an educational benefit and be the least restrictive environment for the student. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 (quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)). A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instructio[a student]” 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 (2d Cir. 1998); see also 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)).

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The IEP prepared for [A STUDENT] set forth his testing results, described in detail his current levels of performance and identified his special education needs. The testimony of the School District witnesses explained with specificity how the IEP goals related to [A STUDENT]’s learning needs. The next step is to examine the IEP to determine whether it sets forth a program that sufficiently addressed [A STUDENT]’s identified special educational needs.

[A STUDENT]—a motivated and hard-working student—demonstrates academic delays and difficulties in all academic areas, but most specifically in math and reading. He also has language needs in the areas of comprehension and sequencing of information and social and emotional needs. The School District’s program for [A STUDENT]’s grade year included the following special education services and supports. The IEP mandated that [A STUDENT] attend a general education public high school with self-contained special education classes for English, social studies, science and math and receive the related services of therapy and . The IEP set forth the classroom and curricular modifications of refocusing and redirection; reteaching, repetition and reinforcement of material; additional time to complete tasks; and directions and questions explained. The School District witnesses clearly explained how each of these special education services and supports would have addressed [A STUDENT]’s special education needs and should have, based upon their experience as educators and with teaching [A STUDENT], resulted in educational progress for [A STUDENT]

[A STUDENT]’s academic delays would have been addressed in the 12:1:1 classes for English and social studies and the 12:1:2 classes for math and science. Both classes would have provided [A STUDENT] the support, the pacing of instruction and the curricular modifications he needed to lear[a student] In the English and social studies 12:1:1 classes, [A STUDENT] would have benefitted from the attention and support of the special education teacher and the teaching assistant. With this level of adult support, [A STUDENT] would have received prompting and redirection when he was losing focus and checks that he was following along with class instruction and comprehending material. [A STUDENT] responded positively to these interventions in such English and social studies classes in ninth grade, participating in learning and making slow progress in these subject areas; it is reasonable to conclude that he would have continued to respond to such interventions in tenth grade.

Furthermore, [A STUDENT]’s standardized test scores were similar to those of the other students in the grade 12:1:1 English and social studies classes. He would have benefitted from the teaching techniques described by the grade English teacher, Ms. [an English teacher], such as differentiated instruction and having material “broken down” into “more steps,” presented at a slow pace, and provided on a lower reading level. In this class, Ms. [an English teacher] also worked on comprehension, sequencing of information and language difficulties— all areas of instruction which would address [A STUDENT]’s difficulties with understanding and retaining content-area material. In the English/social studies support class, [A STUDENT]’s comprehension and retention difficulties would have been addressed through reteaching and review of material taught in the classroom through individualized instruction based upon his needs and particular difficulties with the material presented in the classroom at the time.

In the 12:1:2 classes for math and science, [A STUDENT]’s academic delays and comprehension difficulties would have been further targeted and addressed by the special education teacher and the two teaching assistants. As explained by and Ms. [a math teacher], the 12:1:2 classes provide extra support to students and a slow-paced curriculum with a multi-modal instruction approach that can be adapted to fill “gaps” in students’ learning. The special education teacher in each of these classes individualizes instruction, tailoring that instruction to address each student’s deficiencies. [A STUDENT] has demonstrated that he has “gaps” in his math skills and in understanding math concepts as well as with retaining such skills and concepts. The slower-paced, multi-modal and individualized instruction in the 12:1:2 class would address these difficulties, allowing [A STUDENT] to comprehend and retain material and fill in “gaps” with his math calculation skills and in his understanding of math concepts. In this small class, the special education teacher (with the assistance of the two teaching assistants) would consistently check that [A STUDENT] was focused on learning and understanding the material presented to him. In addition, the three adults in the classroom provided one-to-one supervision, prompting and redirection to students as they needed it.

As credibly explained by the School District witnesses, particularly and Ms. [a math teacher], the 12:1:2 classes were recommended for [A STUDENT] for science and math because [A STUDENT]’s teachers had observed the particular difficulties he was having in these subject areas in the 12:1:1 classes with comprehension and retention of content-area material, the pacing at which material was presented and the “gaps” he had in his basic math skills. The 12:1:2 classes would address these difficulties—and not just by adding, as the parent contends, one more adult to the classroom. The pacing, the opportunity for a more individualized instructional approach, the time and adult support for redirection, reteaching and repetition of material, and the chance to fill “gaps” in [A STUDENT]’s math skills are all interventions that were “reasonably calculated” to address [A STUDENT]’s special educational needs and to result in educational progress for him.

Much has been made as to whether the “Fast Math” computer program resulted in [A STUDENT] making progress with his “math facts.” He did end the school year knowing some more addition facts than he knew at the beginning of the school year, but it cannot be concluded that he made appreciable progress in learning “math facts” and math operations through the “Fast Math” program. However, Ms. [a math teacher] testified that working with “Fast Math” did assist [A STUDENT] during algebra class because he could focus on the algebra and not be as wrapped up in not knowing “math facts.” In addition, Ms. [a math teacher] testified that [A STUDENT] made some slow progress in math during ninth grade. In any event, [A STUDENT]’s continued difficulties with basic math facts and operations would be addressed in the 12:1:2 class, with its slower pace and individualized instruction, and in the math/science support classes. As explained by Mr. [a social studies teacher], in the math/science support classes (one of which included and the other of which included students during this school year), [A STUDENT] would have received additional reinforcement of material presented in the math and science classrooms. This extra reinforcement would have assisted [A STUDENT] in comprehending and retaining material.

[A STUDENT]’s reading delays would have been addressed through the continuation of the Wilson reading program.^[4] [A STUDENT]’s language needs would have been addressed in both therapy sessions and in the 12:1:1 and 12:1:2 classes where, in the context of these small classes taught by special education teachers, these teachers (as explained by Mr. [an English teacher] and Ms. [an English teacher]) would have reinforced language skills and worked on sequencing information to assist [A STUDENT] in comprehending and retaining that informatio[a student] Furthermore, [A STUDENT]’s need for assistance with understanding directions (and then following those directions) would have been addressed by both the special education teachers and the teaching assistants. The adult supports in these classes would have been essential to provide [A STUDENT] the individualized attention he needed to understand the content-area material presented to him and to participate in learning activities in the classroom.

[A STUDENT]’s social and emotional needs would have been addressed through and in the small classes for academic subjects. As explained by the School District witnesses, in the 12:1:1 and 12:1:2 classes, [A STUDENT] would have an easier time interacting with the teachers and his peers than in larger classes.

The parent contends that the “true test” regarding the appropriateness of the IEP is the fact that other than putting [A STUDENT] in a class with an extra teaching assistant and “pacing the curriculum,” the IEP from the and grade years were virtually identical. According to the parent, [A STUDENT] failed every major test in grade and regressed in all objective areas on the standardized tests, while at the same time there is strong evidence that a science teacher compromised one of the student’s tests. As a result, argues the parent, the proposed grade program would have been wholly inadequate to enable [A STUDENT] to make academic progress (Parent’s Closing Statement at p. 2). While there is a significant problem with the altered or amended science test, [A STUDENT] did engage in learning and made some slow progress in his academic classes during ninth grade. The School District’s program for [A STUDENT] for grade was not perfect; it was not required to be. To state that the tenth grade proposed program was identical to the grade program with the addition of one adult and some slower pacing, is—for the reasons set forth above—inaccurate. The t grade program as described by the IEP and the witnesses at the hearing does address [A STUDENT]’s special educational needs and was “reasonably calculated” to lead to educational gains for [A

STUDENT]

The parent also argues that the environment at High School is not properly suited for [A STUDENT]’s academic, social and emotional needs because [A STUDENT] is a “motivated student who isn’t doing well in the district’s program” and who “radically regressed while under the watchful eye of the district’s special education program” as demonstrated by standardized testing and “fail[ing] miserably in every one of his core classes” in the grade (Parent’s Closing Statement at p. 2). [A STUDENT] did not “fail miserably”—he ended grade with a in English, a in social studies, an in science and a in math. As described by his teachers, [A STUDENT] worked hard, participated in classroom learning and made some slow progress. There is no evidence in the record establishing that [A STUDENT] was unable to navigate the high school building, to function in the mainstream environment, or to interact appropriately with adults and peers.

The evidence presented at the hearing establishes that the School District did offer [A STUDENT] a free appropriate public education for the 2010-2011 school year. As a result, the School District prevails with respect to the first prong of the Burlington/Carter criteria.

B. The Appropriateness of the [a nonpublic school] School for [A STUDENT]

The parents bear the burden of proof concerning the appropriateness of the [a nonpublic school] School’s program for [A STUDENT] See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parents must show that the educational services provided at [a nonpublic school] addressed [A STUDENT]'s identified special education needs. See G.B. and L.B. on behalf of [A STUDENT]B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.[A STUDENT]Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207.

Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instructio[a student]” Frank G., 459 F. 3d at 364.

In this proceeding, the parents have not met their burden of establishing that the program at [a nonpublic school] provides [A STUDENT] with “specially designed” instruction to address his “unique needs.” “A ‘private placement’ is appropriate only if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo v. Arlington Central School District, 489 F.3d 105, 115 (2nd Cir. 2007) (citations omitted; emphasis in original). described the program at [a nonpublic school] and explained that the School provides an individualized program for each student. However, the evidence does not demonstrate that [A STUDENT] receives a program tailored to his identified and individual special educational needs.

In the first instance, the School provides [A STUDENT] with classes of students taught by one teacher. This does not constitute a sufficient level of adult support to address [A STUDENT]’s needs. Given his difficulties with comprehension and retention of material and with understanding directions, [A STUDENT] requires consistent redirection and checks that he is following along with and understanding material presented to him. Even testified that [A STUDENT] needs “a lot of assistance” from his teachers. did not explain how [A STUDENT] was supported in the classroom by the teacher as the only adult in the room. Furthermore, [A STUDENT] needs reteaching, reinforcement and review of material. .

did not explain how the School addressed these needs with respect to material presented by his teachers in his academic classes.

testified that she provided [A STUDENT]’s teachers with the following techniques to use with [A STUDENT]: seat [A STUDENT] in the front of the room to address his distractibility; consistent redirection; information provided in “clear language;” information “chunked” into “categories” and tasks broken down; visual supports; copies of class notes; graphic organizers; and additional time to complete tasks. testified that the teachers did sit [A STUDENT] in the front of each classroom—however, the evidence does not demonstrate that distractibility is [A STUDENT]’s problem; rather, it is lack of comprehension of material presented to him, and the fact that he is well-behaved and does not “act distracted” when he does not understand. What he needs is sufficient adult support in the classroom to ensure that he is following the instruction offered by the teacher and that he is comprehending the material as that instruction proceeds. The evidence does not establish that this is what [a nonpublic school] provides to him. Furthermore, the evidence also does not establish that the teachers have implemented and employ the other interventions that suggested to them other than graphic organizers. Even though testified that [A STUDENT]’s teachers used a multisensory teaching methodology, she did not represent that the teachers in those courses used any specific special education techniques generally or with [A STUDENT] in particular.

The School provides [A STUDENT] with three 40 minute periods per week of instruction from on basic math skills and two periods per week of Wilson reading instructio[a student] testified that [A STUDENT] has improved with respect to his basic math skills and that the reading teacher reports that [A STUDENT] has made “some progress in reading” without specifying the nature of that progress. While these two interventions do address two aspects of [A STUDENT]’s special education needs, they are not sufficient to establish that the School’s program meets [A STUDENT]’s special education needs to the degree that he would benefit from that program in a meaningful way.

There is also insufficient information with respect to curriculum at [a nonpublic school]. While the School is not required to implement any particular curriculum, the record should include some description of the curricular material [A STUDENT] is provided in his classes. Furthermore, given his academic delays and difficulties with comprehension and retention, [A STUDENT] requires a slower paced curriculum that incorporates time for repetition and reinforcement. [A STUDENT]’s grades his academic classes in the first quarter of the school year are in the s and s. It is difficult to assess the significance of these grades without an understanding of the curriculum. The parents did not offer in evidence [A STUDENT]’s grades from the second quarter, even though this information was requested by the hearing officer. The parents also did not offer in evidence [A STUDENT]’s third quarter grades.

The [a nonpublic school] School provides [A STUDENT] with an attentive and nurturing educational environment, but the evidence does not demonstrate that the School addresses [A STUDENT]’s special educational needs to the degree that the School meets the requirements for tuition reimbursement to the parents under the IDEA. See Gagliardo, 489 F.3d at 115 (reimbursement denied where “the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not”). As a result, the School District prevails on the second Burlington/Carter criterion with respect to the appropriateness of the [a nonpublic school] program.

C. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parents’ claims, the evidence establishes that the parents cooperated with the CSE by, over the years, enrolling [A STUDENT] in the School District’s programs, having [A STUDENT] participate in the CSE’s evaluation process, attending CSE meetings, and communicating and working with School District personnel to address [A STUDENT]’s academic difficulties and to obtain appropriate services for [A STUDENT]

The School District’s arguments that the parent did not deal with the School District in a forthright manner at the CSE meeting are unconvincing (see School District’s Closing Statement at pp. 25-26). The parent is permitted to pay a deposit to a non-public school to “save a place” for a child and to “get in the bus papers” by April 1 and still attend a CSE meeting with an intent to seek an appropriate public school program for that child. As a result, the parents prevail with respect to the third Burlington/Carter criterio[a student]

D. Transportation

New York Education Law §4402(4)(d) provides, in relevant part, that a board of education:

shall provide suitable transportation up to a distance of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special educatio[a student]

In order to be entitled to publicly funded transportation, Education Law § 4402(4)(d) requires a student to be attending a private school for the purpose of receiving special services or programs similar to the special education programs recommended by the student’s public school. Application of a Child with a Disability, Appeal No. 07-082; Application of a Child with a Disability, Appeal No. 07-073.

There are some similarities between the program and services offered to [A STUDENT] at [a nonpublic school] and the program recommended for [A STUDENT] by the CSE. [a nonpublic school] does provide [A STUDENT] with a Wilson reading program and small classes. However, the dissimilarities are significant and outweigh these similarities. At [a nonpublic school], there is only one teacher (who is not a special education teacher) in [A STUDENT]’s classes. This individual teaches the class without the assistance of additional adults to support the students. The School does not provide the recommended therapy nor . There are no support classes for additional reteaching and reinforcement. Therefore, there is no basis to disturb the original ruling with respect to transportatio[a student]

Therefore, for all the above reasons, it is ordered, that:

1. The parents’ request for tuition reimbursement for the 2010-2011 school year is denied.

2. The parents’ request for transportation is denied. Dated: April 28, 2011

_______________________________________

.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” 8 [A STUDENT]Y.C.R.R. §279.2(b). Failure to file the notice of intention to seek review is a waiver of the right to appeal this decisio[a student]

Directions and sample forms for filing an appeal can be found at the Office of State Review website: www.sro.nysed.gov/appeals.htm. List of Persons Appearing at the Hearing November 15, 2010 Parents

Esq. Attorney for Parents

, Esq. Attorney for School District

Special Education Supervisor

CSE Chair

Assistant Superintendent for Student Support Services November 19, 2010 Parents

Attorney for Parents

Attorney for School District

Special Education Supervisor

School

[a math teacher] Teacher November 30, 2010 Parent

Attorney for Parents

Attorney for School District

Special Education Supervisor

Assistant Superintendent for Student Support Services

[a math teacher] Teacher

Guidance Counselor

Teacher

[an English teacher] Teacher December 8, 2010 Parents

Attorney for Parents

Attorney for School District

Special Education Supervisor

[an English teacher] Teacher

[a nonpublic school] School February 17, 2011 Parent

Attorney for Parents

Attorney for School District

Special Education Supervisor [the student]

[a nonpublic school] School March 3, 2011 Parent

Attorney for Parents

Attorney for School District

Special Education Supervisor

[a math teacher] Teacher Documents admitted into the Record:

IMPARTIAL HEARING OFFICER EXHIBITS

I	8/17/10 Impartial Hearing Request (6 pgs.)
II	8/20/10 Motion to Dismiss (6 pgs)
III	8/26/10 Response to Motion to Dismiss (3 pgs.)
IV	8/29/10 Reply to Response to Motion to Dismiss (5 pgs. [handwritten notions made by hearing officer and are not of evidentiary value])
V	9/1/10 Sur-Reply to Motion to Dismiss (2 pgs.)
VI	9/22/10 District’s Response to Hearing Request (10 pgs. [identified in
in	transcript as IHO II])

SCHOOL DISTRICT EXHIBITS

1	8/31/10 IEP 2010-2011 (9 pgs.)
2	4/21/10 IEP 2010-2011 (8 pgs.)
3	3/8/10 IEP 2009-2010 (10 pgs.)
4	4/1/09 IEP 2009-2010 (10 pgs.) Evaluations, Assessments and Progress Reports
5	6/10/10 Annual/ Triennial Evaluation – Form by (1 pg.)
6	4/19/10 Letter from [the parent] to with attached Evaluation Report dated 3/1/10 by (4 pgs.)
7	3/24/10 Integrated Reevaluation Report by (2 pgs.)
8	3/4-3/8/10 Progress Report Reevaluation/ Annual Review 2009-2010 by (6 pgs.)
9	2/12/10 Secondary Classroom Teacher Report, Health, by (1 pg.)
10	2/12/10 Secondary Classroom Teacher Report, Earth Science, by (1 pg.)
11	2/12/10 Secondary Classroom Teacher Report, , by (1 pg.)
12	2/12/10 Secondary Classroom Teacher Report, English, by [an English teacher] (1 pg.)
13	2/12/10 Secondary Classroom Teacher Report, Social Studies, by

[A STUDENT] (1 pg.)

14 2/12/10 Secondary Classroom Teacher Report, Math, by

[a math teacher] (1 pg.) 15 10/29/09- Student Response to Intervention Report (2 pgs.)

9/29/10 16 2009- Progress Report, Measurable Annual Goals (3 pgs.)

2010 17 11/23/09 Transition Planning Documents (17 pgs.) 18 4/1/09 Progress Report, Annual Review

2008-2009, by

(3 pgs.) 19 3/2009 Level 1, Vocational Assessment/Transition Planning

(2 pgs.) 20 2/2009 Woodcock-Johnson III- Tests of Achievement (1 pg.) 21 8/8/08 Diagnostic Report, by

(3 pgs.)

Transcripts and Report Cards 22 4/12/10- 4th Quarter Report, Grade 9 (1 pg.)

6/25/10

Correspondence/Miscellaneous 23 [omitted] 24 8/18/10 Letter from to Parent/Guardian of [A STUDENT] (2 pgs.) 25 9/11/10 English 10x Period 6 (1 pg.) 26 8/18/10 Letter from to

(1 pg.) 27 1/27/10 Letter from to Mr. and Mrs. (1 pg.) 28 5/4/10 [a nonpublic school] School – Enrollment Contract (1 pg.) 29 N/A Student’s Handwritten Numbers

PARENTS’ EXHIBITS

Date Name of Document # Pages

C 3-4-10 Woodcock Johnson Exam 3

D 3-26-10 State Department Documents 4

E school districk” 1

F 11-19-09/4- Science Exams 7

9-10

G 3-19-10 Letter from to [A 1

STUDENT]’ Guardians

H 3-19-10 Letter from to [A 1

STUDENT]’ Guardians

I 4-29-10 Parent Letter to CSE Rejection and 3

Intention

J 6-14-10 Letter from to [A 2

STUDENT]’ Guardians

K 6-3-10/6- Rejection Letter/Proof of Receipt of 5

10-10 Rejection Letter

L 2010-2011 School Schedule 1

M 2010-2011 Report Card 1

N [a nonpublic school] School Overview 21

Footnotes

[2] The midterm grade of was not included in either the first or second quarter grades; it constituted 10 percent of final grade (trans. 413-414).

[3] The parent did not submit [A STUDENT]’s second quarter or midterm grades.

[4] Wilson reading was not listed on the IEP because it is allegedly a “general education” support. However, it is a “special education” support for [A STUDENT] because it addresses one of his identified special education needs. Therefore, I consider it one element of the special education program proposed by the School District for [A STUDENT]