Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education BEDS No. 8000

NYS ID. No. A and B on behalf of their infant son W.B.

-against- Findings of Fact The D School District --------------------------------------------------------------------------

Procedural Context On August 6, 2009 I was appointed to hear the matter of A and B, as parents of C, versus the D School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, at the Parents’ request, a resolution conference previously scheduled for Septem ber 1, 20 09 was adjourned a nd a District m otion to extend the resoluti on compliance date granted. On October 15, 200 9 the School District interposed a Motion to Di smiss, arguing that any claims for the 2007-2 008 school y ear were time-ba rred by the Statute of Lim itations. See 20 U.S.C. § 1415 [f][3][C] and 8 N.Y.C.R.R. § 200. 5 (j). In contrast, it was the Parents’ cont ention that the facts, sub judice, did not apply to the timeline referenced in 20 U.S.C. § 1415 [f][3][C]. Beyond this, the Parents sought an Order striking b oth the School District’s Answer and Affirmative Defenses while granting a directed verdict on t he grounds that the School District violated i ts procedural mandate by “reason of the Im partial Hearing being scheduled to co mmence ninety-one (91) day s after the Due Process Complaint was served and forty-three (43) days after the conclusion of the Res olution Session, and to conclude one hundred seventy-five (17 5) days after the Due Proc ess Complaint was served and one hundred twenty-seven days after the conclusion of the Resolution Session.” Exhs. iii-vii. On November 18, 2009, th e School District served a Reply Letter in Support of its District’s Motion to Dism iss and in Opposi tion t o the P arents’ Cro ss-Motion f or a Directed Verdict. Ther eafter, on November 20, 2009 the Parents forward ed a Reply Letter in Support of Pe titioners’ Cross Motion for a Directed Verdict and a Sur-Reply in Opposition to District’s Motion to Dismiss. On No vember 29, 2009, the undersigned issued an Interim Order ad dressing the School District’ s Moti on to Dism iss and the Parents’ Cross Motion for Directed Verdict. In sum , the District’s Mo tion was gra nted denied without prejudice to the P arents’ renewal, based upon the undersigned’s belief that dismissal would unfairly preclude the Parents from establishing the factual basis for an except ion t o New York State’s statute of limita tions and i ts tolling provisions. The remaining claims were denied. On Novem ber 10, 2010 the Parents filed an ev identiary Motion seeking the im position of negative inferences based upon t he District’s spoliation of el ectronic communications. In furtherance thereof, the parties were offered an opportunit y to develop the facts by subpoenaing a dditional witnesses, if necessary. This issue is now addressed separat ely and incorporated into the Findings of Fa cts sub judice. On Novem ber 4, 20 09; N ovember 5, 2009; Novem ber 25, 20 09; Decem ber 8, 20 09; Ja nuary 11 , 2010; January 25, 2010; January 27, 2010; February 8, 2010; March 8, 2010; March 9, 2010; March 10, 20 10; M arch 11, 201 0; April 8, 2010; April ^[1] 3, 2010; April 14, 201 0; April 15, 20 10; June 3, 2010; Ju ne 7, 2010; Ju ne 8, 201 0; Ju ne 25, 20 10; July 21, ^[2] 010; Jul y 2 6, 2010; Jul y 2 7, 201 0; September 27, 2010; October 5, 2010; October 28, 2010; November 15, 2010; November 29, 201 0; December 13, 2010 and Januar y 4, 2011, hearings were held. During these pr oceedings, testimony and evidence dating back to 2004 was incorporated into t he record. This reflected the Parents’ interest in creating an historical context for more current testimony as well as establishing their record on appeal. A t the conclus ion of the within proceed ings, the parties wer e given an opportunity to submit Memoranda of Law and, as a result, the timeline was duly extended. The School District’s Case

Shirley E testified as lead witness on behalf of the School Distri ct. Ms. E is the Director of Pupil Personnel Services and Special Education. She has been an educator for 35 years and has held various instructional and administrative positions in general and special education during this tim e. Ms. E is licensed in New York State as a Special Education Teacher, Speci al District Administrator , Elementary School and Se condary Sch ool Principal. Novem ber 4, 20 09 Tr. a t 24-32 . Dur ing this tenure, the Director indicated that she had become familiar with the diagnostic criteria for diagnosin g Autism Spectrum Disorders although she testified it is not within the purview o f the Committee on Special Education (hereinafter “CSE”) to generate such diagnos es. In furtherance thereof, Ms. E asserted that the school ps ychologist is responsible for adm inistering assessments that may identify areas of educational concern, but, even if the ps ychologist were additionally licensed as a clinical psychologist, “Diagnoses are not part o f the language that we use in terms of determining a child’s ability or disabilities.” November 25, 2009 Tr. at 470. Nevertheless, if a di agnosis of ASD were suggested thr ough som e assessment presented before the CSE, she indicated that adm inistrative protocol would call for additional speech evaluations , particularl y those direc ted toward p ragmatic language scales as well as focused psychological testing, classroom observations, social assessments and referral to a consulting neurologist. November 5, 2009 Tr. at 308. In her current administrative capacity, Ms. E testified that she was personally familiar with C, having chaired several of his CSE convenes as early as pr e-school in 2005. Exhs. 1-3, 6-8. Th e witness acknowledged, however, that she had observed the student’ s classroo m fewer than five ti mes, fo r purposes not exclusively related to C, and for period s of approxi mately one half hour. Novem ber 5, 2009 Tr. at 300. C has been known to the District as both a non-classified student with Section 504 accommodations as well as a student with a disability . The witness then provided a brief chr onology of C’s academic history within the District. On March 7, 2005 t he Committee on Pre-School Educati on (hereinafter “CPSE”) met to develop an educational plan for the 2 005-2006 school year, a year in which C was scheduled to articu late from pre-school to kindergarten. At this time, the CPSE determined that B. W. did not qualify for special education services under the IDEIA, but would be referred to the Section 504 Committee due to the presence of several medical issues. 1 E xhs. 4, 5. T he CPSE obs erved that alt hough standa rdized testing yielded average scores, “on a functional basis, he continues to have some areas of need.” Exh. 4 at 2. On June 20, 20 05, C was certified as a Section 504 stu dent with programmatic and testing accommodations incorporated into his educational plan . Exh. 6. Ms. E did not participate i n these CPSE meetings nor did she have any actual knowledge of the facts and circumstances surrounding the child’s recommendations. Upon revi ewing the docu ments, however, the witness testified that she concurred with the educational reco mmendations generated. Exhs. 4, 5. The Parents, nevertheless, retained their son in a private pre-scho ol for an additional year. C did not attend classe s within District during the 2005-2006 school year. The Pa rents did, however, access t he related ser vices of occupational and speech therapy through School District personnel. On May 24, 2006 an An nual Review was held. At th is time C’s Section 504 status was re-certified . It was, however, noted t hat the child co ntinued to struggle both academically and socially with more than one pro vider indicating the presence of significant behavioral issues. Ibid. at 73-74 . The Parents additionall y contri buted m edical inform ation from Charle s .D. and G ail K, a private speech and language pathologist seen by C during the 2005-2006 school year. Exhs. 11, 17. Although a March 29, 2006 ph ysical exam ination fro m Steven R, M.D. in dicated a diagnosis of this rep ort was not referenced within the Section 504 Accommodation Plan of May 24, 2006 nor was it discussed. Exh. 18. Based upon t he materials submitted, C was referred to t he CSE for evaluation and a series of new District assessments were conducted. November 4, 2009 Tr. at 132; Exhs. 9, 10, 12, 13. 2 Although the child was referred to the CSE on May 26, 2006, the Committee did not reconvene until November 28, 2006 at which time the child was classifi ed as Exh. 8. Ms. E could not account f or the basis of this delay , but noted that C was served by a 504 Accomm odation plan interim during this time. November 5, 2009 Tr . at 382. The child attended kindergarten within District during the 2006-2007 school year. On November 2006 several new asses sments were presented to the CSE as part of the child’ s initial referral. Exh. 8. Most n otably, it appe ars that the March 29, 2 006 physical exam ination of Dr. R indicating a diagnosis of was incorporated into the proceedings. Among the various assessments conducted, the Initial Evaluation of Am y J reported that scores yielded on the TOLD-P^[3] “do not accurately reflect the quality of C’s overall expressive language skills,” suggesting a qualitative versus quantitative distinction. Nove mber 4, 2009 Tr. at 92. The clinician further reported that the child dem onstrated d ifficulty with self-gener ated language, pragmatic speech and conversational skills requir ing e ye conta ct, turn ta king, topic m aintenance and reciprocal language.

Additional neurological and speech assessments were furnished by the Parents. Exh. 10 at 5. In summary, Amy J, the School District’s therapist, reported that, “C has an excellent fund of knowledge, but the quality of his responses is poor.” Exh. 8 at 5. Similarly, S chool District psychologist, Laura H, Psy.D., supplemented earlier cognitive and achievement testing with behavioral assessment s from the Conners’ Rating scales (Teacher and Parent), her own classroom observations and Parent/teacher interviews. Exh. 12. Beyond the widely scattered scores yielded earlier on the WISC-IV (i.e . tests of perceptual reasoning peaking at the percentile and working memory percentile), Dr. H now reported clinically significant levels of impulsivity and emotional lability, behaviors exerting a considerable impact upon the child’s ability to function within t he classroom. The clinician noted, in addition, that while C benefitted strongly from classroom structure, routine and a three to one paraprofessional, he continued to “misread[s] social cues, use[s] a loud speaking voice and has a poor sense of personal space. C is very responsive to adult support with navigating social interactions.” Exh. 12 at 1-2. On cross-examination, Ms. E indicated that she did not know whether Dr. H was in possession of Dr. R’s report nor did she recall discussing its contents w ith her. The witness further indicated that she did not remember any discussion with Dr. H regard ing additional educational disabilities, such as PDD, not already referenced in her report. She could not recall any conversations regarding the issue of bullying, but was aware of C’s inappropriate social skills. Tr. at 5977. With regard t o the Educational Assessment prepared b y Carol G in November 2006, Ms. E opined that Ms. G’s report appeared to be based up on appropriate test instruments and classroom observations. Exh. 13. Moreover, had C remained within District, it is possible Ms. G would have been assigned to teach C’s first grade class. January 11, 2010 Tr. at 889-890. In addition to Ms. G’s assessment, t he witness noted that an earlier Neuropsychological Evaluation of Cori V, Ph.D., had been addressed during t he November 2006 CSE proceedings. Nevertheless, M s. E testified that she could not determine whether scores yielded by the School District’s testing were consistent with those of Dr. V, as two different standardized instruments were utilized. November 25, 2009 Tr. at 529; Exhs. 13, 14. Finally, the witness referenced the Occupational Therapy report of Paula Y, OTR in which the therapist reported that C experienced sensory motor processing deficits which impacted upon the child’s ability to perform in the classroom without support. Exh. 15. In response to these issues, the IEP indicated that “ modifications to address his sensory deficits would be helpful in the classroom”

and provisions for a sensory diet along with short breaks were incorporated into the child’s IEP. Ibid. at 540-541. Beyond this, the IEP articulated several occupational therapy goals. Exh. 8 at 9-10. In fact, Ms. E testified that there was no discussion of PDD by either the Parent or schoo l personnel, nor did she recall any request for further authorization to speak with Dr. R. Nov ember 4, 2009 Tr. at 133; November 25, 2009 T r. at 477. Alt hough the ch ild additionally received the rel ated services o f ther apy, C di d not receive therapy , a service declined by the Parents. Ibid. at 154. Rather, the Parents e ngaged the services o f a private therapist whose reports were shared with the CSE. Exh. 19. As a result of the November 28, 2006 CSE convene, C was classified as and offered a range of educational acc ommodations, related services and as signment of a 3:1 paraprofessional. Despite math and reading/decoding scores falling at the 21st and 27th percentiles, the CSE noted that C “does not appear to require direct intervention from a speci al education teacher at this ti me,” an d recommended a general education placement with program modification/accommodations supported by a 3:13 classroom aide and related services. Beyond this, both the IEP and Dr. H recommended the use of a “positive reinforcement behavior plan” used on a daily basis.^[4] Exhs. 8 at 2; 12 at 4. On May 2, 2 007 the CSE reconvened for the purpo se of conducting an Annu al Review. Exh. 1. Among the attendees, school ps ychologist Michaela X, an interi m replacement during Dr. H’ s maternity leave, participated. In furtherance thereof , the witness indicated that she was u ncertain whether Ms. X had any personal familiarity with C at this time and could not affirm whether she had reviewed Dr. R’s docum entation prior to or at this meeting. December 8, 2010 Tr. at 622; Exh. 18. Although Dr. R’ s report was referenced in the “b ased upon” section of the May 2, 2007 IEP, the witness testified that this did not always signify that the report was either present or discussed. Likewise, Ms. E testified t hat Ms.W-W and Dr. Cory V, private consultants retained by the Parents, had participated along wi th District p ersonnel in t he preparation of t he May 2, 20 07 I EP. I n furtherance thereof, the witness noted the adoption of Dr. V’s recommendation for an intensive multi-sensory approach to reading. Ibid. at 711-712; Exh. 14 at 9. The child’s program for the 2007-2008 school year was supplemented by the addition of a resource consultant teacher who would utilize a m ulti-sensory approach with C and to whom he woul d report three times per week for 30 m inutes (15:1). December 8, 20 09 Tr. at 628-6 29. Other than t his, C’s program essentiall y adopt ed the progr am modifications delineated within the Novem ber 28, 20 06 IEP. The wi tness acknowledged that C ’s IEP goals were largely derived from IEP Direct without reference to any grade le vels and did not kn ow wh y the IEP do es not include math goals. Ibid. at 634-635; Exh. 1. Moreover, althoug h Ms. E alluded to t he development of social/em otional go als, the IEP does not reference these. Exh. 1. Beyond this, the IEP does not appear to incorporate a positive behavior plan, an educational modification specificall y incorporated into the student ’s previous kinderga rten IEP. November 5, 2009 Tr. at 259; Exh. 8. therapy and previously offered on a monthly basis were additionally discontinued on the May 2, 2007 IEP. Although Ms. E opined that the child had had a successful kindergarten experience, she was awar e that the Parents had registered C at the M School for the upcoming year. Exh. 1 at 1.

During the 2007-2008 school year, C was unilaterally placed at the M School (hereinafter “M”). Although this placement is referenced within t he May IEP, there appears to have been no discussion regarding the Parents’ decision to place C privately despite Ms. E’ s belief that Ms. W. had been pleased with C’s experience during the 2006-2007 school year. Exh. 1 at 5. On cross-examination Ms. E acknowledged that she did not recall any discussion at this time regarding bullying, C’s lack of friends or the need to train his 1:1 aide. Ultimately, Ms. E testified that she did not initiate any conversations with the W.’s regarding their decision to place their son at M, nor did t he Parents indicate any intention to seek reimbursement from the School District. November 4, 2009 at 155; November 25, 2009 Tr. at 573-574, 577-578.

It was Ms. E’s opinion, in fact, that M as a private language-based program was “insufficient” for a language impaired child such as C Ms. E testified, “. . . f or a child w ho has a speech and language impairment to be in an included environment where there’s opportunity to model language, to be in a heterogeneous environment in terms of exchange and dynamic language opportunities are - there is more opportunity in an include d environment. I think t he notion of related services being included in a curriculum are a piece of But they’re not specific in terms of addressing some of the specific expressive and receptive language disorders that were identified in the assessments that were conducted on C” January 11, 2010 Tr. at 987. The witness concurred with the recommendations articulated within the Ma y 2, 2007 IEP and noted that the academic goals a nd objectives were similarly appropriate for a child entering first grade. November 4, 2009 Tr. at 143. Ms. E summarized her opinion of th e May 2, 2007 IEP by noting that the CSE had reviewed both qualitative and quantitative information regarding the child, allowing each teacher or provider to contribute both their opinion and assessments; given the substantial gains evidenced b y the student during t he prior school year, the witness believed the general education placement an d supports (academic, behavioral and emotional) offered by the CSE constituted the least restrictive environment. She did, however , acknowledge that, despite anecdotal reports of student progress, C now required the intensive services of a classified student, rather than the 504 plan which had been generated in November 2006, months earlier. Ibid. at 646-648. On June 19, 2008 an Annual Review was held and, a s a result thereof, an IEP w as generated. At this time, both District personnel as well as representatives from M participated. As C had spent his first grade year at M, Ms. E testified that it was the School District’s practice to request the participation of non-District personnel familiar with the child. At the discretion of M ’s Alice T, their CSE liaison/team leader and Beth U, M’s Assistant He ad of the Lower School participated. Exh. 2. Additional evaluative material included “standardized testing” from M along with anecdotal information and progress reports for C In addition, an observation by Dr. H at M was included as part of the child’s Annual Review. Exhs. 20-22. Referencing the contributions made by M personnel at the CSE meeting, Ms. E opined that the IEP of June 19, 2008 appropriately addressed C’ s academic and behavioral needs by furnishing him with meaningful instructional supports and academic accommodations. In furtherance thereof, the witness noted that programmatic modifications had include d the need for repetition, refocusing, rephrasing, previewing, checking for understanding, scaffolding of instructional materials and sensory breaks. November 4, 2009 Tr . at 184-185. Similarly, Ms. E believed the academic goals formulated at this time were appropriate as they had been developed in collaboration wit h M personnel and meaningfully reflected the child’s current abilities and achievement. January 11, 2010 Tr. at 846-850. She did not believe a draft IEP had been developed b y the School District and indicated that new goals are formulated by the child’ s current placement as these current teachers have the best understanding of the child. Once again, a general education setting was offered along with the assignment o f a 3:1 paraprofessional, an intervention which she believe d had served the child well in kindergarten in terms of social facilitation. Ibid. at 70 3. At th is time, resource consultant teacher services were enhanced to five times weekly (45 minutes per session) and individual counseling provide d on a weekly basis. 5 The CSE additionally determined that C required testing accommodations and the child became eligible for an extended school year, a service Ms. E believed was necessitated b y the increasingly sophisticated demands of school and the likelihood of regression during the summer months. November 5, 2009 Tr. at 264. In formulating the IEP of June 19, 2008 , Ms . E acknowledged that M personnel had shared information regarding the child’ s progress, including test results and progress reports. Nonetheless, the witness noted that she had not been furn ished with copies of the child’s 2007-2008 progress reports until the actual CSE convene on June 19, 2008. January 11, 2010 Tr. at 884-885; Exhs. 20- 21. With regard to the participation of M personnel, Ms. E could not recall whether they had been present via telephone for the entire meeting. Ibid. at 672. Similarly, Ms. G again participated in the June 19, 2008 meeting as one of th e resource consultant teachers responsible for this intervention during the 2008-2009 school year. Other than Liz S, the general education teacher participating at the June 19, 2008 CSE6, Ms. E testified that the remaining committee members were familiar with C Although the witness testified regarding M’ s exchange of new testing material and progress reports, the M testing had not been incorporated into the “standardized test results section” of the IEP. The witness stated, “The score s that would be included in the IEP would be scores that we re part of a n evaluation being done . . . The scores that are reported on [M’s] Stanford scores are academic scores. They’re not cognitive assessments. They’re not speech and language assessments. They wouldn’t be the educational battery . We wouldn’ t test a student when the y’re not i n our s chool unless it was a triennial year. So these scores – typically Stanford are group administered an d I don’ t know what conditions they would ha ve been presented under, administered under.” The witness noted that although the se test scores would not be reported in the testing section of the IEP, they were nonetheless discussed at the CSE meeting and annotated within the document. December 8, 2009 Tr. at 663, 669; Exh. 2 at 6.

Monthly consultations in psychology and speech were additionally incorporated into the child’s IEP, but do not reflect direct service to C Exh. 3 at 1. As the child had not attended classes within District since kindergarten, it would not have been feasible to include a general education teacher from the District with direct knowledge of the child. Ms. E testified that M personnel had assisted w ith the form ulation of each goal based upon C ’s current level of performance and that the School Di strict had relied upo n M’s i nput as the y were the individuals currentl y prov iding instruct ion to the child. Although the e ducational reco mmendation generated by this meeting included an extended instructional year, Ms. E noted that the child had not been enrolled in the School District’s summer program. Ibid. at 673. Upon inquiry, Ms. E described the resource consultant teacher model utilized within the District. She noted that the service is provided by a licensed and certified special educati on teacher in a self-contained classroom. While C would be receiving these supplemental services, he would continue his placement in a general education classro om. As Di rector of Pupil Personnel and Special Education, Ms. E was not responsibl e for identif ying the child’s general education teacher and, t herefore, could not describe this individual’ s specific training in O rton-Gillingham. The wi tness was, however, familiar with the aide to whom the child w ould be assigned during th e 2008-2009 school year, indicating th at this individual was co mpleting a Master’s program in special education and had known C since kindergarten when she had been assigned to C In sum, Ms. E was uncertain whether M agreed with the educational recommendations of the June 19, 2008 IEP, but surmised that they had, based upon t heir participation in form ulating the child’s goals. Again, the Director noted that many of t he IEP goals had been bor rowed from IEP Direct an d could not recall how they had been customized for C Ibid. at 695. The witness reiterated that there was no discussion of nor h ad Dr. R’ s report been discussed, notwithstanding its denom ination in t he “based upon” sec tion of the IEP. Ibid. at 689-691. She did not recall any specific discussion regarding curriculum , but did re member addressing Dr. V’ s 2006 evaluation and adopti ng its recommendations for in tensive multi-sensory phonics-based approach t o reading. December 8, 2009 Tr. at 709- 710. Again, Ms. E testified that the Parents had not i ndicated any intention to seek public financing of C’s education at M for the upcoming 2008-2009 school year. Similarly, Ms. E did not r ecall any discussions with the family regarding the appropriateness of M. Notwithstanding her hand writte n note on the M testing report , the witness t estified that she wa s unaware of the Parents’ i nterest in seeking re imbursement fro m the District, although she knew C would be enrolled at M during the 2008-2008 school year. Ibid. at 654, 661.

The witness acknowledged hand-writing the words “notice of intent?” on M’s report. Exh. 20 Ultimately, Ms. E testified that she did not initiate any conversations with the W.’s regarding their decision to place their so n at M, nor did the Pare nts indicate an y intention to seek rei mbursement from the School District, although she was, in fact, aware of their disagreement with the c hild’s IEP. Ibid. at 155; November 25, 2009 Tr. at 573-574, 577-578. On April 28, 2009 the CSE convened for the purpose of developing an educational plan for the 2009- 2010 school year. In form ulating the child’s IEP, Ms. E acknowledged that the CSE relied, in part, upon evaluations which w ere nearly 3 years old. Moreover, M’ s assessment s from the prior year were not referenced with in the April 28, 20 09 I EP. Ms. E could not re call discussing the M evaluations, but suggested that two of the CSE me mbers had participated in the child’ s earlier CSE convenes; the witness suggested that these individu als may ha ve independe ntly recalled the prior year’s scores or reviewed them in anticipation of the April 28, 200 9 meeting. December 8, 2009 Tr. at 748-755. Ms. E acknowledged that she was uncertain which reports had been available to the CSE at this time and agreed that this Annual Review was conducted in the absence of an observation. December 8, 2009 Tr. at 717, 766-767. Among the CSE mem bers, Ms. E acknowledged that neither general education teacher Ms. Gelsomino n or special educator Debra I had pers onal knowledg e of the stud ent. However, had C remained in District, both Ms. I and Ms. Gelsomino might have been identified as the child’s special education or general education teacher. January 11, 2010 Tr. at 891. Sim ilarly, Ms. S, a general education teacher with marginal familiarity of C, could have been assigned as C’s teacher. In its deliberations, the CSE relie d upon District reports dating back to 2006 and m aterial presented by M. Ms. E noted that Dr. R’ s report was not dis cussed, nor was it available as part of the CSE packet during this ti me, adding that only new info rmation would have been phy sically present at the meeting. Ibid. at 726-728 .8 Once again, M personnel particip ated via speakerphone and fu rnished updated progress reports for the child. Exhs. 3, 23. As Chairperson of this CSE, Ms. E noted that the IEP presented an accurate view of the student’s current performance and reflected an educational plan which could meaningfully address C’s strengths and weaknesses. November 5, 2009 Tr. at 229, 250.

The witness testified that the “based upon” section of the IEP does not actually reflect material which is presented to the CSE during the actual convene. Rather, it cumulatively reflects material which may have been presented at earlier meetings. Specifically, Ms. E testified that the acade mic a nd social/e motional goals prom ulgated w ithin the April 28, 2009 docum ent r eflected the “performance outcomes tha t had been shared” by the CSE’s participants. Ibid. at 249-249. While the student continued to struggle with certain skills, especially in the area of math, many academic goals/objectives reflected more stringent achievement criteria and less dependence upon rot e learning. I n addition, new study skil ls goals were incorporated into the child’s educational planning. Exh. 3 at 7. Ms. E’s revi ew of the April 20 09 ed ucational reco mmendations indicated t hat the y were largely a restatement of those found in the June 19, 2008 IEP with certain modifications, i.e. the substitution of small group counseling rather than individualized th erapy. As a result of the CSE convene of April 28, 2009, the IEP recommended, inter alia, a general education pl acement supplemented by five (45 minute) periods of resource consultant t eacher in at 15:1 setting, a 1:1 aide along with various relat ed services and educational modifications. In add ition, the IEP referenced M ’s use of the Merrill Reading Program . Exh. 3 at 4. Consistent w ith the Parents’ objection to sc hool-based individual counseling, the child’s mandate was modified to a group setting. December 8, 2009 Tr. at 740-742. Finally, Ms. E opined tha t C’s attentional deficits had precipitated the need for sensory or “short” breaks, a program modification consistently incorporated into the child’s IEP. Exhs. 1-3. While the witness obse rved that the need for these modifications could a pply t o a panopl y of educational deficits, it did not specifically suggest to her that C was a student along the The witness described the F School whose enrollment falls at approxim ately 500 students between kindergarten through fifth grade. General educa tion classes are capped at 22 students. The school provides Academ ic Intervention Servic es, Readi ng Recovery an d Educationa lly Related Support Services (her einafter “ERSS”) along with data b ased programm ing in connection with Response to Intervention. November 5, 2009 Tr. at 274-275. Teachers ar e encouraged to utilize a multi-sensory approach and both resource consultant teachers an d special ed ucators are t rained in Preventing Academic Failure, Wilson or Orton-Gillingham methodologies. Although general education teachers are not traine d specifically in t hese methodologies, emergent skills may be reinforced or generalized between the mainstream and resource classroo ms through program modifications enumerated within the IEP in addition to the instructional collaboration of both general and special education teachers. Ms. E characterized the April 28, 2009 proceedi ngs as collaborati ve and cooperative, noting that M staff had participated fully. Nevertheless, there was no discussion of placing C at the N School at this time, nor did the Parents indicate their interest in doing so at public expense. Ibid. at 297. Moreover, Ms. E was unaware of the Parent’s ongoing effo rts, at this time, to obtain a private psycho-educational evaluation of C There was no discussio n of ASD, no r did the Parent raise this concern. In sum, Ms. E opined that C was a child of aver age or above average intelligence who would benefit from being in an included environment. On July 22, 2009 Ms. W. forwarded letters to the CSE rejecting the IEP of April 28, 20 09 and further placing the D istrict on no tice that C would be attend ing the N Sc hool during the 2009-2010 school year. In furtherance thereof, the Parents requested transportation services for their son. Exh. 30, 31. On Jul y 30, 2009 the School District r eceived add itional evaluati ons including those of Judith O, Ph.D., Gail K, Carol Z, Ph.D. and Kid Abilities. Exhs. B-1, B-2, B-3, B- 4, C. An a dditional evaluation by Dr. O was not furnished until after hearings in the within matter had co mmenced. Exh. D. Although one of Dr. O’s assessments actually coincided with the April 28, 2009 CSE c onvene, Ms. E testifi ed that the P arents never mentioned these evaluations, although they coul d have been utilized during the April 2009 CSE convene. January 11, 2010 Tr. at 942. In fact, the CSE was unaware of any of these reports until July 30, 2009. January 11, 2010 Tr. at 986. Ms. E testified that, at or about this time, she had been on vacation as were other CSE members. As a result, the District did not contact the family until August 26, 2009 offering to schedule a S eptember 8, 2009 program review, in view of the new evaluations submitted to t he District. Exh. 30. Ms. W. replied by e mail that they were unavailable fo r the Septem ber 8, 20 09 date, but wou ld offer alternatives. To date, Ms. E testified that this has not occurred. Exhs. 29, 3 1-32. Rather, the Parents indicated they would be enrolling their child at the N School and requested bus transportation . Their letter does not indicate an intention t o hold t he Di strict responsible for underwriting N’s tuition. January 11, 2010 Tr. at 813-814. Although C w as ulti mately placed at N during t he 2009-2010 school year, Ms. E testified that she had yet to receive any progress reports from the school. Januar y 11, 2010 Tr. at 879-880. On cross-examination, Ms. E testified that, notwiths tanding a Sc hool District medical rep ort from “Dr. R,” dated March 29, 2006 noting a diagnosis of “PDD,” she could not recall ever discussing this diagnosis at any CSE. N ovember 5, 2009 Tr. at 325-326. E xh. 18. She further clarified that documents and assessments incorporated into the “based upon” section of the I EP are not necessaril y distributed to the CSE members for their review, nor are they necessarily discussed. As a matter of custom and practice, M s. E testified that she would have presented the medic al exa mination at the initial eligibility meeting, although only she and th e psychologist would actual ly be in possession of the report. November 5, 2009 Tr. at 313-316. In furtherance thereof, she did not recall if Dr. R’ s report had been discussed at the child’s Section 504 meeting on May 24, 2006 and believed it had not been shared with the CSE until November 28, 2006. Exh. 8. She did not, m oreover, recall whether the Parent ha d raised a co ncern about Dr. R’s notation. Ms. E d id, however, testify that there was no reference to an y administrative protocol for students at the IEP meeting of Novem ber 28, 2006 as there was no discussion of Ibid. at 319-323, 326-327. Likewise, although the May 2, 2007 IEP references Dr. R’s physical examination, she did not recall whether it had been discussed and reiterated that the issue of had never been addressed by the CSE. Exh. 1. Finally, Ms. E observed that the District did not have a specific policy in place vis-à-vis responding to parents who dispute a par ticular IEP, although personnel m ight attem pt to i nitiate a dialogue or reschedule a program review. Likewise, there is no specific District protocol for responding to a t en day notice of intent pursuant to 20 U.S.C. § 1412 (a)(10)(C)(iii)(I) and 34 C.F. R. § 300.148(d)(1). January 11, 2010 Tr. at 860. In terms of the services offered by M, the witn ess did not belie ve C had be en assigned to a 3:1 paraprofessional, nor had he rec eived related services specifically from a licensed therapist. Ms. E agreed that t he use of a p araprofessional required tr aining and sensitivit y such that a child would not be stigmatized by provision of this service. The witness agreed that a review of th e child’ s IEPs fro m November 28, 2006 and April 28, 2009 reflected, in part, identical standardized testi ng performed within the School District. However additional assessments performed by M personnel had been incorporated into the discussion on April 28, 2009 CSE. Exhs. 8, 3. Th e witness agreed that the District’ s IEPs do not alway s include a complete statement of the testing reviewed, noting t hat certain individual and group assessments ar e quantified and norm ed differently . Nevertheless, th is did not m ean that additional testing had not been discussed at length by CSE m embers. While triennial assessments wer e not due until October 25, 2009, the witness ack nowledged that there might be circumst ances in which additional testing might occur. For example, supplemental evaluations might by initiated at parent or teacher request in order to gain further insight into a child’s current levels of functi on. This discussion, however, had not been held am ong the parties and Ms. E testif ied that, notwithstanding r egulatory requirem ents, neither the Parents, M nor N had raised this concern. Ibid. at 877, 893, 923-925. Finally, Ms. E testified th at although she was aware of ED-1 with respect to the retention of student records, she did not rel y upon its pr ovisions in th e regular course of business. Likewise, she learned of the portions relating to litigation holds during the course of the within hearing. January 4, 2011 Tr. at 5959-5961. Dr. H, Ph.D. testified add itionally on behalf of the School District. She has been em ployed by the District for eight y ears as a school psy chologist. In this capacity , Dr. H conducts testing and evaluations, provides cou nseling, perf orms obser vations and m anages both C SE and 504 meetings. She serves, m oreover, as a case manager for 30 cl assified children as well as a support and resource for general education stud ents at risk. She has had a long history of working with elementary school children.

As early as November 1, 2005, Dr. H began participating in CSE and 504 reviews for C Exh . 6. The witness has known C since the 2005-2006 school year when she conducted an informal observation at Q Nursery School. Dr. H observed that C was an active participant in the group, but required support to remain on task. She testified that, “It was a positive observation, but I could see at that point that he was going to need additional support coming to F.” January 25, 2010 Tr . at 1050. Nevertheless, she did not anticipate a difficult transition as the child was already receiving related services at this site and had developed relationships with its personnel.9 C remained at Q until June 2006 w here he had completed an extra year of pre-school and in September 2006, C commenced his kindergarten year within District.

On May 24, 2006 the Section 504 Committee referred C to the C SE. Among the reports addressed, Dr. H recall ed that the medical diagnosis letter from Charles M.D. was utilized to certify C as a Section 50 4 student. Ex h. 17. She did not, however, recollect a medical examination from Dr. R which included the child’s immunization records and a handwritten note stating, Exh. 18. Moreover, Dr. H testified that it w as unlikely Dr. R’ s report would be discussed at this CSE meeting as it was simply a physical examination which remained current. January 27, 2010 Tr. at 1456-1469. The witness did not recall any discussion regarding (hereinafter ”) and noted that the Parent had not raised this concern with her.

At this time in May 2006, Dr. H noted that the child’s global success during his second y ear at Q was tempered by concerns regarding behavioral issues and ongoing language and motor deficits. J anuary

The child received related services from Amy J and Paula Y who later participated in the child’s CSE convenes. 25, 2010 Tr. at 1062. Her notes from this meeting indicate, inter alia, “. . . transitions difficult . . . have behavioral issues . . . needs help focusing . . . overstim ulation impacts him . . . increased ey e contact a focus across sett ings.” Exhs. H, O. The clinician additionally observed a lack of sensitivit y to personal space a s well as an el ement of disorgani zation in terms of following directions. Again , Dr. H testified that she did not consider the presence of as many young children with manifest a similar educational profile. March 8, 2010 Tr. at 1811- 1813.

Nevertheless, a 504 Plan was drafted which included recommendations for a full-time shadow aide, related services and educational accommodations. Although C presented as a child who had difficulties with expressive and receptive speech, pragmatic speech, eye contact, transitions, rigidities and social interactions, Dr. H testified that this profile was consist ent with noting that some of these characteristics did, in fact, overlap with Likewise the medical report of Ra y Jones, M.D. had suggested neurological sequellae from Lyme Disease which included motor impairment and language delays. Exh. 17. In furtherance thereof, she believed the Section 504 accommodations adopted by the District, and in particular the 3:1 aide, addressed the child’s deficits independent of any formal diagnostic criteria. January 27, 2010 Tr. at 1486; February 8, 2010 Tr. at 1538. Similarly, C’s educational planning included th e implementation of an informal behavior plan and th e use of prompting/modeling as a springboard to developing appropriate social skills. Aware of C’s difficulties with transitions, Dr. H opined that this characteristic is common for children with as the act of transitioning requires the ability to shift cognitive sets, a difficult task for hyper-focused children. Ibid. at 1569-1570.

On June 13, 2006, the witness conducte d a kindergarten screening. At this time, Dr. H observed that C transitioned with ease but engaged in spontaneo us conversati on which was frequently t angential and off-task. Exh. P.

Thereafter, the child commenced the 2006-2007 school year with Section 504 accommodations and a referral to the CSE. Ex h. 7. Following a series of evaluations, the CSE reconvened and o n November 28, 2006 C was classified with a speech and language impairment. Exh. 8. Dr. H described the initial eligibility meeting of the CSE in great depth. While it was, ultimately, clear that C required additional educational modifications along with continued assignment of a 3:1

paraprofessional, the CSE deter mined, “He [C] does not appear to require direct intervention from a special education teacher at this time.” Exh. 8 at 3.

In preparatio n for t he No vember 28, 2006 CSE, Dr. H testified that she h ad com pleted a Social History of C with the Parent. Exh. 9. At this time, the Parent had expressed concerns about the manner in which her son’s behavior interfered with his ability to learn. Ms. W. observed that C was a social child who had difficulty relating to peers and exhibited insensitivities to personal space, speech volume and rules of social co mmunication such as eye contact, an opini on with which the witness agreed. January 25 , 2 010 at 1 075-1078. Ms. W. related a hi story of on going tem per tantrums, impulsivity and difficult y with transitions in add ition to her concerns about C’s ability to retain information.

Dr. H additionally performed an observation and psychological evaluation of C in preparation for the November 2006 CSE meeting. Exhs. 12, N. Along with her own classroom observations, social history and teacher interview, the witness provide d both the Parent and teacher with the Conner ’s Rating Scales. Exh. S. Based upon these reports, i ndices of emotional labilit y, hyperactivity and impulsivity suggested C was an at-risk child for . March 8, 2010 Tr. at 1825-1 828. Ultimately, Dr. H testified that, in isolation, m any of the behaviors demonstrated by C might have been consistent with a diagnosis of ASD although she had not considered this possibility. Rather, this testing – performed at the beginning of the school year- suggested to her that the child was “having a hard adjustment” to school. Ibid. at 18 27. Later, during her observation, Dr. H noted that the child was easily re-directed by his paraprofessional, 10 but did exhibit episodes of in attention, “fidget y” behavior, silliness and intransigence when transitioning. Other times, the child additionally displayed behavioral rigidities and fixations which were counter-productive and isolating. March 8, 2010 Tr. at 1808-1809. Again, Dr. H opined that this profile was more consistent with C’s Ibid. at 1828-1829.

In response to the child’ s resistant beha viors, an informal behavior plan had been developed which was shared with the Parents. Most s ignificantly, Dr. H’s note s for the No vember 28, 2006 CSE

It appears that the shadow aide functioned, in part, as a social facilitator who assisted with transitions, moderated peer conflicts, reinforced C’s use of pragmatic speech and cued socially appropriate behaviors. January 25, 2010 Tr. at 1087, 1091. convene indicate that C’s language deficits continued to impact negatively on academic achievement. February 8, 2010 Tr. at 1586-1587. Referencing the speech and language assessment, she noted that even where knowledge was present, the “qualit y of how he relates his responses (sic) is poor.” In contrast, Dr. H’s notes als o described a child who was “very enthusiastic and passionate” within the classroom . . . was a grea t motivator . . . Loves people. They enjoy him.” J anuary 27, 2010 Tr. at 1394; Exh. I. Transitioning was now “very sm ooth” and C ’s experience with the shadow aide was described positively notwithstanding bi-weekly temper tantrums and C’s frequent inability to navigate social situations successfully. Exh. 12. Still, gi ven the constellation of on-going behavioral issues, Dr. H did not consider the presence of ASD. March 8, 2010 Tr. at 1809.

In addition t o her own reports and evaluations, Dr. H noted that the CSE reviewed C arol G’ s Educational Assessment. Exh. 13. Dr. H explaine d that the report referenced grade based norm s on the Kaufman Assessment Battery for Children (hereinafter “KABC”) which did not include testing on educational material to which a child had not been exposed. Scores yielded on tests of arithmetic and reading/decoding placed C at the percentile and percentile respectively, for his age. Nevertheless, Dr. H observed that the District preferred to use grade-based equivalents so that testing would not penaliz e childre n who had not been exposed to instruction presented in higher grades.

Dr. H additionally testified that the CSE had revi ewed the private Neuropsy chological Evaluation by Cori V, Ph.D. The witness testified that the Dist rict had relied on Dr. V’s report in order to avoid subjecting the child to repetitive and lengthy testing. February 8, 2010 Tr. at 1573- 1574; Exh. 14. She noted that the child had generally tested at t he average to low avera ge range. However, significant scatter reveal ed perceptual organization at the high end of the superi or range in c ontrast with working mem ory at the first percentile and wr itten expression at the fifth percentile. Again, as with her own testing, the Conner’ s rating scales were statisti cally significant for opposi tion and with cognitive sequellae. Unlike Dr. V, ho wever, the witness believed it was premature t o diagnose C with a writing disorder given (1) the presenc e of a neurological tremor and (2) the fact that C had not entered kindergarten at that point.

In sum, Dr. H noted that the V report did n ot reference any autism spectrum disorder, nor was this discussed at the CSE meeting. Rat her, Dr. V diagnosed the presence o f a Mixed Receptive-

Disorder and a Disorder of Exh. 14 at 10.

Finally, Dr. H testified b riefly regardi ng th e CSE’s considerati on of Gail K’ s 2006

Report. Based upon Ms. K’s testing, C yielded scores in core language skills which were significantly below expectations, particularly in the areas of expressive language, tests of recall and auditory processing. Exh. 11. Ms. K’s report describes a child with a mixed expressive and receptive language disorder tem pered by cognitive strengths and ultimately producing a resultant moderate level of impairment. Dr. H testified that the report did n ot reference any concern regarding t he presence of Ibid. at 1118. She stated, “W e talked about C inter ms of having significant language impairment and also having So that combination is not uncomm on to have pragmatic language skill issues when you have those diagnoses. . . . And then there’ s also the impulsivity piece, which can impact the attention piece. So it was all intertwined.” February 8, 2010 Tr. at 1604.

Consistent with Ms. K’ s report, Amy J conducted a speech and language evaluation on beha lf of the District. Exh. 1 0. Ms. J conducted s upplemental testing on ins truments to which C had not been exposed. This included the Peabody Picture Vocabulary Test, a receptive vocabulary test which does not rely on spoken language. In add ition to this, scores were y ielded from the TOLD-P3. In general, both test m easures produced average scores with deficits in or ganizing lan guage. However, in conversations with Ms. J, Dr. H noted that the speech therapist believed C was scoring higher than his actual ability “in real life”, adding that in day to day interactions, she could see “very real difficulties with him formulating responses and organizing language.” January 25, 2010 Tr. at 1121.

Dr. H noted, moreover, that the CSE had discussed the occupational therapy evaluation by Paula Y who tested t he child and reported a compromise in C’s fine motor skills, notwithstanding clear strengths in visual motor integration and perception. Exh. 15. Nevertheless, Ms. Y additionally observed a “behavioral piece” in terms of the child’s inattention and impulsivity. The parties agreed that C as a “sensory seeking child” could easily become over-s timulated and, therefore, required frequent breaks. February 8, 2010 Tr. at 1566. During this time, Dr. H testified that she was aware of the Parent’s dissatisfaction with the occupational therapy program which did not offer t he kind o f sensory diet Ms. W. believed C required. The witness testified additionally that, as case manager, she frequently was called upon to mediate personality differences between the parties. Finally, the witness indicated she had seen a letter from Charles Ray Jones, M.D., C’ s pediatrician, documenting the presence of Lyme disease as well as a physical examination form from Dr. R, but did not recall when she h ad first reviewed these documents. January 25, 2 010 Tr. at 1124-11 27; February 8, 2010 Tr. at 15 47-1550, 1606, 1609. In f act, Dr. R’s report appeared to be the physical form parents are required to submit prior to school registration and the witness was unsure when or to whom it had been provided. Dr. H testified that there had been no discussion regarding C, PDD or ASD at the May 20 06 Section 504 meeting. Exhs. 17, 28. Neither the Parents nor their private evaluators raised this concern.

In terms of the consultative psy chological services denominated on the child’ s IEP of Novem ber 28, 2006, Dr. H indicated that this entailed a minimum of 30 minutes per month. In addition, she served as C’ s case manager.11 In furtherance thereof, she described frequent inform al and form al meetings with the tea cher as w ell as r elated service provi ders and Par ent to address and evalu ate t he educational m odifications, preferential seating, sen sory breaks and behavior plan which had been incorporated into C’s IEP. As an example, she noted that visual aids could facilitate the processing of auditory information which would ultimately support the child’s ability to foc us. Although the IEP did not artic ulate any spe cific social g oals, Dr. H opined that this had not been neces sary as the child’s social issues were being addre ssed th rough the ps ychological c onsultation and program modifications. February 8, 2010 Tr. at 1614.

Finally, referencing the occupational therapy report from Developmental Steps, the clinician observed that many of the self-regulation and m odulation issues articulated were consistent with the presence of and i mpairments of executive functioning within the frontal lobe. She did not view C’ s sensory issues in terms of adding that there were many disorders in which a sensory component presented as co-morbidity. March 8, 2010 Tr. at 1820-1822; Exh. R.

As a result of these proceedings, the CSE classified C as a child with a impairment. Dr. H opined that the child’s program was “very solid” in that it offered a great deal of support through both the behavior plan and the shadow aide as well as related services in speech and occupational therapy . January 25 , 201 0 Tr. at 1092, 1135, 11 51; Exh. 42. Although the behavior

The witness left for maternity leave in February 2007 and was temporarily replaced by Ms. X. plan had been an inform al “building le vel” plan, it was a useful tool for identify ing and addressing C’s day to day management needs. Due to the infor mality of the plan, however, Dr. H testified that she had not retained copies of the raw data within her files. In furtherance thereof, the witness opined that C’s dramatic improvements during the 2006-2007 kindergarten school year clearly evidenced the efficacy of the District’s interventions. Tr. at 1941-1943.

Dr. H did not participate in the CSE convene of May 2, 2 007, a meeting in which personnel first learned the child would b e attending the M School (hereinafter “M”) during the 2007-2 008 school year. Exh. 1. She did, however, believe the IEP generated by this convene was an accurate portrayal of C’s educational profile . She noted that although the child was demonstrating progress in core academic areas, he continued to exhibit interfering behaviors which precluded on task performance. Nevertheless, as a result of C’ s academic progress, Dr. H noted that the IEP’s reading goals we re enlarged in contem plation of the more sophisticated demands of first grade. Moreover, the witness believed the V report correctly target ed a multi-sensory approach for receptive, expressive and pragmatic language skills . It furtherance thereof, Dr. H noted that the resource consultant teacher would be responsible for reinforcing the child’s reading skills. With reference to C’s math goals and goals for fine motor coordination, the witness again testified that they were appropriate. Exh. 1 at 3. Although C’s behavior remained challenging, no fo rmalized social goals were incorporated into C’s educational planning. February 8, 2010 Tr. at 1618- 1619. The witness testified that she had been surprised by the Parents’ decision to enroll C at M , as the Parents had n ot included her in a ny discussions about non-public school placements. Ibid. at 1627. C spent first grade at M during 2 007-2008. Dr. H testified that she had no contact with the W. family until the end of the school year when she sought consent for an observation at M. January 25, 2010 Tr. at 1150. On June 8, 2008 Dr. H observed C in anticipation of the child’s Annual Review. The witness noted that she was permitted limited access to the child and was unable to observe him during unstructured periods such as lunch or transitions. February 8, 20 10 Tr. at 1639 . She did, however, have an opportunity to observe the child during a structured language arts program. In furtherance thereof, Dr. H reported that C had functioned successfully in the small, structured class she had observed. She believed he had made progress wit h his reading skills, but did not believe the M program was addressing C’s expressive and receptive language deficits. Ibid. at 1637.

On June 19, 2008 Dr.H again particip ated in an A nnual Review for C Ex h. 2. At this time, the witness noted that the input of M was p articularly important as School District personnel no longer had an opportunity to work with the child and observe him. January 25, 2010 Tr. at 1164.

Dr. H testified that she was unaware of the W. family’s opposition to the School District’s educational planning for t he 2007-2 008 school year and had, in fact, believed the Parents were pleased with C’s progress within District during the 2006-2007 school year. Nevertheless, the witness began to sense a burgeoning polarization in the latter half of the 2007-2 008 school year at M. She testified, “The only thing I knew was when it came time to plan for Annual Review for that first grade year, it felt challenging just in planning . . . getting information about C . . . Just that process was where I would say it was challenging. The collaboration and the support from the Parent around the process was difficult for me.” January 27, 2010 T r. at 1432. Ultimately, the CSE was not given access to observe C during the 2007-2008 school year. Jan 27, 2010 Tr. at 1407-1408; Exh. L.

As a result, t he CSE relied significantly upon the input of Ms. T and Ms. U in addition to teacher reports and report cards. Thus, in developing an assessment of C’s present levels of performance and achievement, Dr. H noted that standardized testing offered by M reflected average reading a nd math achievement. Exhs. 20, 2 1. In furtherance thereof, M personnel indicated that the child’s reading readiness skills had developed nicely and the child had experienced a positive year, especially following a new medication regi me. Nevertheless, both M and the District believed C continued to require a “high level of support” and recommended additional resource consultant periods along with individual counseling, a monthly psychological consult and a more extensive list of educational accommodations, including extended time provisions. Dr. H observed that the child’ s behaviors had apparently escalated at M during the 2007-2008 school year and opined that the absence of a sh adow aide within the M paradigm created a setting for C that required a great deal of self-management. Although M offered a small, structured classroom , C’ s social and emotional struggles warranted the assistance of a full-time shadow aide. January 25, 2010 Tr. at 115 4-1155. Dr. H again testified that n o one, including the Parents and their attorneys, raised the issue of or at the June 19, 2008 CSE. Ibid. at 1178-1179 Although the academic goals had been developed with the intense collaboration of M, Dr. H testified that she had developed the social-emotional goals to address C’s ability to follow classroom rules, cope with frustration and communicate with peers in a socially appropriate manner. As such, it was her hope that these specific goals would reduce C’s impulsivity, facilitate transitions and diminish the frequency of C’s tantrums. In sum , Dr. H opined th at the June 19, 2008 could provide a meaningful education for C January 25, 2009 Tr. at 1171, 1177. In preparation for the 2009-2010 school year, Dr. H again began the process of per forming an observation of C at M. In the spring of 2009, Dr. H spoke with the Parent to request her written consent. Thereafter, a second request, b y letter dated April 2, 2 009 was forwarded to th e Parents. Exh. 33. On April 28, 2009, C’s third grade IEP for 2009-2010 was developed and at the close of this meeting, the Parent again demurred when asked to sign consent. Dr. H testified that, ultimately, she did not receive a signed consent from the Ms. W. until Ma y 19, 2009, a delay Dr. H could not explain. Exh. 34. By email dated May 20, 2009, Ms. W. indicated that she would only consent to an observation if Carol Z, Ph .D. were present. Thereafter, in a series of e mails, t he Parent offered to coordinate the observation. January 25, 2010 Tr . at 1183-1186; Exh. 35. As had occurred the year before, Dr. H opined th at the Parents did not work cooperatively towards scheduling a timely observation. January 27, 2010 Tr. at 1434. Notwithstanding her documented requests for consent as early as April 2, 2009, an observation could not be organized at M until June 2009. Exhs. 33, 35, 36, 40. Ultimately, C was not observed at M until June 11, 2009 and the CSE meeting on April 28, 2009 did not include this material. Exhs. 3, Q. 37.

Dr. H noted that the CSE review of April 28, 2009 was conducted similarly to t he earlier meeting at M for the 20 08-2009 school year. It was, however, the opinion of M personnel at this time that C’s behavioral issues had escalated. Dr. H noted that th e child’s progress reports rarely demonstrated “an ability to appl y skills to independent work” (emphasis added) a nd described C as a student who generally required structure and/or teacher support to perform the correct academic or behavioral task. Exh. 23. While C was developing stronger language arts and math skills, his ability to function appropriately within the classroom was becoming more challenging. The witness observed that the child’s completion of homework assignments had become less consistent while C was struggling more and more with both educational and social demands which tapped into his own behavioral rigidities. January 25, 2010 Tr. at 1207-1209.

In response to the m aterials offered dur ing the Ap ril 28, 2009, the CSE continu ed to recommend the placement of a shadow aide. While many of the CSE’s recommendations remained the same, the IEP now incorpor ated study skills goals and group counseling rather th an individual therapy. Dr. H testified, in particular, that C appeared to have regressed socially during the prior year. She opined that this had developed, in part, from the lack of mainstreaming opportunities at the M School and its inability to furnish the direct psy chological support and consulta tion he coul d have received within District. Ibid. at 1295. On ce again, Dr. H noted that, had C been enrolled withi n District, she would have been r esponsible for training the shadow aide and developing strategies for successful transitions, navigating peer relati onships and coping with acade mic demands. As this had been implemented successfully during C’ s kindergarten y ear within Dis trict, Dr. H b elieved the use of a shadow aide was a valuable support. T he witness had no recollection of bullying incidents involving C while he was enrolled within District, nor could she re call Parental concerns regarding the manner in which the shadow aide intervention was provided. Januar y 27, 2010 Tr. at 1284-1286. She did, however, ack nowledge that the child was unable to “connect” ap propriately within a social context and that meaningful socialization was a definite goal.

In her ong oing communications with the Parent, Dr. H testified that Ms. W. made no indication that the child had recently been evaluated by Dr. Z or anyone else. As a consequence, the IEP generated by the April 28, 2009 convene did not reflect this updated information. Again, Dr. H testified there was no discussion at this meeting regarding C and th e presence of pervasive d evelopmental disorder or ASD. January 25, 2010 Tr. at 12 01. She did remark, however, in the cou rse of her relationship with Ms. W., that they had frequently discussed C’s Lyme disease and its neurological im pact upon his ability to learn, albeit not within the specific context of January 27, 2010 Tr. at 1414.

In sum, the witness opined that the IEP of April 28 , 2009 was a n appropriate educational plan for C She based this opinion upon the material supplied by M, reiterating that neither the Parent s, their independent evaluators nor private providers had offered any diagnosis or reference to pervasive developmental disorder o r Ibid. at 1218;1293-1294. Nevertheless, had this diagnosis been offered, Dr. H believed that the child ’s IEPs forth e 2007- 2008, 200 8-2009 and 2 009-2010 school years would have been appropriate as they , in f act, addressed m any of t he language, motor, behavioral and social issues consistent with a diagnosis of February 8, 2010 Tr. at 1708-1712. In contrast, Dr. H did not believe M could provide an appropriate education f or C as (1) it did not offer individualized speech and language intervention by a licensed speech pathologist (2) it did not provide dire ct psychological intervention or consu ltative services (3) it did not provide direct therapy services (4) a shadow aide could not be assigned to the child (5) M could not offer mainstreaming opportunities and (6) services could not be provided i n the least restrictive environment. Ibid. at 1713-1714.

On June 11, 2009 t he child was finally observed b y Dr. H at M. At the outset, M personnel had alerted Dr. H that it had been an uncharacteristically difficult day for the child.12 The witness testified,

“. . . I saw a very different child than I’d ever seen. I couldn’ t draw any conclusions because the teacher – first thing she said to m e is, ‘He’s really off. This is not how he usually is in school.’ So I

couldn’t draw conclusions from that, other than there was (sic) some shock. I wished I could have gone back during that school year again to have a comparison . . .” She added, “He was really out of control. So it was more silly, kind of agitated, disruptive.” March 8, 2010 Tr. at 1816-1817; Exh. Q.

In fact, Dr. H noted that the student was extremely restless, had difficulty transitioning and was off-task a great deal of time. During this time, th e witness observed that, even with “m ultiple staff members intervening,” personnel were having a difficult time managing the child’s behaviors. In sum, the witness testified that she had been shocked by what she had seen, an opinion shared by Dr.

Z. January 25, 2010 Tr. at 1224-1 225; Exh. C. At this tim e, M personnel suggested C had n ot been medicated that day . How ever, no one suggested a diagnosis of p ervasive developmental disorder or

ASD. The wi tness testified that she would have lik ed to reschedule a second observation, but due to the lateness of the school year was unable to do so. Ibid. at 1222-1223.

Lastly, the w itness then reviewed sever al evaluati ons which were furnishe d to the CSE during the summer of 2009. She not ed, however, that she ha d never seen these assessme nts prior t o the April

2009 CSE a nd had no r eason to believe they eve n existed. When provi ded with these private evaluations, Dr. H testifie d that she reached out to Ms. W. to schedule a social history and to discuss

C’s current status. Nevert heless, this offer was d eclined. February 9, 2010 Tr. at 1717. On further inquiry, Dr. H further not ed that Ms. K’ s Speech Evaluation of May 2009 provided no indication of

Rather the child continued to present with the same e xpressive, receptive and pragmatic language deficits as evidenced three years earlier. March 8, 2 010 Tr. at 1789; B-4. Given the absence of any reference t o by the multiple evaluators and consultants retained by the Parents, the CSE had not contemplated a diagnosis or cl assification of autism . Neither t he behavioral issues

The witness testified that she had spent approximately three periods at M.

enumerated within the M report card nor C’s scores on the October 2009 C onner’s Rating Scales translated into a concern that C was a child with Ibid. at 1842; Exhs. M, 21, U.

Amy J additionally testified on behalf of the District where she ha s been employed for 26 years as a speech and language pathologist. Ms. J is licensed in New York State and holds a Certificate of Clinical Competency from ASHA. The witness provided direct service to C during his pre-school and kindergarten years and has participated in both Section 50 4 and CSE meetings on hi s behalf. During this time, Ms. J’s intervention, on behalf of the District, was supplemented privately by speech therapist Gail K.

Reviewing Gail K’s speech evaluation of March and April 2005, Ms. J testified that as early as pre-school, C exhibited scattered language abilities with clear strengths in some receptive areas and deficits in word retrieval, syntax and pragmatic speech. Exh. A. Although Ms. J agreed with many of Ms. K’s findings, she not ed that her own recommendations reflected the District’s obligations t o provide F.A.P.E. while Ms. K, as C’s private therapist, recommended a program which would be maximally beneficial. March 10, 20 10 Tr. at 22 53-2254. During C ’s pre-school year, t he child received services twice weekly at school, once on an individual basis and once within a small group setting. Ibid. at 2011. C additionally received private therapy through Ms. K’s office. The witness observed that, in kindergarten, many of the additional recommendations suggested by Ms. K would be addressed by the child’ s reading or class room teacher and, therefore, the child did not require supplemental services. In general, the witness shared many of Ms. K’ s diagnostic conclusions, but differed with her in terms of the recommended intensity of intervention. Ibid. at 2296.

On March 7, 2005, the witness participated in a C SE meeting in which C was determined ineligible for special education services. This conclusion was derived from the speech and language assessment of Sall y Ward whose testing indicated normal cognitive abilities along with average articulation, comprehension and expressive scores. Exh. 4 at 2. Notwithstanding this, the witness disagreed with Ms. Ward’s characterization of C’s pragmatic skills as “normal,” having observed the child’s atypical and interfering behaviors. March 9, 2010 Tr. at 2086.

On or about June 20, 200 5, a Sec tion 504 convene was held at the request of the Parents. At this time, eligibility was conferred upon C based upon the report of Charles M.D. and C’ s diagnosis of Lyme disease. Exh. 5 at 1. In furthe rance thereof, C’s related services, and in particular speech and language therapy, were restored for the 2005-2006 school year. Tr. at 2090-2091.

On November 1, 2005, C articulated from CPSE to CSE status and the child’s entitlement to a Section 504 Accommodation Plan was confirm ed. Exh. 6. During t he 20 05-2006 school year, however, C remained in p re-school, deferring kindergarten until the following year. Nevertheless, Ms. J observed that C continued to make poor eye contact and exhibited difficulties with reciprocal speech, an opinion shared by Ms. K. Exhs. A, 10, 11. Neither she nor Ms. K, however, distinguished these characteristics from the poor pragmatic language and immature speech patterns of many four or five year old children. March 10, 2010 Tr. at 2281.

In April 2006, C was again evaluated by Ms. K. During this additional pre-school year at Q, a private pre-school program, Ms. K continued to treat C privately for “a moderate level of impairment.” Exh. 11 at 6. Despite his cognitive strengths, Ms. K reported the on-going presence of linguistic impairments with mixed expressive-receptive and auditory processing deficits. In response, therapy was, in part, directed towards supporting listening skills through reciprocal conversation, eye contact, turn-taking and topic maintenance. Consistent w ith Ms. K, Ms. J noted i n her “End of Year Report for 2005-2006” that despite C’ s progress, he continued to require speech and language intervention. March 10, 2010 Tr. at 2350-2351; Exh. 43.

On May 24, 2006, the wit ness participated in anot her Section 504 meeting for C Exh. 7. Although Ms. J had limited recall of this m eeting, she was in agreement with Ms. K’s reco mmendation that C be assigned t o an individual aide during his kinde rgarten year. Ibid. at 2107-2109. Although C was additionally r eferred back to the CSE, Ms. J opine d that C was suitably pla ced in a mainstream classroom as a Section 504 student because he was largely receiving the same services he would have received had he been classified. In f act, she noted that C had begun generalizing so me of the pragmatic skills developed in speech sessions to his mainstream classroom, an opinion echoed by his pre-school teacher, Ms. Gelman. As such, Ms. Gelman had reported C was continuing to make positive strides towards expressing his feelings appr opriately wit hin t he classr oom. Ibid. at 2385; Exh. 7 at 3.

In October 2006, C entered kindergarten within District and was evaluated by Ms. J. At this time, the child was presented with the TOLD-P:3 and PPVT III. 13 Despite many scores falling within average, above averag e and even h igh-average r anges, the wi tness noted t hat test scores did “not accuratel y reflect the qualit y of C ’s expressive language skill s. C clearly exhibits diff iculty with his self-generated daily language skills, especially in the absence of visual support.” Exh. 10 at 5. The report further noted, “Although C may understand something, he demonstrates word retrieval and languag e structure difficulties which interfere with his ability to clearly express his ideas. He also demonstrates difficult y with his overall prag matic language skills, such as turn taking, topic maintenance, interpersonal ey e contact and reciprocal language skills.” Marc h 10, 2010 Tr. at 2303. Thus, while C frequently received test credit becau se he understood the task offered, his responses were clumsy, immaturely formed and poorly articulated. Ibid. at 2304-2305.

Significantly, the child’s poor pragmatic language skills persisted. In her “End of Year Report 2006- 2007,” Ms. J reiterated her concerns about C’s rigiditie s, both cognitive and behavioral, notwithstanding his achievement of other speech and language goals. Exhs. 44 , 45. Again, Ms. J’s assessment of progress was not specifically based upon standardized testing, but reflected a cumulative review of the child ’s work folder during the school year. Ibid. at 2383-2384. Reviewing C’s goals during his kindergarten year, the witness acknowledged that none of them specifically addressed pragmatic speech. Nonetheless, M s. J testified that these issues were coll aterally incorporated into her speech sessions and referenced in her “End of Year Report.” Exhs. 44, 45. The witness reiterated her view that C ha d not presented as a child with although he clearly demonstrated attentional and language deficits. March 10, 2010 Tr. at 2308.

On November 28, 2006, special education status was re-conferred upon C who was now classified in kindergarten as speech impaired. Exh. 8. At th is time, the CSE continued its recommendation for a mainstream class although C was additionally assigned to a 3:1 aide. A range of educational accommodations and related services were incorporated into the child’ s IEP including a monthly speech and language consultation with the child’ s teacher. Beyond this, the recommendation remained the same. Although C was clearly demonstrating negative behaviors associated with frustration tolerance, on-task performance and direction following, the IEP reported

Test of Language Development and Peabody Picture Vocabulary Test

In actuality, C was the only child assigned to the aide. that, “He does not appear t o require direct intervention from a special education teacher at this time.” In contrast, the document later further stated, “He requires significant program modifications in order to achieve success in the classroom.” Exh. 8 at 3. Ms. J testified that she agreed with the IEP’ s appraisal of C’s needs an d opined that C had made progress towards his speech and language goals. March 9, 2 010 Tr. at 21 19- 2 122. Ms. J further noted that t he Parents had established a positive relationship with C’ s kindergarten teacher and ha d worked well with her during the school year. March 10, 2010 Tr. at 2367.

On May 2, 2007 the CSE met to develop an educati onal plan for C’s first grade y ear although Ms. J learned that the child had been privately placed at the M School for the upcoming 2007-2008 school year. Exh. 1. The witness had a lim ited recollection of this convene, but did recall that C had done a “nice job” within her highly structured speech room. Referencing the educational acco mmodations articulated within the IEP, Ms. J noted that, within the context of her own services, she had employed all of the m odifications described. The witness a dditionally revie wed the speech goals which had been developed for C, noting that these could be addressed through leveled materials.

She did not recall any statement in which the P arents reported that “kindergarten has been an excellent year for C and that the combination of the teacher and aide has been a positive for him this school year,” nor could s he comment upon the efficacy of t he aide. The witness testified that she agreed with the IEP’s recommendations and opined th at the public placement within District was appropriate. Notably, the monthly speech consultation, as had been previously recommended on November 2 8, 200 6 was removed although the record does not reflect a rationale for this. Nevertheless, Ms. J opined that th e May 2, 200 7 IEP was appropriate. As such, she believed that C did not require a more restrictive environment as his educational profile was similar to those of other children at the District’s F School. March 10, 2010 Tr. at 2137-2140.

On June 19, 2008, Ms. J again participated in th e development of an IEP for C, reiterating her positive view of its appropriateness. March 9, 2010 Tr. at 2160-2161. Although the witness had a limited recall of this meeting, Ms. J concurred with the CSE’ s recommendations for additional support services in the form of enhanced resource room consultant hours, consultant and individual extended year services, test accommodations and re-institution of monthly consultation. Ibid. at 2151-2153; Exh. 2.

Addressing the April 28, 2009 CSE convene, Ms. J again testified that, based upon C’ s needs, th e CSE had generated an appropriate IEP for C Ibid. at 2166-2171; Exh. 3. As the child was no longer enrolled within District, however, Ms. J had deferred to M personnel, particularly in the area of the child’s goals. Thus, the child’s goals were supplemented with vocabulary goals designed to compensate for C’s word retrieval issues. Beyond this, Ms. J testified that many of the student’s third grade goals were identical to his second grade goals, but would be presented at different levels of achievement with more sophisticated methods of presentation. Ibid. at 2171-2175. Lastly, the witness noted that although the child’s formal speech goals did not always reflect social objectives, these were always addressed incidentally during group sessions through problem solving and attention to group dynamics. March 10, 2010 Tr. at 2387- 2388.

Although the witness agreed with the I EP’s goals, she believed these goals should be addressed through the expertise of a li censed speech and language professio nal. In furtherance thereof, she acknowledged that she was unfamiliar with the program at M but believed an enriched language-based program could not generally offer the expertise of individualized services rendered by a certified speech and language therapist. March 9, 2010 Tr. at 2175-2182.

Finally, Ms. J observed th at the issue o f had never been raised with resp ect to C Although she had previously worked with autistic children, C had not presented with si milar issues, nor had the Parents presented evidence to the contrary. She did not recall any discussions from the Parents or M personnel suggesting the presence of nor had she been apprised of Dr. R’s report. Ibid. at 2188; Exh. 18.

In comparing her own evaluations along with those o f Ms. K, beginning in 2005 through Ms. J’s last re-evaluation dated November 20, 2009, the witness observed that C’ s weaknesses persisted. Although C had demonstrated some gains in the area of direction following, he continued to struggle with expressive speech and distractibility. March 10, 2010 Tr. a t 2332-2336; Exhs. X, B-4. The witness opined that these issues, however, were not necessarily unique to a child with ASD , noting that children with attentional and language issues might evidence similar profiles. Ibid. at 2342.

Carol G is a New York State certified Special Education Teacher and AIS/Reading Recovery teacher who additionally testified on behalf of the Distri ct. She is additionall y certified in Pre venting

Academic Failure and has been trained in the Orton-Gillingham protocol. Ms. G observed C in his pre-school program, conducted a formal assessment of him and participated in various CPSE, 504 and

CSE meetings. She has n ot worked with the child formally. March 11, 2010 Tr. at 2459-2460. She did not recall reviewing any documentation from Dr. R regarding the presence of PDD, nor could she recall any d iscussions regarding a con nection between C and th is diagnosis. April 8, 20 10 Tr. at

2676-2677. Similarly, C’ s deficits in pragmatic speech, expressive/recept ive language and e ye contact did not automatically signal the presence of ASD. Ibid. at 2691.

The witness described the resource consultant model reco mmended for C during the 2007-2008

school year, a y ear in whi ch she served as the Distri ct’s first gr ade resource consultant. She noted that there were generally no more than six to ei ght children in a class, although class enrollment was actually capped at fifteen. Students receiving reso urce consultant teacher serv ices generall y reflect the lowest 20 % of first grade achievem ent. Apr il 8, 2010 Tr. at 2700 . Usi ng leveled, c urricular materials such as R ecipe for Reading 15 and Reading Recovery , Ms. G te stified that multi-sensory instruction would focus on reinforcing phonic s, re-reading, monitoring, cross-checking for information and using contextual clues in a sy stematic, sequenced structure. In this m anner, bot h comprehension and decoding strategi es are presente d. Students are test ed prior to ente ring her program and are subsequently re-tested three ti mes per year, utilizing standardized measure such as the Reading Recovery Observation Survey or the non-standardized Gallistel-Ellis Test of Code

Awareness. April 8, 2010 Tr. at 2464, 2468-2469, 2692.

The witness observed that within the re source consultant model, a student might be placed with both classified and non-classified students identified thro ugh Academic Intervention Services (hereinafter

“AIS”) as well as those with 504 design ations. Di fferentiated instruction is offered through leveled materials, sub-grouping and partne ring of students. Services, however, are not offered in math fo r first grade AIS students. March 11, 2010 Tr. at 2611-2612.

On March 7, 2005 Ms. G participated in both CPSE and CSE meetings for C as it was anticipated that the child would articulate from pre-school to school age status. Instead, C’s Parents enrolled him at Q

for an additi onal year. While C was deem ed in eligible for spe cial education services based upon average test scores, the Parents initiated a 504 referra l. April 8, 2010 Tr. at 2707-2708; Exhs. 4, 46.

Recipe for Reading is an Orton-Gillingham, phonics-based reading protocol. April 8, 2010 Tr. at 2688. Thereafter, C was certified as a 504 s tudent on June 20, 2005 based upon t he presence of L yme disease and t he various co -existing neurological sy mptoms evidenced by the child. Exhs. 5, 47. On November 1, 2005, the witness participated in a seco nd 504 convene. Exhs. 6, 48, 49. At this ti me, the 504 Accommodation Plan was supplemented with additional program modifications directed at both behavioral and attentional issues.16 March 11, 2010 Tr. at 2512.

On May 24, 2006 the Section 504 team again convened. Exhs. 7, 51. In preparation for this meeting, Ms. G conducted an observation of C at Q. Exh. 5 1. Within a larger class of 18 children, the witness described C as, “a high-energy child with some attentional issues, so me hyperactivity . He had difficulty sitting still . . . he accidentally bumped into another little girl . . . and he said sorry and he kissed the spot that he hit . . . So it wasn’t intentional sort of aggressive behavior, but just a lot of . . . fidgety.” Tr. at 2528. Ms. G describe d a child wh o appeared to relate well with his pe ers, but demonstrated resist ance to transitions a nd acade mic tasks that might be difficult for him , b ehaviors consistent with those of ADD children.

In preparation for a CSE convene on November 28, 20 06, Ms. G co mpleted a formal Educational Assessment of C which included evaluation on the Kauf man Assessment Battery for Children (hereinafter “KABC”). Exh. 13. The witness reported that the child approached the testing process in a cooperative manner, behaved we ll and exhibited a n upbeat, pos itive dem eanor. C yielded scores ranging from below av erage in ma thematics to low average ranges in reading/decoding and, significantly, exhibited emergent reading skills. Ms. G testified that the student knew his letters, both upper and lower case and could offer some phonemes. While he did not recognize many sight words, the witness opined that this was not unco mmon for children this age. The witness noted that only certain sub-tests of the KA BC had been ad ministered by her as these wer e the only ones appropriate, given her role as special educator and C’s age.

Although she believed the child was generally making slow and steady academ ic progress, he continued to struggle with language-based or conceptual math, notwithstanding average scores on the KABC. Exhs. Y, 13. Nevertheless, M s. G noted that as a pre-school hol d-over, C’ s scores might have been artificially depressed due to t he lack of instructional opportunities offered in kindergarten. In support thereof, she noted that private measures of his perfor mance IQ had been tested at the 97th i.e. visual prompts and support during transitions. Exh. 6 at 2. percentile. March 11, 2010 Tr. at 2536-2537, 2549; April 13, 2010 2859- 2861; Exh. 14 at 9. O n November 28, 2006, an IEP was de veloped for the child. The witn ess had a limited recolle ction of the events su rrounding this CSE convene, did not re call any Parental objection s to either the child’s classification or descriptions of C ’s social skills and did not believe Dr. R’ s report had been addressed. April 8, 2010 Tr. at 2738-2741, 2759-2760; Exhs. 8, 52.

In her notes of the Novem ber 28, 2006 meeting, th e witness again noted that the child’s speech and language scores were significantly be low average. Similarly, it was noted that despite strong cognitive scoring, functional abilities were co mpromised by deficits in work ing mem ory and fine motor coordination. 17 Ms. G testified, “. . . you’re trying to write a sentence, it’s difficult to hold in your head, especially if you’ve got OT issues, you can’t hold onto the message and . . . it’s a cognitive task to do both, to form the letters and to rem ember the message and it’s difficult to do two cognitive tasks at once. That’s one example of how it can impact a student in the classroom.” March 11, 2010 Tr. at 2547.

In contrast, Ms. G believed the child’ s strengths were clear. C’ s kindergarten teacher, M s. P, had specifically observed that C engaged appropriately with his peers and appeared well-liked. Nevertheless, in contrast with these remarks, Ms. G acknowledged that her pre-meeting notes with Ms. P of this same day indicate, “Behavioral issues till off - a problem even with a 1:1 aide.” April 8, 2010 Tr. at 2742-2748; Exh. 53. On cross-examination, Ms. G indicated that certain issues were raised in the pre-meeting between teachers, evaluators and psychologists, but not addressed with the Parent during the CSE meeting of November 28, 2006. Ibid. at 2753-2754; Exhs. 53, 8.

Given the chi ld’s abilities, Ms. G opined that the IEP generated on Novem ber 28, 2006 accurately reflected both the cognitive and beha vioral n eeds of C as well as the interventions necessary to facilitate meaningful educational progres s towards his academic go als. March 1 1, 2010 Tr. at 2550- 2554.

On May 2, 2007, Ms. G attended an Annual Review for the upcoming 2007-2008 school year. Exhs. 1, 53. Although the witness opined that C had had a successful kindergarten year, he continued to require the services of a 3: 1 paraprofessional while resource consultant teacher was now added to his

Private testing on the WISC IV had yielded a 1% score in the area of working memory. Exhs. 52, 14. list of speci al education programs. In contrast, accommodations for a sensory diet and a positive reinforcement behavior plan were eli minated. Despite the assignment of a shadow paraprofessional, the May 5, 2007 IEP did not include provisions for counseling although a ps ychological consult wss recommended. Exh. 1 at 2. As she had previousl y testified with regard to o ther school years, the witness opined that the CSE generated a n appropriate IEP for C’ s first grade y ear. She noted that C was a bright child who felt com fortable with his general education classroom and was dem onstrating academic progress. March 11, 2010 Tr. at 2561-2562; 2588.

The witness noted that had C attended the F Sc hool during the 2007-2008 school year, she would have been t he child’ s resource consultant teach er. Ibid. at 2562. Ms. G described various instructional strategies in which C’s pr ogram modifications m ight be applied t o her resourc e room activities, including the us e of short breaks, visu al aids, multi-sensory presentations, checking for comprehension and preferential seating to facilitate cuing and redirection. Again, the witness testified as to how she would utilize the peer-reviewed protocol of Recipe for Reading and Reading Recovery , including their provisions for ongoi ng assessment an d mastery of fluency and com prehension. Ibid. at 2565-2587. Lastly, she noted that she believed the child would be successful with the May 2, 2007 IEP as “C was very smart. He had a large fund of knowledge . . . and he was eager to learn. He had a lot of basic early reading prerequisites in place. And in past experience with children who are similarly developing, its (sic) worked very well. . .” April 8, 2010 Tr. at Tr. at 2763.

Ms. G testified similarly with regard to t he CSE convene of June 1 9, 2008. Exhs. 2, 54, 1, Z. As C had not attended classes within District during the 2007-2008 school year, M personnel participated in the formulation of C’s upcoming second grade IEP. Given the District’s limited knowledge of C, Ms. G testified that the CSE had largely deferred to their recommendations, adopting M’s suggestions for services and goals to the extent the District could replicate them. This included the intensification of reading and math supports as well as the development of new writing and math goals and a recommendation for extended year services. April 8, 2010 Tr. at 2781-2785, 2786-2787. Based upon M’s contribut ions, Ms. G opined that t he IEP was appropriate. Ibid. at 2599, 2 801; Exh . AA. She noted, however, that the number of resource consultant hours had in tensified as had t he pupil: personnel ratio now recommended. Likewise, individual counseling, an extended school year an d additional educational/ testing accommodations were now necessitated by virtue of the greater academic demands placed upon the child.

In sum, based upon her observations of the child and her participation in various educational planning meetings for C, Ms. G opi ned that she had no con cerns that C ha d ASD. Rather, she believed th e child presented as a typically child. She observed that he behaved socially, appeared to enjoy the classroom, had friends and related well to her. Ibid. at 2627.

Deborah I additionally testified on behalf of the Di strict. Ms. I i s a special educator assigned as the Learning Center teach er for grades o ne through fi ve, a position she has held since 2003. She is certified by New York State in both regular and general education. She is, moreover, a certified level one Wilson trainer with additional level two training. April 14, 2010 Tr. at 2890-2896. As part of her professional duties, Ms. I adm inisters standardized testing and teaches reading utilizing Orton- Gillingham, Wilson, Pre venting Academ ic Failure, Recipe for Reading, Primary Phonics and Comprehension Tool Kit methodologi es, among others. Ibid. at 2900-2902. The witness testified that she is additionally responsible for t eaching wr iting and, towards that end, has utilized a Basi c Writing Skills program developed at M where she h as additionally taken traini ng in the Preventing Academic Failure protocol. Ibid. at 315 3. Finally, Ms. I testified that she av ails herself of two math programs at t he Learning Center - Exp ressions, a multi-sensory, hands-on m ath program developed through Houghton-Mifflin as well as Everyday Math. In addition to the assessment pr otocols offered within these specific program s and her own running records, Ms. I is additionally responsible for administering nationally-normed tests such as the Gates and the Basic Reading Inventory tests in addition to the New York State ELA and math examinations. April 14, 2010 Tr. at 2922-2925. A s the resource consultant teacher, it is, furtherm ore, her responsibility to ensure t hat the educational m odifications and ac commodations reco mmended for a child are imple mented w ithin the general educa tion classroo m. Ms. I testified that it was her responsibility to instruct t he general educator w ithin the classroom as to the manner in which these modifications and test accommodati ons would be de livered to C She testified at length ho w these interventions would be utilized with C, noting that many of these interventions were routinely applied with mainstream students. Ibid. at 3085-3086, 3091-3092, 3103.

Ms. I did not know C, had never observed, evaluate d nor taught hi m. Her knowledge of the student was based upon i nformation shared at the April 28, 2009 CSE meeting. Tr . at 3125. Other t han the child’s first grade IEP and a report card from M, Ms. I could not recall any other documentation upon which she based her opinion. April 14, 2010 Tr. at 3137. She stated, “The first I ever heard of C was at that [April 28, 2009] meeting.” Ibid. at 3159. T he witness had no recollection of Dr. R’s report, but testified that, had this been available, C’ s educational programming would have been t he same, adding that an observation would have been help ful. April 14, 2010 Tr. at 3144 , 3274 ; Exh. 18. Likewise, Ms. I testified that it woul d have been helpful if she had adm inistered the Wechsler Individual Achieve ment Test (hereina fter “WIAT ”) to C as she does y early with all of her special education students. This had not occurred, however, as she believed the Parents had withheld their consent. April 15, 2010 T r. at 3282-3283. In sum, based upon t he anecdotal information provided by M person nel as well as the child’s I EP and re port card, Ms. I opined that t he April 28, 2009 IEP was appropriate. With regard to whether M personnel concurred, Ms. I testified that she did not know whether they had been specifically asked for their opinion. April 14, 2010 Tr. at 3135-3137, 3173.

The witness testified that she had participated in the April 28, 2009 CSE for C who would have been assigned to her as his resource consultant teacher during the 2009-2010 school year. April 14, 2010 Tr. at 2942-2943; Exh. 2. Describing the resource consultant classes, Ms. I noted that the y generally had no more than six children enrolled although so me classes only had four. Most of the students were drawn from the general education population, although t here were so me 504 students and perhaps one classified child. Ms. I opined that C’ s present levels of performance as set forth on the IEP of April 28, 2009 were consist ent with the profile of students assigned to her as a resource consultant teacher. Ibid. at 2945. Given this information, and in particular, C’ s standardized test scores, the witness did not believe C required the more restrictive service s of resource room, but could be adequately served with resource consultant services. Ibid. at 3167-3173.

Regarding C’s long term objectives during the 2008-2009 school year, Ms. I testified that she and the general education teacher would be jointly responsible for the IEP’s reading, writing and m ath goals, coordinating curriculum a nd sharing information with each other. In this m anner, both C and his peers would be presented with identical conceptual information, but would be assigned to levele d practice materials. April 15, 2010 Tr. at 3252-3258. As such, the witness described a range of multi-sensory techniques she would employ in order to develop a larger fund of sight words. She noted that phonics lessons would reflect Wilson protocol, util izing cuing words, word packs and a magnetic tile board pairing sound associations with pictures. W ithin this i nstructional paradigm , senten ces ar e modeled so that students learn to read ph onetic elements usin g appropr iate correct fluency and phrasing. A pril 14, 2010 Tr. at 2959- 2960. With regard to writing, students initiall y learn about basic sentence co mponents. As their skills build , sentence length and complexit y is increased. Ultimately, students learn to organize their thoughts by topic in a logical sequential order.

Finally, Ms. I testified that the Expressions curriculu m was used to teach math skills. In this manner, quantitative topics were initially discus sed during “m ath talk” time. Skills were, thereafter, taught visually and through the use of manipulatives, number lines, place-value blocks, counti ng cards, acting out and ga mes. T he witness al so addressed th e use of “sprints” to re inforce num ber fa cts. Finally, the witness de scribed the manner in which word problem s were c ategorized and demonstrated concretely. In this manner, previously taught material could be reinforced with resource consultant services or, in the alternative, material could be pre-taught before being presented formally in C’s general education classroom.

Having taught second and third grade ge neral education classes for several y ears, Ms. I testif ied that she was very fam iliar with the second grade daily schedule. In furtherance thereof, she described at length the t ypical day in District which would include ELA, math and writing blocks al ong with special periods of art, m usic, library or physical education. She noted that, even w ithin the mainstream environm ent, guided reading techni ques and differentiated instru ction were offered in core content areas while other students might be assi gned to structured independent work. Likewise, classrooms are equipped with sm art-boards and pe rsonnel are encouraged to present material in a multi-sensory fashion. April 14, 2010 Tr. at 3034, 3049.

On April 28, 2009, t he witness attended a CSE convene for C Exh. 3. At t his time, M personnel attended via telephone and the Committee was furnished with a current report card. Exh. 23. Based upon information provided b y M, t he CSE developed goals and recommendations for t he child. Referencing the child’s report card, Ms. I testified, “Well, we developed the goals based on this, and this mirrored what the teacher reported so that the goals were what came right from this document . . . We developed the goals based on what – the anecdotal information which came from this document . . . . The teacher, I suspect, was looking at the report card as she reported how he was doing. And so, you know, for one area, the reading area, she said that he didn’t --the silent e was a phonetic skill that he had not mastered. And so, we looked at that and developed a goal for it, the silent e concept . . . . And we did that for all o f the goals.” April 14, 2010 Tr. at 3060-3061. Ultimately , the witness testified that C had either met many of his reading goals or had criteria for mastery upgraded during the 2008-2009 school year. April 15, 2010 Tr. at 3237-3244. Michelle P testified last on behalf of the District. Ms. P is retired from the District, but was employed as C’s kindergarten teacher during the 2006-2007 school year. The witness is certified in both special and general education. December 13, 2010 Tr. at 5709. She described a class in which approximately twenty students were enrolled; staffing included one teaching aide and a full-time paraprofessional, Alaina assigned to C Ibid. at 5710-5711. In furtherance thereof, Ms. P testified that she was responsible for training th e aide, although Ms. received additional in-service training from the school psychologist. As such, the aide was offered strategies for facilitating transitions, prompting both verbal and non-verbal behavior18, practicing skills a nd m ediating social interactions. Ibid. at 5806-5807, 5817- 5818. The witness recalled C as a very motivated student whose transition and behavioral issues were easily defused b y tapping into his diverse interests. December 13, 2010 Tr. at 5711. She could not recall any specific references to within the child’s file, but was aware of C’s Lyme disease. Ibid. at 5798-5801, 5840-5851.

Ms. P testified that she had utilized a multi-sensory approach to reading during C’s kindergarten year, utilizing a range of materials to reinforce visual , au ditory and ki nesthetic memories. Alth ough she did not know the specifi c reading methodology utilized by Ms. G, the witness indicated that she frequently consulted with the resource consultant teacher and shared materials. Ibid. at 5847-5848.

Referencing C’s report card for the 2006-20 07 school year, Ms. P reported that, apply ing specific criteria generated by the District, C ha d made significant academic progress throughout the year in every area of the curriculum . Ibid. at 5727-5730 , 5762; Exh. 39. Nevertheless, he required frequently “reminders” from his aide, inter ms of following classroom/social protocol. Thus, in her “end of year summary,” the witness indicated that C’ s social and emotional adjustment continued to need improvement, notwithstanding significant progress in the areas of achievement, aptitude and motivation. Exhs. 72, 73. More concr etely, based upon the language arts portfolio maintained over the course of the school year, C was able to sight read 24/25 words, identify beginning and ending consonants and write his name with clarity. December 13, 2010 Tr. at 5755; Exh. 73.

Following the commencement of the C’s kindergarten year, Ms. P testified that she had participated in a CSE review on November 11, 2006. The witness agreed that the comments attributed to her were i.e. modulating the volume, intensity and content of C’s social speech. an accurate reflection of C’s classroom performance, but did not recall why the CSE had been convened. Tr. at 5848; Exh. 8 at 6.

The witness testified that t he Parents ha d been pleased with C’s kindergarten experience and could not recall any expressions of dissatisfaction on their behalf. Ibid. at 5763-5765, 5 772-5773. Acknowledging that the most important element of kindergarten reflected the child’s abilit yto function appropriately within the classroom structure, she nevertheless recalled her comments during the May 2, 2007 CSE convene. Ms. P stated, “He is sometimes so engrossed in a project that he cannot be interrupted until he is finished. C could become unsettled by various situations, such as transitions within the classroom, unexpected changes in routines or items that are out of order; e.g., if a classmate places a marker in the wrong cup at this work table. . . The shadow aide helps support C through the many transitions that occur within his school day. . . B. W. can be easily distracted and requires refocusing throughout the day .” December 13, 2010 Tr. at 5762; Exh. 1. Thus, notwithstanding C’s significant behavioral progress, Ms. P opined that C continued to require a 1:1 aide testifying, “He was doing so well with her [ Ms. Cuglietta], and he still was not where h e should be . . . like t he other kids perhaps. But it was just part of his success in kindergarten, and I just wanted it to continue.” Ibid. at 5822.

In sum, the witness did not recall whether the child had been bullied, and had no specific re collection of asking Ms. W. to acco mpany C on school trips. Ulti mately, given the special educatio n supports incorporated into the child’ s educational programming, Ms. P opined that the May 2, 2007 IEP was appropriate. December 13, 2010 Tr. at 5768, 5773-5774, 5766.

The Parents’ Case

Gail K testified as lead witness on behalf of the Parents. Ms. K is a speech and language pathologist who has known C professionall y since evaluating him in 2005. Exhs. 11, A. Based upon her April 2005 Speech and Language Diagnostic Progress Report which included both testing and clinical interviews, Ms. K determined that C was cognitively intact, but ha d a moderate language deficit, presenting with difficulties in word retrieval, syntax and self-generative language and pragmatics. Referencing C’s trem ors, sensory issues, social inappropriateness, limited eye contact and poor discourse skills, the witness opined that the child “looked neurological.” Given the neurological impact of Lyme disease, however, Ms. K was reluctant to place C on t he autism spectrum, although many of C’s symptoms were consistent with this diagnosis. June 25, 2010 Tr. at 3913-3914.

On June 15, 2005 Ms. K participated in a CPSE meeting at the request of Ms. W. At this time, both the Parents and Ms. K believed C continued to demonstrate a clear need for ongoing speech therapy,19 notwithstanding the District’s opinion t o the contrary. Ibid. at 3918- 3919; Exh. 4. In contrast, District therapist, Sally reported average to above average scores on the Pre-School Language Scale -3 and believed C’s behavioral issues, in fact, were co mpromising the child’s communication skills. Thus, C’ s speech skills were a function of his distractibility and impulsiveness, rather than manifestations of speech disability. October 28, 2010 Tr. at 5182, 5190- 5191; Exh. 58 at 3. Addressing Dr. R’s report at this time, Ms. K agreed that C exhibited atypical communication skills, notwithstanding many of the child’s strengths. The witness indicated that speech services were, thereafter, continued through a 504 Accommodation Plan, although not with the intensity she believed necessary. As a result, Ms. K began seeing C privately to supplement the District’s recommendations.

The witness indicated that she treat ed C consistently for approximately two years and re-evaluated him in the spring of 2006 at which time the Section 504 Committee reconvened. Exhs. 11, 7. At this time, C continued to demonstrate an “uneven profile” with significant areas of deficit. Although the child’s at ypical language, sensory and attentional issues were consistent with PDD, she did not believe C required the educational supports more commonly associated with a classification of autism. She testified, “Because being on the continuum f or autism oft entimes, you know, educational supports would include like a behavioral type of approach that’s more intense, 40 hours of ABA therapies and things like that are available, more traditional things that are going on f or children with autism. And he didn’t fit that profile of need. . . ” Tr. at 4050-4051.

On cross-examination, the witness acknowledged th at neither her April 2005 Diagnostic Progress Repo rt nor the May 2006 Speech and Language Progress Note had r eferenced the ter ms ” disorder,” “atypical characteristics,” or any thing r elated to the autism spectrum. June 25, 2010 Tr. at 4069;

The witness specified that her recommendation for speech therapy was specifically a recommendation that services be provide by a speech/language pathologist or teacher of the speech and hearing handicapped. Tr. at 4071-4072; 4083. Exhs. A, 1 1. She sim ilarly testified that her May 2006 report, a r eport which i s silent regarding Dr. R’s diagnosis, described the child as an “engaging little boy with a cheerful disposition” addi ng that he was “an active co mmunicator,” albeit ineffective, “with a good sense of hum or.” Tr. at 4071, 4076; Exh. 11 at 1. Finally, Ms. K ack nowledged that, despite her concerns, she had not referred the child to a neuro-develop mental pediatrician or psychologist to pursue the co mponent of C’s profile, testify ing, “. . . his language was so im paired when I saw him , th at there was a p eriod of intervention to see how he developed to see whethe r or not, in fact , the characteristics I saw i nitially were more due to his language deficit; and that as language emerged would it look more like an or expressive/receptive or was it more because there we re atypical characteristics. And I saw it; the flags were up; but you know I felt that he needed in tense intervention t o then go further wit h that.” October 28, 2010 Tr. at 5284-5285.

Ms. K concurred with the Dr. R’s diagnosis of but did n ot articulate this within her form al report based upon her own “judgment call”. In furtherance thereof, she noted that t he child’ s problems were primarily language-based and, give n C’s speech and cognitive strengths, a classroom for more impaired autistic children would not serve C’s needs. Although C would be entitled to enhanced services with an classification, Ms. K believed the additional pull-out sessions would exacerbate the child’ s transition issues. June 25, 2010 Tr. at 3945-3048. Thus, she testified, “I didn’t include it in my report as critical to his educational needs from the language point of view. I felt his language issues were critical enough.” Ibid. Nevertheless, Ms. K recommended the assignment of a 1:1 aide as C’ s behavioral issues per sisted and, in particular, the witness expressed concern that the child might strike another child who inadvertently i nfringed upon C’ s personal space. Ibid. at 3953.

At the outset of the 2006-2007 year, C initially functioned successfully in kindergarten. Nonetheless, Ms. K indicated that she was soon apprised by Ms. W. that the aide was not being utilized appropriately. Rather, it appeared that Ms. Cuglietta was managing the child’s behavior as opposed to actively intervening and instructing a t teachable moments. As a result, Ms. K expressed concern that C’s self-esteem would be compromised by the constant ad monishments evoked by his persistent non-conforming behaviors.

More substantively, Ms. K testified that C was not retaining information due to his phonological processing issues, his inability to attend to and learn from language. As such, the witness was concerned that C’s inability to organize linguistic information would interfere with the development of reading skills, placing him at high risk. Ibid. at 3959-3961. Given C’s difficulty with transitions, Ms. K further opined that the District’s pull-out model was inappropriate for C

At some point during the 2006-2007 school year, the Parents expressed their dissatisfaction with the District’s program to the witness and, as a result, Ms. K identified both M and N as alternative educational placements. While Ms. K observed that M did, in fact, accept children, she advised the Ws. that M did not accept children with significant behavioral issues. Noting that she “ knew the type of children that the y accept there and what they’ re looking for, and I had concerns because C does have atypical characteristics, has conversational limitation and I didn’t know whether that would exclude him from their process,” she nonetheless saw no reason to exclude C’ s diagnosis, adding “he i s what he is.” June 25, 2010 Tr . at 4047-4051. Thus, notwithstanding the child ’s management issues, Ms. K testified that C’s language issues, including literacy acquisition, reading and educational supports, remained C’s most significant areas of deficit. Ibid. at 4 054-4057. Ultimately, it was her opinion that M was an appropriate placement for C, notwithstanding their lack of non-integrated and individualized related services such as speech and language therapy or counseling for C Moreover, Ms. K believed the in timate class sizes militated against the need for a 1:1 aide. October 28, 2010 Tr. at 5201, 5206-5210, 5229-5230.

C attended M for two years, a period of time during which Ms. K had minimal contact with the child. In the Spring of 2009 the witness testified that she performed a third evaluation of C Advised by the Ws. some time prior to April 6, 2009 that C had been accepted to N and, furthermore, that they would be enrolling him there, the Parents sought a current assessment of C’ s speech and language skills. Ibid. at 5174. As such, the Parents had informed Ms. K that M’ s limited focus on pragmatic speech and behavior al intervention had been the cataly st for their application to N, a placement whose “whole child” approach could more intensely address both C’ s asocial behaviors and his learning deficits. June 25, 2 010 T r. at 397 5-3976. Ms. K indicated that she concurred with the Parents’ decision to enroll C at N, a decision the Parents maintained was additionally supported by M. June 25, 2010 Tr. at 4079; October 28, 2010 Tr. at 5211-5212. In furtherance thereof, the witness referred the Ws. to Judith O, Ph.D. for an updated psychological evaluation.

Ultimately, the witness testified that she was unaware that C had been certified into special education, had not attended any CSE or Section 504 convenes since May 2006 and was unaware of the District’s IEP recommendations for the 2007-2 008 2008-2009 and 2009-2010 school y ears. June 25, 2010 Tr. at 4086-4088. Similarly, her direct knowledge of both M and N was limited.

Judith O is licensed by New York State as a Clinical Psychologist and additionally testified on behalf of the Parents. Exhs. B-1, D, DD. Dr. O evaluated C in April 2009 and October 2009. The witness described a “quirky ” child with Lyme disease who clearly presented with poor pragmatic speech, a language processing disorder, retrieval issues, and a “blatant” social ineptness which precluded any need to contact the child’s current teachers for input. July 21, 2010 Tr. at 4185. She noted that an assessment of C involved a “very complicated diagnostic evaluation because there were multiple problems on the table, none of which needed to be mutually exclusive.” As such, it was necessary to evaluate both the nature o f C’s issues along with their magnitude and prom inence. Ibid. at 4991- 4992.

Beyond t his, the witness expressed concern about C’s level of anxiety which she believed ha d reached “unusual proporti ons” as reflected by “bizarre” responses to projective testing and lapses in reality testing. Ibid. at 4188-4189; July 21, 2010 Tr. at 5018. The witness described her evaluation as process-driven, noting that scores alone could not adequately describe the child’ s cognitive function. Ibid. at 5071. Ultimately, the witness diagnosed the child with a mixed disorder, al though no specific reference to a formal diagnosisof appears in her report.21

Although the child possessed clear cognitive and academic strengths as demonstrated on the Stanford- Binet and WISC, Dr. O testified, “I was very c oncerned about t he qualities that he [ C] demonstrated, which expla ined some of the bullying that they [the Parents ] had reported, because he was unable t o read social cues and eng age in recipr ocal kinds of relationships in an age ap propriate way, which confirmed his need for a school like N . . .” July 21, 2010 Tr. at 43 30-4331, 4191; Exhs.

The witness testified, “ . . . if I’m to learn anything I have to understand how he achieved the score, because different children can achieve the same score for different reasons in terms of the way they answer the question and . . . they may be very diagnostically different or may have very different strengths, even though they end up with the same statistical score.” Tr. at 5074. The witness testified that although an axis diagnosis was not given, the diagnosis appears on insurance documentation. October 5, 2010 Tr. at 5002, 5067. B-1, D.22 Based upon two out of four criteria articulated by the DSM-IV, Dr. O concluded that C met diagnostic criteria for Aspergers, noti ng that th ere is an “evolving u nderstanding of A sperger’s” separate and apart from the DSM-IV in which the intens ity of the social disorder is prioritized. Ibi d. at 4360. Nevertheless, Dr. O acknowledged on cro ss-examination that she had not administered any specific ASD scal es or checklists. Mo reover, she t estified that her ass essment had only included input from Ms. K, the Parents and the District’s 2008-2 009 IE P. Ibid. at 4 320. Si gnificantly, t he witness testified that she had arrived at the Asperger’s diagnosis independent of Dr. R’s report and the use of this term by the Parents. Ibid. at 4274, 4278, 4284.

Although Dr. O did n ot k now C prior to 20 09, she opined that M had been appropriate for C, a n opinion predicated upon Parental report, the report of Cory V, Ph.D. and her own knowledge of the M program. July 21, 2010 Tr. at 4196-4202; Exh. 14. Nevertheless, as C’s social dysfunction enlarged, the Parents reported that C was becoming marginalized at best, teased and bullied at worst. By April 2009, Dr. O no longer believed M was an appropriate setting. Ibid. at 4297-4298.

At this time, “. . . evaluations highlighted his attention deficit. What was on the table we re the fact that he was not learning how to read, t he graphomotor issues and language problems. And M is a school that has specific methodology for teaching children with language-based learning disabilities.” Tr. at 499 3. Nevertheless, as the child ’s behavioral dysfunction became more prom inent, affecting both cognitive and management issues, M became less appropriate. October 5, 2010 Tr. at 4996. Referencing the 2008-2009 IEP, Dr. O observed that even within the structure of M’s program, C was “often removed” and required “careful monitoring and teacher support” during special classes an d lunch. Ibid. at 5017; Exh. 2.

Likewise, Dr . O opined that the Distri ct’s reco mmendation of a general educ ation class would be inappropriate. She noted that even with the assign ment of a 1:1 aide and special education support s such as resou rce roo m, thi s would not be appropriate as the aide could not substitute for a special education teacher and “this is a child who can’ t integrate things for a Rorschach response. And to be able to integrate the patchwork of a lot of pull-out, push-in services would not be helpful to him. Plus the large size of the class would be overwhelming . . .” July 21, 2010 Tr. at 4203. She later testified,

Many of the child’s test scores fell within the average to high average and even superior range. July 21, 2010 Tr. at 4330-4345. 4360-4365. “Children of this magnitude of difficult y cannot integrate piecemeal services. They cannot function appropriately in a large cl assroom setting where the y have to adapt to the curr iculum. They cannot retain what is taught in a lim ited setting and develop enough s kills a nd coordinate it to be able to make substantial gains and functioning. . . . they cannot adapt to things that are taught out of context.” Ibid. at 4981-4982.

By April 2009 Dr. O was apprised by the Parents that C would be transferring to N. July 21, 2010 Tr. at 4286, 4360. Consistent with her findings in October 2009, Dr. O opined that the N placement was appropriate for C, noting again that a general education placement would not serve C’s educational needs. Ibid. at 4213-4214. In furtherance thereof, the witness testified that C was “no longer fitting the profile of the M kids. And even within an LD setting, the kids were really beginning to tease and bully him. He was getting very upset b y it . . . . M has very explicit criteria for children who remain in that program who are legitimately accepted . . . . They will require kids to have projective tests before they’r e admitted. If a kid has a profile of having more significant emotional issues or behavioral issues, they often do not accept those children into M.” Ibid. at 4287. Nevertheless, her assessment of N’ s appropriateness did not include a re view of C’s records at either M or N nor had Dr. O spoken with their personnel. Similarly, the witness had not spoken with District personnel, had reviewed only the 20 08-2009 IEP and only “glanced” at the District’s 2009-2010 IEP. Ibid . at 4270. Nonetheless, she was able to ascertain that the District’s recommendations for 2008-2009 and 2009- 2010 were largely similar in that C was assigned to an aide within a general education classroom supplemented by a host of pull-out services.

Carol Z, Ph. D. additionally testified on behalf of t he Parents as their behavioral consultant. Exhs. CC, C, EE, L L. Dr. Z’ s doctorate is in special education with a concentration in Applied Behavioral Analysis (hereinafter “ABA”). She first observe d C at M in March 20 09 and has observed the child four times in total. July 26, 2010 Tr. at 4425. In March 2009, the witness described a child who was intermittently attentive but whose behavior did no t reflect stereotypical or grossly inappropriate behaviors. When the class was broken down into small group instruction, C’s on task performance increased and Dr. Z opined that the M program appeared appropriate.

By June 2009, Dr. Z ’s observation reflected a child who had deteriorated significantly, “ emitting significant stereoty pical and inappropriate behaviors ” which were intrusive, distracting and socially isolating. At this time, the witness opined th at M personnel were rewarding and reinforcing dysfunctional behaviors in a program that was no longer meeting C’s needs. Ibid. at 4430-4433, 4441. The witness testified that C “stood out like a sore th umb . . . Not from an academic perspective, but from a behavioral perspective.” Ibid. at 4449- 4450. She further opined that “C is a little bit difficult to diagnose and to also pick up on those subtle cues of Asperger’s because he is so intelligent” and his performances have been sporadically successful. July 26, 2010 Tr. at 4457.

In November 2009, the witness again conducted a formal observation of C with Dr. H at N. Exhs. EE, FF. At this time, Dr. Z observed that the child’s odd finger movements, noises and facial tics persisted. Nevertheless, C’s occasional distractibility was being addressed appropriately by N’ s small, highly structured classes and personnel skilled in behavioral strategies. C appeared far more focused, and Dr. Z opined that N appeared to be an a ppropriate program for the child. Ibid. at 4478- 4481. Moreover, having reviewed Dr. H’s report of this observation, the witness believed both her assessment and that of Dr. H were consistent in terms of the positive changes in C’ s social demeanor and self-stigmatizing behaviors.

On May 18, 2010 Dr. Z again evaluated C at N. Exh. LL. At this tim e, the witness observed considerable improvement in C’s behavior, notin g that the child actively and voluntarily participated in classroom discussions and had developed a significantly improved ability to self-monitor aspects of his social behavior. Although the chil d rem ained impulsive and rigid, be haviors which interfered with decoding, comprehension and his general ability to function within the classroom, C was clearly responsive to teacher suggestions and had mastered many behavioral goals upon which an abilit y to function within the classroom is predicated. Ibid. at 4495; Exh. LL at 7.

Carole Andreasen is the District’s Director of Technology and, in this capacity, submitted an affidavit and testified i n person as a n adverse witness on behal f of the Pare nts. Exh. TT . Am ong her duties, Ms. Andreasen has been responsible for em ail applications, includi ng f unctionality, filtering, upgrading and retention. November 29, 2010 Tr. at 5618. I n 2008, Ms. attended a BOCES/Regional Inform ation Center work-shop i n which Districts were apprised of upcom ing legislation regarding reten tion of em ails. Ibid. at 5 614. As new hardware with archival capacity would be re quired for District co mpliance, Ms . sought funding for the purchase and installation of both t he newly required software and the supporting hardware. The witness t estified that prior to this conference, she was unaware of any federal regulations related to email maintenance, an opinion largely based upon material disseminated by the BOCES/Regional Information Center. Specifically, prior to the s ummer of 2009, all emails were purged after 180 day s in what th e witness described as a “blind purge.” Ibid. at 5667. This occurred aut omatically as a result of t he older system’s li mited mem ory, speed and abilit y t o serve as file storage. In cont rast the new sy stem, initiated as of July 2009, permitted a minimal seven year archive. Using the updated technology, Ms. Andreasen provided archived emails to Ms. E dati ng back to January 2009. Novem ber 29, 2010 Tr. at 5626. On September 29, 2009, Ms. advised District personnel regarding the new email capacity, referencing new Federal legislation for electronic data. Exh. TT at 4. Consistent with this, the witness t estified that, prior to the litigation sub judice, she wa s unfamiliar with “ED-1” and had not utilized its provisions to im plement policies or procedures relating to District technology. November 29, 2010 Tr. at 5642. The witness testified that, notwithstanding ED-1, i t was not the custo m and practice of School Districts to archive em ails for greater than one year, an opinion based upon networking relationships with other personnel responsible for school district information technology. Ibid. at 5649-5651.

Ms. Andreas en testified that she did not consider e mails part o f the student’ s record due to their transient nature and the fact that there were other official alternatives for maintaining these files. Ibid. at 5621-5622. She has never received a “ litigation hold” letter regarding the preservation of student email, but noted the current software does not permit the permanent deletion of emails, until the seven year archival period is exceeded. Ibid. at 5628-5630. In contrast, prior to t he summer of 2009, a search could always be performed in order to isolate a particular student’s email. However, she was unsure if the District could prevent it from being deleted, noting that, at best, such documents “could be backed up.” Ibid.

Finally, Ms. W., the child’ s m other, testified. Th e Parent provide d a brief description of C’ s Lyme Disease, ge stestationally acquired. 23 In furtherance t hereof, she noted that although the disease is treated with oral antibiotics, there is presently no testing which establishes whether an individual remains actively infected. Ms. W. observed that the disease is associated with a constellation of neurological sequellae including long-term cognitive deficits. The child has received h yperbaric

Ms. W. is the Vice President of Education for Time for Lyme, a voluntary organization devoted to research, education and advocacy for Lyme disease. April 15, 2010 Tr. at 3300. oxygen chamber treatments and has previously taken Klonopin and Metadate for treatment of anxiety and respectively. June 8, 2010 Tr. at 3742-3753. As early as age three, C began to experience night te rrors with decreased sensitivity to pain. At or about t his time, the child’ s nursery school teachers additionally reported poor eye contact, low frustration tolerance and inappropriate and isolating social skills. As a result o f these behaviors, C was evaluated and began receiving both speech and occupational therapy through the CPSE. In March 2005, pursuant to a CPSE convene, the Parent was advised that C no longer exhibited the significant fine motor and language deficits demonstrated earlier and, therefore, C was decertified from special education for the upcoming 200 5-2006 school year. April 15, 2 010 Tr. at 33 02-3306; Exh. 4. Consequently , the child was privately assess ed by G ail K, who observed that the child continued to exhibit significant speech delays, including both word retrieval a nd pragmatic issues. On or about June 20, 2005, t he CSE re-convened and, based upon the report of Gail K, related services of speech and occupational therapy along with a new psychological consult were restored for the 2005-2006 school year through Section 504 eligibility.24 Exh. 5. Notwithstanding the restoration of services, the Ws. held over C during the 2005-2006 school year for an additional year in pre-school. The Parent testified that C behaved rigidl y, had marked difficult y with transitions, exhibited odd and alienating behaviors and lacked the most rudimentary social skills. June 8, 2010 Tr. at 3831-3832. Although Ms . W. disagreed with the District’ s speech recommendation, the Parents ultimately supplemented these services with Gail K, their private provider. C did not attend kindergarten until September 2006. In March 2006, the Parent obtained a physical examination form from her pediatrician, Steven R, M.D., in preparation for C’s entrance to kindergarten for the 2006-2007 school year. At this time, Dr. R opined that C was a child with an unsurprising conclusion since prior to Dr. R’s report, Ms. W. testified that she herself h ad been describing C as a child with Lyme disease and autistic characteristics. September 27, 2010 Tr. at 4877; Exh. 18. Although Ms. W. described Dr. R as C’ s ongoing pediatrician, prior to August 2, 2010, C had only been seen twice by Dr. R, with several years intervening. Ibid. at 4806-4811; Exh. 67. Ms. W. noted that additional routine pediatric care has been rendered by a local walk-in clinic.

The Parent testified that a subsequent CSE meeting reportedly held on June 20, 2005 did not in actuality occur. June 8, 2010 Tr. at 3766-3798; 3810-3815; Exhs. 56-A, 56-B, 56-C. Following the 2006-2007 school year, the Parent could not recall who had served as C’s pediatrician. Ibid. at 4820-4823. As part of the registration process and at the direction of Dr. R, Ms. W. gave the physical examination form to both the school nurse and Dr. H. The witness acknowledged that she could only recall one discussion with Dr. H with regard to Dr. R’s form . S eptember 27, 201 0 Tr. at 4870. I n furtherance thereof, Dr. H, as the child’ s case m anager, assure d Ms. W. that the child’ s needs would be m et, regardless of his classification, suggesting that an autistic cl assification might be harmful and premature. June 3, 2010 Tr. at 3404-3409; September 27, 2010 Tr. at 4845-4 846, 4863. The Parent testified that she did not mention the PDD diagnosis again. November 15, 2010 Tr. at 5384. On May 24, 2006, the Section 504 Committee convened. Although Dr. Rs’ report had been furnished by the Parents, Ms. W. indicated that it was consid ered in a perfunctory manner. She could not recall the form being present at the meeting and testified that the issue of ASD or PDD wa s not addressed, notwithstanding her description of C as a child suffe ring from Lyme disease with autistic tendencies. June 3, 2010 Tr. at 3415-3416, 4878-4880. Nevertheless, the child’s teacher from Q, Ms. Schimanke, was pres ent and expresse d concern about C’ s behavior al issues. June 3, 2010 Tr. at 3420-3421. Based upon her description of C’ s difficulties with transitions, social i nteractions, frustration tolerance and distractibility, both Ms. Schimanke and Ms. K recommended that C be assigned to a 1:1 shadow aide during C ’s upcom ing 2006-200 7 kinde rgarten y ear. Ibid. at 3422 . Thereafter, Alaina Cuglietta was assigned to the child as his aide. Tr. at 3430. In Septem ber 2006 C commenced classes in Distri ct. Despite initial indices of success, the Parent testified that it was soon apparent that C was again struggling an d an application to M com pleted. June 8, 2010 Tr. at 3843-3849; Exh. 57. Although the Parent enjo yed a warm and positive relationship with both the child’s teacher and aide , she was concerned that C was not developing appropriate academic or social skills and denied sta ting that he had experienced an excellent year in kindergarten. July 27, 2010 Tr. at 4 663. T he Parent noted that C was ostracized within the classroom an d bullied in the pla yground,25 an ongoing issue dis cussed with Ms. P and the aide. Rather than mediate, model and facilitate appropriate social skills for C, the sha dow would remove C from the social milieu by sitting at a table with the child and drawing with him . June 3, 2 010 Tr. at 3437-3439; November 15, 2010 Tr. at 5386 . On Nove mber 28, 2006 , Ms. W. participated in a CSE

The Parent testified that she was present for all parties and class trips. She had been told about the bullying by Ms. P, C’s kindergarten teacher. convene. At this time, the child was withdrawn from Section 5 04 status and classified into special education. Exh. 8. Notwithstanding many private efforts to supplement the District’s programming, the Parents believed C was falling behind rapidly a nd, at this time, began to consider M for the upcoming 2007-2008 school year. In the spring of 2007 , the CSE reconvened. Exh. 1. At this time, the Parents’ pediatric neuropsychologist, Cory V, Ph .D., and developmental therapist, L.W-W additionally participated. In furtherance thereof, Dr. V expressed concern about the resource consultant’s pull-outs as the child did not appear to be transferring the new material back into the classroom. She further opined that C required a multi-sensory reading program such as Orton-Gillingham. Finally, Dr. V questioned the 30 minute pull-out model for related services as the child transitioned poorly and needed additional time to settle into class. June 3, 2010 Tr. at 3466. The Parent a gain raised the issue of bullying, but could not recall the District’ s response. Although the child’s report cards for kindergarten suggested that the child had progressed significantly , Ms. W. noted that the “social growth” reflected little more than C’s ability to spew lists of facts to his peers in the form of a “data du mp.” July 27, 2010 Tr. at 466 8; Exh. 3 9 at 5. He had not, moreover, “made friends.” Rather, both Ms. P and Ms . Cuglietta had indicated that several children treated C cruelly. In fact, concerned about these issues, M s. W. had approached Dr. H about the issue of bullying, but had not made a record of these concerns. Ibid. at 4679, 4876. Finally, although Ms. P’ s final Progress Report had indicated, “he is play ful and able to converse with boys and girls and he has so much information to share,” the witness testified that, in fact, C was reaching out to his peers, notwithstanding their disinterest in him. Ibid. at 4679; Exh. 39 at 5. At this time, Ms. W. expressed her disagreement with the District’s educational programming, noting that C required more intensive services and, in furtherance thereof, informed the CSE that C would be attending a 12:1 classroom at M the following year. June 3, 2010 Tr. at 3472; 3481. During t he 2007-2008 school year, C attended M, a placement in which Ms. W. believed C had made dramatic academic progress. On June 19, 2008, the CSE generated an IEP for the 2008-2009 school year. At this time, the District adopted many of t he goals articulated by M personnel. Given t he M integrated model of utilizing a multi-sensory approach across all academic areas, t he Parent did not believe these goals could be implemented appropriately within the D istrict’s pull-out paradigm. Ibid. at 3488. Moreover, she did not believe C’s skills would be maintained during the summer with the limited extended year program offered. Ibid. at 3489-34 90. C did not attend the District’s summer program that year, but was enrolled in an intensive program at New York University. Although t he child attended M during the 2008-20 09 school year, C’s negative behaviors began escalating dramatically after the first few months. C also appeared highly anxious. 26 Although the child was making significant academic progress, it was clear that C’ s behavioral issues were now taking precedence. In response, the Parent’s retain ed behaviorist Carole Z, Ph.D. to assist them . Following D r. Z’s observations in March and June 2009 , th e behaviorist recommended a new educational placement at N, based upon C’ s presentation of odd self-stimulatory behaviors and his need for a more intensely structured environment. Exhs. CC, C. On cross-examination, the Parent testified that she could not recall if she had shared Dr. Z’s findings with District personnel and was uncertain whether District personnel were aware of C’ s escalating behaviors, although both Dr. Z and Dr. H were both present for the June 11, 2009 observation. September 2 7, 2010 Tr. at 4839-4841 ; Exhs. 37, C. Nevertheless, she believed C’ s impulsive, distracting and self-stimulatory behaviors had been well known to the District and were, in fact, th e impetus for assignment of an aide. The Parent did not dispute the receipt of Dr. H’ s letter requesting consent to observe C at M as early as Mar ch 12, 2009, and agreed that the issue of consent had been discussed at the April 28, 2009 CSE. July 27, 2010 Tr. at 4682- 4684; Exh. 33. Nevertheless, a formal written consent was not offered until May 14, 2009. Exh. 34-36, 41. The Parent testified that this delay was occasioned by the fact that she could not consent to a District evaluation unless Carol Z were present. In furtherance thereof, Ms. W. testified regarding the multiple emails in which observation dates were proposed, a difficult scheduling process due to the challenges of coordinating Dr. H’s calendar along with that of Dr. Z and M. Ibid. at 4688, 4885. As a result, a mutually acceptable date could not be identified until June 11, 2009. On April 28, 2009, the CSE again met to plan for C ’s upcoming school year. Although the Parents had already engaged the services of Judith O, Ph.D., this report was not furnished to the District until July 30, 2009, nor was it discussed at the April 2009 CSE meeting. Exhs. DD, B-1. At so me unknown point following the summer, the Parent reported discussing Dr. O’s report, her diagnosis of

The Parent testified that B. W. was pulling his hair out, chewing his finger and toe nails as well as his shirt collar. Tr. at 3538. C’s Asperger’s Syndrome and the fact that the child’s ADHD “can mask Asperger’s at a younger age, because – and so many times Asperger’s isn’t picked up until, you know this age or later years. . . ” June 3, 2010 Tr. at 3598. On July 22, 2009, the Parents advised th e District that they rejected the District’s April 28, 2009 IEP and would be placing C at the N School for the 20 09-2010 school year. Exhs. 31, 3 2, 70, 71. The Parent testified that she believed N was better equipped to address the behavioral, social and emotional component of C’ s disability, while continuing a multi-sensory academic approach. She added that both Dr. Z and Dr. O have observed the child at N and concurred that this was s an appropriate placement for C In sum , the Parent testified that she is satisfied with the improvements demonstrated b y C since transferring to N, not ing that her s on is even beginning to develop friendships. Exh. EE. On cross-examination, the Parent testified to a number of private medical reports and evaluations obtained after C had left the F School. She could not recall, however, whether she had notified the District of these assessments and acknowledged that they had not been shared until long after her Due Process Request had been filed. Exhs. B-1, B-2, B-3, B-4, C, D, 63-65. They were, however, available to the June 2010 CSE.28 November 15, 2010 Tr. at 5409. Although Ms. W. could not specifically recall receiving a scheduling letter on or about August 26, 2009 for a C SE convene on September 26, 2009, the Parent acknowledged sending an e mail on August 31, 2009 indicating that the family was unavailable on this date. Exhs. 30, 29. While Ms. W. agreed that she had not furnished any alternative dates by September 10, 2009, the first day of classes, she noted that this was, in part, related to Dr. H’s part-time status. July 27, 2010 Tr. at 4738. Mr. W. additionally testified. The Parent noted that C’s problems were readily apparent b y pre-school. At t his time, Mr. W. observed that C exhibited sy ntactical error s in speech, poor recall, difficulty following instructions and behavioral difficulties. November 15, 20 10 Tr. at 5 477.29 The Parent described C as “a steamroller, not really recognizing the boundaries with other children.” Ibid. As a result of these issues, it was determined that C would be best served by spending an additional

Several evaluations are time-stamped July 30, 2009.

The 2010-2011 school year is not part of the within hearing.

The child additionally demonstrated fine motor compromises for which herapy was indicated. year in pre-school. Notwithstanding this, many of C’s issues with eye contact, transitions and focus persisted. On March 7, 2005, Mr. W. attended a CSE meeting in which it was his understanding that speech services would be discontinued. As a result thereof, both he and his wife retained the private speech and language services of Gail K. Following Ms. K’ s evaluation, the Parents requested a second CSE convene and on or about June 20, 2005 the child’ s services were restored although not to the level either the Parents or Ms. K believed necessary. The Parent testified that, following an additional pre-school year at Q, C articulated into kindergarten within District. By November 2006, the witness learned that C was not functioning well in this setting and, i n particular, the aide was struggling to manage the child. November 15, 2 010 Tr. a t 5490. I n furtherance thereof, the child was frequently asked to leave the room with his aide. Transitions remained problematic and the aide had become frustrated by her inability to control C’s behavior. Ibid. at 5490, 5492. Concerned about C’ s lack of progress, the Parents sought private speech and psychological evaluations of their child. Mr. W. testified that, at some point during this school year, the Parents decided to explore non-public school placements and made a decision during the summer of 2007 to place C at M. Ibid. at 5502; Exh. 1. On May 2 , 2 007, Mr. W . attended a CSE convene i n which private evaluators Cory V, Ph .D. and Ms.W W participated in person. In the course of th is meeting, Mr. W. testified that the issue of was not raised nor did Mr. W. recall discussing M, although C would be attending their school during the 2007-2008 school year. On June 19, 2008 the CSE again convened. The witness stated that M personnel provide d a clear description of their program, noting that reading and math would be taught within a 5:1 or 6:1 paradigm respectively. A s previously , the Ws. ha d reserved a seat at M, contingent upon what the CSE would be offering their child. Based upon t he academic achievement exhibited by C, t he child was re-enrolled during the 2008-2009 school year. During the 2008-2009 school year at M, Mr. W. testified that C made significant academic progress in the area s of reading, writing and math. Nevertheless, he believed that N could now offer a better program. While N continued to offer small class size and an Orton-Gillingham program , Mr. W. believed the “program advisor” component at N would better serve C at this time. In furtherance thereof, Mr. W. testified that he “had not noticed” any “conduct” or behavior problems exhibited by C at M. November 15, 2010 Tr. at 5516; Exhs. MM, NN, 00. Although Mr. W. testified that the family had not made any final decisions regarding placement at N for the 2009-2010 school year until the summer of 2009, the W.s made their first advance deposit at N o n March 17, 2009 . November 15, 2010 Tr. at 5518-5521. Since then, C has attended N, a placement with which the Parents are satisfied. Mr. W. based his conclusions upon parent-teacher conferences, classroom observations, homework and report cards. Exhs. PP, QQ. The School District’s Position The School District maintains, a priori , that the Parents’ claim for the 2007- 2008 school year is barred by the statute of limitations. Moreover, the District contends that the IEPs for the 2 008-2009 and 2009-2010 school years were valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the School District asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) an d is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations design ed to identify the child’ s needs, and develops strategies and interventions directed at re mediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08- 005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). The District further maintains that neither M nor N are appropriate placements for the child as neither is able to furnish the educational accommodations or related services recommended in the child’ s IEP. Similarly, neither M nor N comport with the notion of furnishing services within the leas t restrictive environment. The District additionally maintains that the Parents are precluded from addressing or seeking relief for issues not previously pleaded in their Due Process Complaint. Finally, as an ancillary argument, the School District contends that the P arents’ actions militate against their equitable entitlement to relief. The Parents’ Position

The Parents assert that the School District stands in abrogation of its duty to provide C with a free and appropriate public education during t he 2007- 2008, 200 8-2009 and 200 9-2010 school years in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEPs generated during those years, in aggregate and alone, reflect a number of substantive and procedural errors which compel nullification of the documents. Specifically, the Parents maintain that the District’s failure to identify and/or appreciate C’s syndrome compromised the integrity of its educational planning. In furtherance thereof, counsel maintains that the School District’s IEPs broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a no n-public school placement (Board of Education of th e Hendrick Hudson Central School District, Westchester County, et al., v. Am y Rowley, b y her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir .1998). In furtherance thereof, the Parents seek an award of reimbursement for tuition expenses incurred during the 2007-2008, 2008-2009 and 2009- 2010 school years, including reimbursement for private evaluations and related services. There is no claim for compensatory education. Consistent with their argument, the Parents contend that there are no equitable factors which militate against an award of reimbursement, rendering them eligible for relief pursuant to School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]. The Parents additionally raise certain procedural issues related to the statute of limitations, spoliation and waiver of their obligation to provide a ten day notice pursuant to 20 U.S.C. § 412(a)(10)(C)(iii)(I) and 34 C.F.R. § 300.148(d)(1). Discussion It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. (20 U.S.C .Sx.1400 [ d][1][A]; see , Ms. W. v. Tirozzi, 832 F. 2d 7 48, 750 [2nd Cir. 1987)]. A F APE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify th e student' s needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal N o. 01-105; A pplication of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the " modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F. R. 300.340[ a]; 8 N.Y.C.R.R. 200.1[ y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C . 1414(d)(2)(A); 34 C.F.R. 300.342[a]. In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [ 1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]). While both t he Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley , 458 U.S. at 205 [ "the importance Congress attached to these procedural safeguards cannot be gainsaid" ]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most case s assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, t he initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [ 2d Cir. 1998 ]). These detail ed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of t he Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996] ). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Edu c., 874 F. 2d 1036, 10 41 [ 5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [ S.D.N.Y. 2000] ; Evans, 930 F. Supp. at 93). While procedural flaws do not automatically translate into a denial of FAPE, procedural inadequacies that individually or cumulatively result in the loss of educational opportunity, or seriously infringe on a parent's participation in t he creation or formulation of the IEP, clearly constitute a denial of FAPE (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 107 2, 1079 [ 9th Cir. 2003] ; Knable v. Bexley City Sch. Dist., 238 F.3d 7 55, 766 [6th Cir. 2001] , cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [ 7th Cir. 1997 ]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973 , 98 2 [ 4th Cir. 1 990]; W.A. v . Pascarella, 153 F.Sup p. 2d 144, 1 53 [ D.Conn. 20 01]; see Arlington Cent. Sch. Dist. v D.K., 200 2 WL 315 21158 [ S.D.N.Y Nov. 14, 2 002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69- 70 [ 2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). Appeal 03-061.

Point 1: Pu rsuant to Zubulake v. UBS Warburg LLC, 229 F.R. D. 422 (S.D. N.Y. 2004), have the

Parents established an e quitable basis for compelling a negative inference, consistent with the notion of spoliation? On November 10, 2010, t he Parents interposed a Motion f or Declaratory Judgment concern ing the District’s destruction of electronic files and spoliation. Specifically, the Parents maintain that as early as March 13, 2008 , the District was under an affirmative obligation via 8 N.Y.C.R.R.§ 185. 12 (Appendix 1 , 1.267[ b]), hereinafter referred to as “ED-1”) t o place a litigation hold on all documents and, i n particular, electronic correspondence relating to C I n the absence of a litigation hold and the subsequent destruction of the documents in question, counsel maintains that a negative inference must be drawn from the contents of a ll pu rged emails. Citing Zub ulake v. UBS Warburg LLC, 229 F. R.D. 422, 43 0 (S.D.N.Y. 2004), the Parents assert that the District’s purge of C’s email stands in abrogation of its duty to preserve such documentation, and furthermore, that these records were destroy ed with a “culpable state of mind.” Finally, consistent with Zu bulake’s articulation of the predicate elements of spoliation, the Parents contend that the destroyed evidence was “relevant” to their claim such that a reasonable trier of fact could find that the lost documentation would support that claim or defense (Zubulake at 430, citing Byrnie v. Town of Cromwell, Board of Education, 24 3 F.3d 93, 107-112 [2nd Cir 2001]). I note, at the outset, that the Courts possess broad discretion in fashioning a wide array of remedies where the violation stands in contravention to all notions of fair play and justice. The operant facts are as follows. On March 13, 2008, the Parents, by their attorney, sent the District a Notice of Representation with an additional request for “a thorough and complete review of all academic, educational, disciplinary and medical records held by the District . . . including, but not limited to, all evaluations, IEPs and testing and test results.” Exh. xiii. Thereafter, a second similar request was forwarded to the District by letter dated May 20, 2009. On August 5, 2009, more than 16

See 8 N.Y.C.R.R. 185.12, Appendix 1, 1.267[b], Records Retention and Disposition Schedule ED-1 at 2415 et seq. months after their initial request for records, the Parents served a Request for Due Process against the District. Nearly 60 00 pages of testimony were taken over t he span of 30 hearing dates. Both parties had extensive evidence admitted into the record. There is no question that a full record “permitting meaningful review” has been developed (Application of a Child with a Disability, App. No. 04-024). Carole Andr easen, the District’s Director of Technology, additionally provided an affidavit and testified in person on behalf of the Parents. Exh. TT.

In sum, Ms. Andreasen discussed the manner in wh ich electronic co mmunications were preserved or retained by t he District. Specifically , Ms. testified that prior to the su mmer o f 2009, all electronic correspondence was automatically destroyed after 180 day s in what the witness d escribed as a “blind purge.” Nov ember 29, 2 010 Tr. at 5 667. This d isposal occurred as a result of t he computer sy stem’s lim ited me mory, speed and ability to serve a s file storage. The witness furthe r testified that, notwithstanding ED-1, it was not the custom and practice of School Districts to archive emails for greater than one year, an opinion based upon networking relationships with other personnel responsible for school dis trict inform ation techn ology. I bid. at 5649-5651. Nevertheless, had t he District wished, emails could have been searched, segregated and independently backed up.

In the fall of 2008, the witness attended a workshop held at the Regional Information Center and learned that new email retention protocol would be mandated b y the State. I bid. at 5613-5614. I n furtherance thereof, Ms. requested addi tional District funding to identify, secure and install updated software and hardware with upgrad ed storage capacity . I n Jul y 2009, the District installed a new sy stem which would prospectiv ely and automatically archive all electronic communication for at least seven years. In contr ast, older electronic comm unications continued their 180 day retention period a nd, at best, were only accessible dating back to January 2009. Novem ber 29, 20 10 Tr . at 5626. Unless independentl y b acked-up b y individ ual personnel, electronic correspondence dating pri or to Januar y 2009 was unava ilable. Ms. credibly testified that she had not received a litigation hold, nor was she awar e of ED-1 prior to the instant proceedings. As a result, she had not instructed personnel to retain emails, nor had she specifically asked personnel to back-up their communications.

At the outset, I find that 8 N.Y.C.R.R. §185 .12 (Appendix 1 , ED 1 at §1.2 67[b])31 is the relevant provision regarding t he retention of electronic correspondence, notwithstanding t he District’s allegations to the contrary (see and compare 8 N.Y.C.R.R. §185. 12 [Appendix 1, ED 1 at §18.18]). Prior to the f all of 2008 , Ms. testified th at she had viewed email as a marginal form of transient communication. As such, standards and procedures for email retention were il l-defined and/or erratically applied. Clearly , the recent amendments t o 8 N.Y. C.R.R. § 185 et seq., amendments which standardized the treatment of email retention, reflect both an evolving appreciation of electronically stored information a nd an effort to manage these records uniform ly. Given the system wide destruction of records and the hardware ’s limited capacity to store data, the District’s actions are easily distinguished from th e entrenched pattern of bad faith exhibited i n Zubulake. In its “blind purge” the District’s software did not intentionally i solate and destroy th e records of C Moreover, in t he absence of a litigation hold, there is no issue of intentional malfeasance or non-compliance on behalf of the District. A mere request for records does not establish notice, per se, that the District itself will be a part y to litigation pursuant to 20 U.S.C. §1415 et seq. as educational records may be required in an y number of circumstances. Moreover, given the 16 month lapse between the request f or records and the Parents’ initiation of their Due Process Request, the likelihood of litigation was no longer reasonably foreseeable even after a second record request 14 months later. As such, I do not believe the District was under an affirmative duty to issue a litigation hold until August 5, 2009.

Although it is clear that ED-1 was in force, it is unc lear whether its retention provisions were widely in effect. This is underscored by Ms. uncontroverted testimony regarding the fall 2008 Regional Inf ormation Conference and the dissem ination of “n ew” retention requirem ents for electronic communications. November 29, 2010 Tr. at 5648-56 52. Under these circu mstances, a per se violation of ED-1 do es not translate into th e “culpable mind” contem plated by Zubulake. Moreover, given her testim ony regarding the cu stom and practice of neighbori ng Districts in conjunction with Ms. E ’s lim ited kn owledge of ED-1, the District’s destruction of e mailed correspondence prior to January 20 09 simply does not reflect th e kind of egregious condu ct upon which Zubul ake’s predicate mens re a can be im puted to the District. As such, one cannot automatically draw a negative inference.

hreinafter referenced as “ED-1.” Nevertheless, the Second Circuit has concluded that a culpab le stat e of mind for purposes of spoliation ad ditionally rests within ordi nary acts of negligence (Zubulake, supra, citing Residential Funding v. DeGeorge Fin. Corp., 3 06 F.3rd 99, 108 -109). When evidence is destroyed negligently, however, rel evance must be proven by the party se eking the sa nctions. Nonetheless, even if th e District had negligentl y failed to issue a litigation hold, it is equally clear that the Parents have not met their burden of establishing the relevance of the electronic communications it now seeks.

In the context of a request for an adverse inference instruction, the concept of “relevance ” encompasses not only the ordinary meaning of the term , but also a requirement that the destroy ed evidence would have been favorable to the movant (Zubulake at 433, citing Fed. R. Evid. 401, Fed. R. Civ. P. 26 (b)(1). “This corroboration requirement is even more necessary where the destruction was merely negligent, since in those cases it cannot be inferred from the conduct of the spoliator that the evidence would even have been harmful to him .” Residential Funding at 10 8. As such, the party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction (emphasis added)” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. nd 68, 77 (S.D. N.Y. 1991), citing Stanojev v. Ebasco Services, Inc., 643 F.2 914, 92 4 n. 7 [ 2nd Cir. 1981]). This is particularly important, given the historical context in which electronic communications must be viewed. In support of their position, the Parents cite Dorsa v. National Amusements, 6 A.D. 3rd 652, 776 NYS 2nd 583 (2nd Dep’t 2004); Ifraimov v. Phoenix Indus. Gas, 4 A.D. 3rd 332, 772 NYS 2nd 78 ( 2nd Dep’t 2004) and Hulett v. Niagra Mohawk Power Corp., 1 A.D. 3rd 999, 768 NYS 2d 535 (4th Dept. 2003). Nonetheless, the facts at bar are easily distinguis hed and do not support an inference that the District’s spoliation of evidence “would have been unfav orable to the part y responsible for its rd destruction” (Kronisch v. U.S., 150 F. 3 , 112). Again, this corroborating evidence is essential where the alleged spoliation occurs negligently. For example, in Dorsa, supra, a negative inference on the issue of notice could be supported by the presence of a contemporaneously prepared incident report and the defendants’ destruction of records after the plaintiff had initiated her action. Likewise, in Ifrai mov, supra, a scenario in which an exploding propane tank was destroy ed “despite service of a notice to preserve a nd maintain the tanks as well as a notice to admit that the tanks were still in existence,” the plaintiffs additionally offered unrefuted testimony regarding actual notice of repeated tank over-filling and a related fire th e prior year. Again, in Hulett, supra, the Court found that defendant’s destruction of dispatcher records and audio cartridges had not occurred pursuant to normal business practices. In the matter at bar, the record does not support a conclusion of “relevance,” as articulated b y Zubulake, supra, as the Parents have not alluded to anything “more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.” The District’s retention policies were applied broadly to all students in the regular course of business; there is simply no evidence to suggest that the retention of C’ s records we re treated differently. While the P arents rightfully note that there are disputed questions of fact in this matter, both parties are equally affected by spoliation of these electronic communications. It is, moreover, unclear as to what the Parents seek to prove regarding the missing emails and Dr. R’s 2006 report. The Parents have simply not cited any specific corroborating evidence supporting their conclusion that e mails were destroy ed because such documentation would have established the District’s knowledge that “ signs of autism” were missed. This is especially troubling as Gail K, th e Parents’ witness, testified that she concurred with Dr. R’s diagnosis but made a “judgment call” not to pursue this issue as she did not believe a classification of autism would serve the child well, given the District’s pull-out model for related services. June 25, 2 010 Tr. at 39 45-3048. She further added, ““Because being on the continuum for oftentimes, you know, educational supports would include like a behavioral type of approach that’s more intense, 40 hours of ABA therapies and things like that are available, more traditional things that are going on for children with

. And he didn’t fit that profile of need. . . ” June 25, 2010 Tr. at 4050-4051.

Likewise, there has been no offer of pr oof regard ing what spoliated em ails will establish regarding CSE or 504 meetings which may or m ay not have occurred in June 2005. As for whether a teacher left a CSE meeting on June 19, 2008, a transcript from these proceedings simply does not support this conclusion a nd I note, m oreover, that three attorn eys were present for this meeting, including two from Parents’ counsel’s office. Exh. E-1 at 45. Under these circumstances, it is utterly unclear what the Parents would h ope to prove and ho w the missing documentation would be “relevant.” The law requires far more than a general surmisal that spoliated documents would have been favorable to the Parents; it is not a “fishing expediti on.” Finall y, with regard to notice of t he Parents’ unilateral placement and their request for reim bursement, the Parents have sim ply n ot prod uced any corroborating evidence on this issue, a matter easil y resolv ed by th e two way nature of emailed communication and the Parents’ inclination to avail herself of this form of exchange. Viewing the record as a whole, I sim ply cannot conclude that the Parents’ dubi ous allegations in this evidentiary matter support a negative inference with respect to the District’s negligent spoliation of documents. The Parents’ Motion papers are silent regarding what specific negative inferences must be made and what corroborat ing evidence exists. As the burden falls upon the " prejudiced party" to produce "some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroy ed files,” and “whether there is an y likelihood that the destroyed evidence would have been of the nature al leged by the party affected by its destruc tion,” I find that this burden has not been met. Kronisch at 127-128. Moreover, given the lengthy proceedings, I do not believe the loss of emailed correspondence prior to January 2009 fatally co mpromised the parties’ ab ility t o defend their action. Given the Parents’ vague assertions about what, if any thing, the destroyed emails would prove, I believe both sides have been equally prejudiced by the spoliation. Finally, while Zubulake, supra, affirms the Court’s authorit y to sanction litigants regarding spoliation, I am not convinced, given the public po licy issues which inure, that such a dramatic remedy appl ies to those actions which arise under the I DEA, 20 U.S.C. §1415 (f)(1). Notwithstanding Zubulake’s reiteration that the spo liation rem edy derives jointly under the Federal Rules of Civil Procedure and the Court ’s inherent powers, in New York State’s regulator y world, one which contemplates two days of hearing at tax pa yer expense, I believe the extensive testimony and evidence which accrued d uring 30 days of hearing have provided more than an adequate r ecord for the purposes of rendering a decision (See 8 NYCRR §200.5 (j)(3)(xiii).

Point II: Are the Parents precluded from asserting claims which have not been articulated in their

Request for Due Process? A second procedural issue which must be addressed prior to any discussion of the substantive merits reflects the District’s request to preclude consideration of all issues which were not raised in the party’s due process complaint notice. Pursuant to the IDEA’ s most recent amendments and corresponding revisions to New York State Education Law and Commissioner of Education Regulations, the party requesting a due process hearing may not raise issues at such proceeding that were not identified and raised in the party’ s original complaint notice unless the original request i s duly amended prior to the hearing (20 U.S.C. §1415[c][2][E]), or the other party agrees to such additional issues being added to the hearing (20 U.S.C. §141 5[f][3][B] (see, also, 8 N.Y.C.R.R. §200.5[j][1][ii]). This legislation was clearly designed in conte mplation of the fundamental principles of fairness an d due process. As a corollary , t he legislature additionally intended to facilitate the conduct of meaningful due process hearings, averting th e unnecessary loss of resources associated with defending uncontested issues. In contrast, the regulations do not limit a hearing officer from using principles of common sense and fairness in determining when to expand the hearing to include new relevant issues, under the proper circumstances, should the y arise (Application of a Child with a Disability, [Springville Griffith Institute Cent. Sch. Dist.], App. No. 04-061). In fact, “The statute does not specify that all fact s relating to the Parent’ s dissatisfaction must b e spelled out in the notice, much less th at every legal theory must be set forth in painstaking detail at that time to avoid waiver. Such a burdensome, unwieldy standard would far exceed that to which federal court plaintiffs are held, and seems antithetical to the more ni mble less rule-intensive character of administrative proceedings” (Alexandria R. et al v. Brookline Sch. Dist., 06-cv-0215-JR, Sept. 10, 2009, 53 IDELR 93, 10 9 LRP 57939, adopting language from Escambia Cty. Bd. of Ed. v. Benton, 406 F. Supp. 2nd 1248, 1259-60 [S.D. Ala. 2005]). In the instant proceeding, the Parents initiated the due process hearing. They have never filed an amended complaint notice nor otherwise sought to add issues not identified and raised in their original complaint notice. Even as they maintained allegations of fraud, no amendments were sought. Exh. i. Thus, given the extensive pleadings and the Parents’ claim of fraud, it would be patently unfair to entertain claims which could easily have been incorporated into the Parents’ initial complaint or by subsequent motion pursuant to Application of a Child with a Disability, [Springville Griffith Institute Cent. Sch. Dist.], App. No. 04-061. Accordingly, the only issues properly before the undersigned are strictly limited to the identified issues in Parents’ original complaint notice and, as a result, this IHO lacks subject matter jurisdiction to hear or determine any other issues in this matter (20 U.S.C. §1415(f)( 3)(B); 8 N.Y.C.R.R. §200.5(j)(1)(ii); Application of a Student with a Disability, Appeal No. 10-074; Application of XXXX School District, Appeal No. 10-070, at 10-11; and Application of a Child with a Disability, Appeal No. 07-047).

Given these parameters, I note that the Parents’ 60 2 page Request, inclusive of exhibits, does not make any reference to Steven R, M.D.’s report or th e failure of the District to consider its contents appropriately, either as an allegation or as an exhibit; there is simply no allegation of notice within the context of the Parents’ Request. Likewise, the Request is silent regarding (1) the inappropriateness of services generated by either the CPSE or 504 Com mittees, (2) t he ter mination of related services following t he March 7, 2005 CPSE re view and (3) the intentional manufacture of CSE meetings which did not occur. Exh. i. There is, moreover, no claim for compensatory education. Exh. i. The subm ission of evi dence, which may be relevant to one or m ore issues at the im partial hearing does not eq uate to subm itting an issue to an im partial hearing officer. These issues are, th erefore, beyond the scope of my review and may not properly be considered (Snyder v. Montgom ery County Pub. Sch., 2009 WL 3246579, at *6-*7 [D. Md. Sept. 29, 2009]; A.B. v. San Francisco Unified Sch. Dist., 2008 WL 4773417, at *9 [ N.D. Cal. Oct. 30, 2008]; Saki v. Hawaii, 2008 WL 1912442, at *6- *7 [D. Hawaii April 30, 2008]; Application of a Student with a Disability, Appeal No. 10-074).

Point III: Considering both Zubulake and the preclusion of claims pursuant to 8 N.Y.R.C.C. 200.5

(j)(1)(ii), is the Parents’ claim for the 2007-2 008 school year time-barred by the statute of limitations? At the outset, I will revisit the Parents’ claim that the tolling provisions for the 2007-2008 school year fall within the exceptions denom inated in 8 N.Y.C.R.R. § 200.5 (j)(1)(i). In furtherance thereof, the Parents have m ounted a two-pronged argument, u rging at o nce a “point o f discovery ” theory, analogous to medical malpractice litigation, and alternatively arguing that their claim for th e 2007- 2008 school year falls with the statutory exception cited below. S ee 8 N.Y.C.R.R. § 20 0.5 (j)(1)(i). The Parents have now had an opportunity to develop testimony regarding their statutory claim and I must find that it remains without merit. The Parents’ interpretation of accrual language, suggesting that they were unaware of their son’s and relied, to their detriment, upon the contrary representations of the District is both inconsistent with the facts a nd the law. Given the information available at the time of its CSE convenes and its obligations to the student, the District did n ot negligently fail to “diagnose” their son’s In fact, the Parents assert that they were well aware of their son’s “autistic tendencies” but chose to subjug ate their importance, a decision based upon both District and private opinions. September 27, 2010 Tr. at 4845-4846, June 25, 2010 Tr. at 3945-3048.

In the alternative, the Parents contend that the facts, sub ju dice, do not apply to the timeline referenced in 20 U.S.C. § 1415 [f][3][C], but are subsumed by the exceptions articulated in 20 U.S.C. § 14 15 [ f][3][D]. See 2 0 U.S.C. § 1415 [ f][3][C] and 8 N.Y.C.R.R. § 200.5 (j)(1)(i ). These exceptions essentially militate against the School District s’ ability to benefit from its own malfeasance and, in this manner, the due process rights of parents under these special circumstances are extended . The Parents maintain that their claim for 2007-200 8 remains viable and, as a consequence, they were given an opportunity to develop a factual basis for their position during the course of this litigation. In furtherance of the above, 8 N.Y.C.R.R. § 200.5 (j)(1)(i) states:

Timeline for requesting an impartial hearing. The request for an impartial due process hearing must be submitted within two years of the date the pare nt or agency knew or should have known about the alleged action that forms the basis of the co mplaint, except that the two year ti meline shall not apply to a parent if the parent was prevent ed from req uesting the impartial hearing due to specific misrepresentations by the school district that i t had resolved the problem for ming the basis of the complaint or the school district’s withholding of i nformation from the parent tha t was required to be provided to the parent under this Part or under Part 201 of this Title (emphasis added). The facts indicate that an Annual Review for the upc oming 2007-2008 school year occurred on May 2, 2 007. No further CSEs were c onvened until June 19, 20 08. January 4, 2 011 Tr. at 58 91-5892. The Parents’ 602 page Due Process Request wa s d ated July 31, 2009, m ailed August 4, 2009 and received by t he District on August 5, 2009, nearl y three m onths after their statutory window of opportunity. Exhs. i, iv (Exhibits A-B). As such, it would appear that the statute has tolled.

The Parents argue, however, that their claim for th e 2007-2008 school year properly falls within the exceptions articulated in 20 U.S.C. §1415 [f][3][D] and 8 N.Y.C.R.R. §200.5 (j)(1)(i). They base this claim upon the District’s fraudulent “spoliation” of emailed communications, alleging that th e District-wide purging of emails alone demonstrated the District’s “culpable state of mind.” As such, the Parents contend that they are entitled to t he expanded statute of limitations articulated in 8 N.Y.C.R.R. §200.5(j)(1)(i). Although their Request contains no allegations regarding School District “misrepresentations” or “improper withholding of information,” I note that this is precisely t he common sense scenario contemplated by Application of a Child with a Disability , [ Springville Griffith Institute Cent. Sch. Dist.], App. No. 04-061, supra.

Clearly, the provisions of 8 N.Y.C.R. R. 200.5 (j)( 1)(i) contemplate an element of willf ulness and intent. Given the Parents’ allegations regarding School D istrict “m isrepresentations” an d “withholding of information,” the y ha ve not established the level of intentional and willing decei t required under 8 N.Y.C.R.R. §200. 5 (j)(1)(i). In fact, as of July 2009 all electronic communications were automatically subject to a s even year retention period. There has been no allegation that any other parts of the child ’s education record have been destro yed. Finally, the partial destruction of emails prior to January 2 009, conducted with all students as p art of a “blind purge,” does not constitute the kind of affirmative misrepresentation and misconduct envisioned by the statute. Beyond the Parents’ claim to a negative inference generated by the District’s spoliation of electronic communications, there is simply no independent evidence of active and intentional “misrepresentations” and/or “withholding of information,” on the District ’s part which would establish the level of intentional and willing dece it required under 8 N.Y.C. R.R. §200.5 (j)(1)(i). Weighing (1) the developing use of electronic correspondence, (2) the limited storage capacity of the District’s computers, (3) the uniform purging of all electronic communications in the normal course of business and (4) the community custom and practice of limited retention against the Parents’ lack of corroborat ive evidence, I cannot draw a negative inference an d must re-affirm my view that the Parents’ claim for the 2007-2008 school year must be denied.

Point IV: Was C’s 2008-2009 IEP reasonably calculated to provide educational benefits consistent with the mandate of Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982])? Was the CSE improperly constituted? The regulations clearly articulate the requirement that a duly constituted CSE include “. . . (ii) not less than one regular education teacher of the student (8 N.Y.C.R.R. § 200.3 (a)(1)(ii ). I note, a priori, that the Parents allege several procedural defect s which compromise the integrit y of t he 2008-2009 IEP. Although the District rightfully notes that th e Parents’ Request does not specifically allege the absence of a general educ ation teacher during the CSE proceed ings on June 19, 2008, the Parents’ complaint clearly states, “. . . it failed to develop the IEP for the 2008- 2009 school year with a properly constituted CSE contrary to the requirements of IDEA.” Exh. i at 5. I find that the issue of a general education teacher is, therefore, sufficiently pleaded. At the outset, the Parents maintain that the CSE was not dul y constituted by virtue of t he fact that there wa s no general educ ation teacher present during the proceedings. In fact, the Parent testifie d that Ms. S had actually le ft the proceedings. June 3, 2010 Tr. at 3491; Nove mber 15, 2010 Tr. at 5511. The transcript, however, indicates that Ms. S was indeed p resent and participated acti vely at various points. Exh. E-1, passim. Moreover, three a ttorneys were present for these proceedings, two of whom we re specificall y representing the Parents’ interests, the third appea ring on behalf of the District. Under these circumstances, it is unlikely that Ms. S was absent for any period of time.

In the alternative, the Parents suggest that even if present, Ms. S was distracted by an end of year party which was taking place concurre ntly in her classroom. I a m not persuaded by this argument as the presumption regarding Ms. S’s state of mind is mere speculation, unsupported by any independent evidence. A s such, it hardly rises to t he level of actual absenteeism. Under these circumstances, I find no basis to conclude that the CSE was unduly constituted. I note additionally that although Ms . U participated at this CSE as the Assistant Head o f M’s Lower School, she was also C’s science teacher during the 2007-2008 school year.32 Nonetheless, assuming arguendo, the absence of a general education teacher, given the circumstances described, the record does not indicate that this procedural infir mity substantively affected the student's right to a FAPE or precluded the Parents from participating meaningfully during the CSE proceedings (Evans v. Bd. of Educ., 930 F. Supp.83, 93-94 [S.D.N.Y. 1996]; see W.A. v. Pascarella, 153 F. Supp.2d 1 44, 153 [ D. Conn. 2001] ; Brier v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996] ; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). As for the absence of a special educator of the child , the record clearly indicates that either Ms. G or Ms. I would have been C’s resource consultant teacher. Both are certified special educators. Ms. G is additionally certified in Preventing Academic Failure, has been trained in the Orton-Gillingham protocol and serves as an AIS/Reading Recovery teacher. Ms. I is additionally a certified level one Wilson trainer with additional level two training. Again, any claim regarding the absence of a special educator specifically identified as C’s teacher does not constitute a procedural infirmity whose impact substantively deprived the child of FAPE. While it is true that Ms. I had no personal knowledge of C, Ms. G had, in fact, observed C as a pre-schooler, assessed him formally as a kindergartener and attended C’s CPSE, 504 and CSE meetings through first grade. March 11, 2010 Tr. at 2459-2460. As C was no longer in attendance with in District commencing with the 2007-2 008 school year, the District reasonably relied upon the contribut ions of M and the Parents to formulate its IEP. Regrettably, neither was entirely forthcoming in terms of their descriptions of the child’s behavior. Did the CSE engage in impermissible pre-determination? Addressing the issue of due process, Federal and State regulations articulate specific protocols to ensure meaningful and reasonable parental participation in the IEP process. While personnel may properly bring drafts of some or all of the IEP content to the IEP meeting, the regulations mandate

Ms. U’s licensure and status during the 2008-2009 school year could not be confirmed as no M personnel testified. full discussion with the child's parents, before the IE P is finalized, of t he IEP’s drafted content and the child's needs and services to be provided to meet those needs” ( See Application of a Child with a Disability, Appeal No. 05-087, citing 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 32).

The regulations specifically state: “. . . Local educational authorities are specifically directed to make it clear to the parents at the outset of th e meeting that the services proposed by the agency are only recommendations for review and discussion with the parent" (34 C.F.R. § 300. 322; 8 NYCRR 200.5[d]; see also 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Question 32). Th e development of a draft IEP by a school district prior to a CSE meeting is not prohibited under federal or State law as long as the draft IEP is presented as a proposal, open for consideration, rather than as a matter already pre-decided without parental input (see Nack v. Orange City Sch. Dist., 454 F.3d 604, 610 [6th Cir. 2006] ). Predetermination is not sy nonymous with preparation (W.S. ex rel. C.S. v. D Sch Dist., 2006 WL 2771867 at *12 [S.D.N.Y. 2006]). But, a pre determination, or pre-selection of a student's program by a district, not subject to change or consideration o f parental input, is a procedural violation of the IDEA which can support a determination that a FAPE has been denied (W.S. v. D Sch. Dist., 454 F. Supp. 2 d 134, 147-48 [S.D.N.Y. 2006 ]; T.P. and S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [ 2d Cir. 2009]; Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 857-60 [6th Cir. 2004]). The transcript indicates th at M personnel participated via telephone and were asked to share their assessments of C Exh. E-1, passim. As the child had not been in attendance within District during the 2007- 2008 school year, the District largely relied upon material provided by M at t he June 19, 2008 CSE. In furtherance thereof, both Beth U and Alice T contributed anecdotal information as well as informal test scores indicating C’s present levels of performance.

Following a discussion of the child’ s academic/social status, Ms. E read the District’s proposed goals aloud and Committee members were asked for comment s. In this manner, goals were developed collaboratively with M personnel. As a result, achievement criteria were sometimes modified and in other instances the District’s goals were crafted s o that the y would be com patible wit h M’ s programming. Exh. E-1 at 19-22. For example, the CSE developed reading goals for short vowel and final blend sounds while increasing the criteria for recognizing sight words. Likewise, M personnel provided insights into C ’s math skills and his difficulty with word problem s, an issue not initially apparent to Ms. E. Exh. E-1 at 24. The record additionally indicates that M personnel assisted with the preparation of therapy goals, test accommodations, educational modifications and even the recommendation for an extended school year.

While it is true that M personnel were not physically in possession of the document from which Ms. E was reading, it does not appear that any other members of the CSE were furnished with this material. Similarly , Ms. H’s reference to IEP goals promulgated by IEP Direct did not preclude the Parents or M from pursuing an y inquiry they desired regarding C’s social goals. 33 Given th e active participation of M, I do not believe the lack of a draft denied the Parents an opportunity to participate in the formulation of their son' s IEP (see Application of a Child with a Disability, Appeal No. 06- 037). I note that there is no requirement that a draft IEP be provided to the P arents and, ironically, Parents frequently find th e use of a draft objection able. In fact, Ms. G testified that the CSE had largely deferred to M ’s recommendations, adopting their suggestions to the extent the District could replicate them. April 8, 2010 Tr. at 2781-2785, 27 86-2787. While all materials discussed should be furnished to the CSE team , the Parents’ argument regarding pre-determination is conclusory and unsubstantiated by the record.

Was the IEP of June 19, 2008 based upon stale assessments of C’s current levels of performance? I note that th e IEP of June 18, 2 008 reflects both IQ and achievement scores dating back to Ma y 2, 2006. The CSE, however, was under n o obligation to update or conduct ne w assessments. Federal and State regulations mandate that each student w ith a disability be reevaluated at least once every three years (34 C.F.R. § 300.303[ b][2]; 8 NYCRR §2 00.4[b][4]). Supplementing these assessments, at a minimum, were a current observation conducted by Dr. H, M’s non-standardized Stanford 10 Reading and Math Scores as well as the Spache, th e M Coding Test and their Report Car ds. The District was well within regulatory compliance and, in the absence of indications to the contrary , the District would have no reason to believe the earlier evaluations were inappropriate. Neither M nor the Parents requested updated evaluations nor did they suggest that C’s educational profile had altered significantly such that new assessments were indicated.

Although Ms. E offered to Photostat Ms. H’s documents, the CSE proceedings indicate some discussion between counsel regarding the need to share source materials for IEP goals, and it is unclear whether Dr. H’s materials were distributed. Is the June 1 9, 2008 procedurally deficient by virtue of its failure to identify specific peer-reviewed curriculum? The Parents additionally argue that th e IEP is procedurally flawed as it does not articulate any specific reference to peer-reviewed research. In fact, the IEP references the use of multi-sensory instructional accommodations and techniques, but does not identify any particular curriculum. While it is clear that the regulations conte mplate the provision of special education programming which, to the extent practical, is based upon empirical and peer-reviewed research, there is no IDEA mandate to specify or identify methodology on an IEP (see 20 U.S.C. §14149(d)( 1)(A)(i)(IV); 8 N. Y.C.R.R. §200.4(d)(2)(v)[b]). It has been long held that the precise teaching methodology utilized by a student's teacher is generally a matter to be left to the teacher, affording those most knowledgeable of the child t he greatest flexibility i n discharging their responsibility to implement the IEP (Rowley , supra at 204 ; M.M. v. S ch. Bd. of Miam i-Dade County, 437 F.3d 10 85, 1 102 [ 11th Cir. 2006] ; Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988]; Application of a Student with a Disability, Appeal No. 09-058; Application of the Dep't of Educ., Appeal No. 08-075). Quite simply, the failure to incorporate references to specific peer-reviewed research into the IEP does not translate into a denial of FAPE. Was the June 19, 2008 IEP reasonably calculated to confer an educational benefit upon C? It is a c ardinal rule in education that appropriate behavior management pr ecedes all instruction. Novice teachers learn this on day one of their professional live s. Thus, kindergarten teacher P testified on point that she considered the “work habits and social/emotional development” the most important part of the report card. December 13, 2010 Tr. at 2010. During the 2007-2008 school year, it is clear that M personnel believed C’s academic skills had developed significantly. As such, both Ms. U and Ms. T reported that the child had experienced a positive year, especially following a new medication regime. Nevertheless, for the 2008-2009 school year, both M and the District believed C continue d to require a “high level o f support” an d now recommended additional resource consultant periods along with individual counseling, a monthly psychological consult and a more extensive list of educational accommodations, including extended time provisions and an extended school year. Notwithstanding this, Dr. H continued to believe C’s behavior did not merit the conduct of a formalized Functional Behavior Analysis, and opined that the child’s management needs could be met through a “building level” plan. It is, frankl y, difficult to reconcile this position with that of Ms. P who noted that C’ s behavioral issues remained “off” even with the support of a 1:1 aide. Exh. 53. It is even more difficult to draw any conclusions about C’s ability to function independently, given M’s refusal to permit any District observation during unstructured periods such as lunch or transitions. February 8, 2010 Tr. at 1639. It is my opinion that C’ s continued assignment to a mainstream classroom with the support of a 1:1 aide does not sufficiently credit many of the statements made by both District and M personnel at the June 2008 CSE. Ironically, many of t he dy sfunctional aspects o f C’s history, dating back to pre-school, have largely remained constant. Ms. P’s observations in 2006 are mirrored by Ms. T’s current descriptions of C’ s rigidi ties. Exhs. 53, E-1. Likewise, Ms. K’s concern in 2006 that C would physically strike another child who infringed upon his personal space was echoed by Ms. T. June 25, 2010 Tr. at 3945-3048; Exhs. E-1, 11 at 6. The child’s ineffectual social skills, pragmatic language deficits, poor frustration tolerance and tantrums, lack of eye contact, perseveration and fi xation upon rules have remained constant. These intransigent preoccupations and obsessions, seemingly resistant to maturational processes, have only gained prominence as C’ s peers have matured. They exist in concert with the child’ s and speech disabilities; their impact is not substantially remedied by the child’s cheerful and cooperative de meanor. Exhs. 10-12, 14 , S. Given the pervasiveness of C’s behavioral and educational needs, it is unlikely that C could navigate the enhanced demands of a large mainstream class. While M not ed that m any of C’ s academic skills h ad progressed, the level of behavioral support required to achieve these academic goals was escalating. Despite the small homogeneous setting at M, a placement in which similarly profiled students shared C’ s classroom, the child exhibited tantrum-like outbursts approximately three times per day for t he duration of t he entire 2007-200 8 school year. Ms. T’s comments are captured in the proceedings’ transcript. She stated, “At times, however, he will be set on something; he wants to do it a certain way, he doesn’t want to change what he what he’s (sic) usually doing. And this can get him upset, the teacher has to pull him aside and talk with him but with the y can get him to calm down and then he is OK; but h e is very rigid with any changes that occur. It the teach er has him write his name whereas another teacher doesn’t usually have him do it he gets upset and doesn’t want to do it. He might yell. Uhm, but then he does calm down us so these are quick bursts and when they’re over, they’ve over . . .” Exh. E-1 at 9-10. On these occasions, C might be removed from the classroom until his com posure could be restored. The record further indicates that C had difficulty working within a group, a scenario in which Ms. U “really needed to be around” as well as walking in the hallway s, even when accompanied by personnel. Exh. E-1 at 11. Similarly, M personnel frequently reiterated the need for “careful” monitoring during art, music or physical education. Although lunch and recess were closely observed, Ms. U re marked that C needed “special monitoring” reporting that, “at times, he would have to come have his lunch in my office and we would spend some time together.” Exh. E-1 at 12. Although C was usually able to function appropriately, Ms. U noted that two teacher s were guiding the structured activities of lunch and recess. Clearly these disruptions a re unsustainable within a general education classroom and are destructive on any number of academic/social/psychological levels. The frequency and m agnitude of these events surely compel the development of a formalized BIP. While the assignment of a 1:1 aide might resolve so me of these behavioral crises, the impact of this intervention for C would only be increasingly isolating among his more sophisticated peers. Indeed, even within the nurturing confines of M, C’s asocial behaviors had ultimately rendered him the target of bullies. Again, these behavior management issues are reflective of the qualitative reservations articulated by Amy J in he r 2006 Report, a document referenced in the June 2008 IEP. Despite over-all language skills falling within average range, Ms. J noted, “It is i mportant to report that the scores C received on the TOLD-P3 do not accurately reflect the quality of C’s overall expressive language skills. C clearly exhibits difficulty with his self-generated daily language skills, especially in the absence o f visual support. Although C may understand something, he demonstrates word retrieval [ difficulty] and difficulty with his overall pragmatic language skills such as; turn taking, topic maintenance, interpersonal eye contact and reciprocal language skills.” Exhs. 10 at 5; 2. While the June 2008 IEP reflects an ap preciation of C’s quantitative scores, it neglects the qualitative nature of the ir production, a distinction long evidenced in C’ s performance. Given these marked behavioral issues and oddities, C’ s status with in a general education classroom would quickly devolve into class pariah. In the alternative, C a nd his 1:1 aide would likely exist as a class within a class. In fact , an aide cannot be utilized to fill in t he gaps where solid programming is unavailable. In furtherance thereof, Dr. Z testified that, give n the District’ s IEP, she could not recommend the assignment of an aide “be cause the aide would be there primarily for redirection and perhaps for representation, but that would take away from C’s ability to follow along with t he lesson as it was progressing. And the aide, quite frankly, is not an educator.” July 26, 2010 Tr. at 4498. By second grade, the ability to decode, process, store and retri eve grade level source materials presented in core subjects is critical. The cognitive capability t o followed leveled multi-step directions is largely presumed. Nevertheless, in th e report referenced within C’s IEP, Cori V, Ph.D. stated, “Given his intelligence and the speech-language intervention that he has already received, his language deficits are severe.” The neuropsychologist later described C’s ability to think abstractly as a “train wreck.” January 27, 2010 Tr. a t 1402; Exh. J. Although the testimony clearly indicates that the child’s cognitive strengths enabled him to produce strong scores within a testing paradigm , these scores were largely inconsistent wit h C’ s clinical and functional presentation. Indeed, this “dissonance” was not addressed during the June 2008 CSE. Nevertheless, the 2008-2 009 IEP doe s include provisions for multi-sensory instruction, sensory breaks and an assort ment of educational accommodations. While the academic goals articulated within the child’ s 2008-2009 IEP are appropriate, I question the feasibility of their implementation within the paradigm of a general education classroom. Clearly, the 1:1 aide can only be an adjunct to the instruction offered. Given the nature of C’s deficits, however, it is more likely that the aide would assume pri macy as C’ s teacher. In view of the child’s “occasional” ability to work independently , self-correct and interact cooperatively with peers, I am not persuaded that a mainstream classroom could serve C’s needs, even with the support of a 1:1 aide and five 45 minute consultant resource periods per week. Exh. 23, passim. Likewise, the record clearly supports t he conclusion that C requires integrated services which minimize the impact of transitions and poor generalization skills. Exhs. 10-14, 21, 23, 44. The June 19, 2008 require s a minimum of two special education pull-outs per day from a general education class and presu mes a fundamental ability t o generalize acquired skills from o ne environment to another. Exh. 2. It does not even begin to consider the additional transitions required by special classes, recess and lunch. The testimony is additionally silent regarding the dynamics of a general education classroom . It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas and personalities, some of which may be conflicting. While District witnesses easily testified regarding the appropriateness of t he 2008 IEP, their opinions did not specifically consider th e inherent challenges of a mainstream class for C and the disproportionate dependence C would likely develop upon his aide. Referencing “How the student’ s disability affects involvement and progress in the general education curriculum” the June 19, 2008 IEP states, “C continues to have difficulty with distractibility, peer interactions, making transitions and following a classroom routine. Delays in language and motor skills interfere with participation in age appropriate activities. These issues also interfere with the acquisition of reading and math skills. C

continues to have difficulty with visual motor integration, sensory processing, fine-motor skills and grapho-motor skills, as well as difficulties acquiring sound/symbol relationships.” In consideration of this description, full-time mainstream education, even with t he menu of s upports offered, is inconsistent with C’s profile. Finally, it is unclear whether M agreed with the educational planning i n which they were participating, a fact acknowle dged by Ms. E. Decem ber 8, 2009 Tr. at 695. Although p ersonnel understood th at the specifics of the IEP were bei ng adapted for i mplementation within Dist rict, the record is silent as to whether M believed C should be placed in a general education classroom. While participating in the presentation of C’ s current le vels of performance as well as the form ulation of goals and ed ucational accommodations, the indivi duals who knew C best were never given an opportunity to discuss the manner in which his educ ation would be delivered. There was simply no discussion about m ainstreaming or the viabilit y of a large general education class. Although m any aspects of the IEP are appropriate, under these circumstances, I do not believe the District has entirely met its burden of establishing FAPE.

Point V: Was M an appropriate education placement for C during the 2008-2009 school year?

Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that appl y i n determining whether th e [ s]chool [ d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 48 9 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 18 6, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F. 3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3 d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[ u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school i s relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 4 89 F .3d at 115 [ citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does n ot itself establish that the private placement offers adequate and appropriate education under the IDEA"] ]). A "private placement is only appropriate if i t provides ' education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 4 89

F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, 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 a s are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]).

I note, a pri ori, that the record includes report cards a nd testing from M and an application for admission, received by M January 25, 2007 but dated variously as October 2, 2006 and January 10, 2007. Exh. 57. It does n ot include any written evaluations or reports from M teachers, nor does it include work product samples, admission materials or projective testing presumably conducted in the course of determining the appropriateness of C as a M candidate. July 21, 2010 Tr. at 4287. There is, moreover, no literature describing M’s program or th e student profile service d. Although the Parent repeatedly testified that s he had always described C as a child suffering from Lyme disease with autistic tendencies, there i s no reference to or within t he application form . Indeed, the importance of these spectrum disorders is neglected entirely within Ms. W.’ s application, a particularly ironic twist as it was the District’s failure to recognize C’s hat formed the core of the Parents’ objection to its educational planning.

Rather, Ms. W. described C as someone who “ makes friends easily ,” “is friends wit h all his classmates,” and “has two best friends,” facts vigorously dispute d by the Parents when presented originally by the District. July 27, 2010 Tr. at 4668; Exh. 39 at 5. Instead, the child’s processing and language-based issues were underscored throughout th e application with a somewhat disingenuous reference to C’ s tendencies toward “b ossiness” and “stubborn behavior.” This is not surprising, however, in light of Ms. K ’s testimony that she “knew the type of children that they accept there and what they’re looking for and I had concerns because C does have aty pical characteristics, h as conversational limitation and I didn’t know whether that would exclude him from their process.” Although she saw no reason to exclude C’s diagnosis, adding “he is what he is,” clearly the Ws. believed a more forthcoming description of their child would jeopardize his admission. June 25, 2010 Tr. at 4047-4051.

Given the Parents’ inaccurate behavioral and soci al profile coupled with the lack of admission materials, one can only assu me that the appropriateness of M was, at best, tenuous from the start. In furtherance thereof, Dr. O testified that M “ha s very specific crit eria for children who remai n in that program who are legitimately accepted. They will require kids to have projective tests before they’ re accepted. If a kid has a profile of having m ore significant emotional issues or behavioral issues, they often do not accept those children into M.” July 21, 2010 Tr. at 4287. None of these materials were presented during the course of the hea ring. It is evi dent, however, that even d uring the 2007-2008 school year, C’s m anagement needs were troubleso me and, as a result, the Parents had begun experimenting with various medication protocols to stabilize his b ehavior in school. Dr. H’s positive observation on June 9, 2008 m ust be read in context with M’s comment s that the child had experienced a positive year, especially following a new medication regime which ha d only begun at the end of the school year . Exhs. 2 at 6; 22. In the absence of any testimony, the extent to which medication changes were precipitated by the severity of behavioral issues i s uncertain; si milarly, the timing is unknown.

Nevertheless, the child was accepted and remained there even after completing the 2007-2008 school year, despite M’s opinion that even within a 5:1 classr oom, C continued to require a “high level of support.” Exh. 2. Although M was clearly appropriate for some portion of the 2008-2009 school year, it is difficult to ascertain at what point this pl acement no l onger served C’ s needs. This issue is compounded by the School’s refusal to allow meaningful access to its student population, particularly during unstructured periods, and the absence of an y M witnesses at these proceedings. Ultimately , it is clear that, at so me point during the 2008-2009 school year, M was unequipped or unwilling to manage the child ’s behavioral issues. At the very latest, by February 2009, the child’s m anagement needs had spiraled out of control and behaviorist Z was retained by the Parents.

Although no one from M testified, the Parents’ private evaluators unifor mly testified that it is a private coeducational school for children with langua ge-based learning disabilities. It provides direct instruction in small class settings, utiliz es a structured multi-sensory approach to literacy and focuses on reading, writing, grammar, sentence structure and decoding skills. Although the District argues, in part, that M is an inappropriate placement as it does not provide speech and language services through a licensed and certified speech therapist, I note that the child’s report card reflects many literacy goals which complement those contained in the student's May 2, 2007 IEP.

Moreover, the small pupil: personnel ratio in many of C’s classes adequately co mpensates for the absence of a n aide. M’ s failure to offer psychological interventions is clearly a weakness of it s program, but this alone does not render the program inappropriate. Although Dr. H opined that t he lack of these psychological supports had contributed t o the deterioration in C ’s behavior at M, I a m not persuade d that this is the case. Rather, it is more likely that, at least in part, C’ s issues have become increasingly obvious as his peers have matured.

Clearly both Ms. T and Ms. U, two of the child’ s teachers, were familiar with C and thoroughly understood his academic, social, and management needs. As a result of his language deficits, the child was offered appropriate strategies for decoding , comprehension and retrieval. M personnel, moreover, unam biguously opined that C had made significant academic progress through its small, structured, language enriched classes. In view of the above, I find that M was appropriate for at least a portion of the school year, but not its entirety. October 5, 2010 Tr. at 4996. VI. Was the April 28, 2009 IEP reasonably calculated to confer an educational benefit upon C? I find that the April 28, 2009 CSE convene was little more than a well-orchestrated charade in which the District’s attempts to develop meaningful educational planning were met with studied omissions and exclusions. Although the Parents had already secured a series of updated evaluations, none were provided to the District. In fact, Dr. O’s last date of evaluation occurred on the same day as the CSE convene, but none of this information was shared. Again, the CSE was under no obligation to update or conduct new assessments as the present evaluations remained within t he three year regulatory period referenced earlier (34 C.F.R. § 300. 303[b][2]; 8 NYCRR §200. 4[b][4]). Had the Parents articulated their concerns at the April 28, 2009 meeting, the District would have been placed on notice as to a significant change in the nature of C’s disability and, as a consequence, it is likely the District would have accel erated its triennial evaluations which were, in any case, due shortly. Unaware of the “ magnitude, prom inence and nature of C’ s management issues,” as well as th e “unusual pro portions” of C’s anxiety, the District could not possibly develop a meaningful educational plan. July 21, 2010 Tr. at 4188-4189, 5018.

For exam ple, Dr. O opined that the assignm ent of an aide in conjunction with resource consultant services would be inappropriate as, “this is a ch ild who can’ t integrate things for a Rorschach response. And to be able to integrate the patchwork of a lot of pull-out, push-in services would not be helpful . . . plus the large siz e of the clas s would be overwhelming given his need for special ed intervention on the spot.” July 21, 2 010 Tr. at 420 3. She added, “Children of this magnitude of difficulty cannot i ntegrate piecemeal services. T hey cannot function appropriately i n a large classroom setting where they have to adapt to the curri culum. They cannot retain what is tau ght in a limited setting and develop enough skil ls and coordinate it to be able to make substantial g ains and functioning.” October 5, 2010 Tr. at 4981. While it is clear that the IEP did not accurately reflect the child’ s current levels of perform ance, this was wholly due to the Parents’ lack of c ommunication and cooperation with the District. Under these circumstances, the IEP could not possibly report th e present level s of acade mic achievement and the functional performance and indicate the individual needs of the student." (8 NYCRR 200.4[ d][2]; see 34 C.F.R. § 300.320 [a][1]). Moreover, a CSE is required to "consider" information about the student provided to, or by , the parents (8 NYCRR 200.4[ f][2][ii]; Application of a Child with a Disability, Appeal No. 07-139).

Rather than work collaboratively with the District it appears that the Parents embarked upon a course of acquiring extensive evaluations with out sharing their content or concerns. This included Dr. Z’ s observation in March, 2009 as well as assessments by Donna Geffner, Ph.D., Judith O, Ph.D. , Gail K and Kid Abilities. Exhs. B1-B-4, C. Even as the District was attempting to develop an IEP for the following year on April 28, 2009, the Parents were fu rtively gathering educational, psychological and speech assessments which were concealed from the District. In f act, Dr. O’s last date of evaluation occurred on t he same day as the CSE convene. Describing a child with “blatant” social ineptness, “bizarre” responses to proj ective testing and “lapses in reality testing,” Dr. O testified that she was apprised by April 2009 that C would be transferring to N. July 21, 2010 Tr. at 4286, 42 97-4298. None of this information was shared until July 30 , 2009. Exhs. B-1, B-2, B-3, B-4, C. Other assessments were disclosed long after the commencement of due process proceedings. Exh. D. For example, the October 16, 2009 NYU Child Study Center report by Roy L, M.D. was not exchanged until July 27, 2010 and appears to have been acquired for litigation purposes. Most notably, Dr. L’ s evaluation does not include among his multiple diagnoses although he was already in possession of Dr. O’s assessment.

Similarly, Ms. W.’ s lack of recall regarding discussions with the District about C’ s escalating behaviors from 2007-2009 at M is suspicious as these behaviors were markedly aber rant and upsetting. September 27, 2010 Tr. at 4838-4841. By the spring of 2009, Ms. W. testified that C “was pulling his hair out, he was chewing his fingernails . . . to the edge . . . h e was chewing his feet and his toenails . . . He was chewing his shirt to the point where the top button would be chewed off and he had been chewing his shirt for so long that it was just completely wet. I would say the top half of his shirt was completely wet that it required hi m to have a new shirt during the da y. The was chewing the edge of the desk and hw w as more upset and emotionally upset and he was, the teachers were saying, at times becoming more rigid in the classroom setting.” June 7, 2010 Tr. at 3538-3539. Given these facts, it is unlikely the CSE woul d have recommended a mainstrea m pl acement. Ultimately, i n the absence of this ke y inform ation, the District could n ot possibly develop an IEP which accurately reflected the child’ s current leve ls of performance. Clearly , C’s functional abilities had deteriorated and it was the Parents’ responsibility to share this information with the District. As a result, I will not review any evaluations which were secured by the Parents bu t not shared with the CSE until long after the CSE convened. Clearly the IDEA does not contemplate any duty of the local educational authority to function with Nostradamus-like powers.34 In fact, even Dr. H’s obse rvation did not occur with out consi derable stone-walling. Altho ugh it is clear that psy chologist H had requested permission to conduct an observation as early as March 12, 2009 in prep aration for t he child ’s Annual Review for 200 9-2010, this di d not occur. Exh. 33. Rather, emailed communications indicate that the P arent insisted that observations occur jointly with behaviorist Z. Nevertheless, the Parents’ prim ary obligation was t o the District , particularly in light of the Parent s’ subsequent demand for District reimbursement pursuant to unilateral transf er. The participation of Dr. Z was an option which unnecessar ily interfered with the expeditious conduct of a District observation. As a result, the CSE proceeded on April 28, 2009 wit hout t he benefit of a current observation, a particularly key piece of information as it was the District’s only opportunity to view C within his educational setting. This was particularly troublesome as the District was unable to confirm the reliability of C’ s shocking pr esentation on June 11, 2009 by conducting a second observation. Exhs. 37, C.

I will, however, consider these materials for the purpose of ascertaining the appropriateness of the Parents’ unilateral transfers. Having said this, I find that the April 28, 2009 IEP is largely a re-statement of the June 19, 200835 IEP and for essentially the same reasons arti culated earlier, the IEP is not entirely appropriate. Exhs. 2, 3. Assuming the accuracy of the information available to the CSE, the IEP does not provide an adequate level of support for the child. The assignment of a 1: 1 aide is not a panacea for the sy nergistic issues created by language deficits, attentional issues, processing and retrieval disabilities all of which are exacerbated by behavior management challenges. While the goals were again developed with Ms. U, I do not belie ve they can be i mplemented within the structure of a general education class, even with the educational accommodations and related services offered. For example, even within a classroom of seven students and two teachers, the IEP indicates that: “Comprehension skills can be im pacted by his abili ty to decode and inattenti on . . . he is able to make predictions with support and sometim es provides ir relevant information. . . . It is challenging for C to carry o ver spelling rules to independe nt writing task s. His handwriting tends to be inconsistent. C can for m letters correctly when he is motivated and slows down his pace. C often prefers to follow his own agenda on writing tasks . . . At this time, C cannot write a paragraph independently. C ’s h omework has b een inconsiste nt. Overall, he requires redirection d uring t he school day. He wants to express his own ideas and sometimes lacks awareness of his environment. C tends to be impulsive and is easily distracted . . . In math, he can understand and apply concepts with frequent exposure. C ne eds steps broken down int o smaller seg ments. . . Multi-step problem s are challenging for C” Although t he child was describe d as cooperative, “he can get easily upset when something does not meet his agenda. Competitive situations are especially challenging for C . . . in social studies and science, “he prefers to follow his own agenda and sometimes veers off of the topic. C needs ongoing support to stay on task. He has good background knowledge and likes to share with others but requires support to do this appropriately in front of peers.” Exh. 3 at 6. Given these deficits, it is unreasonable to expect su ccess within a mainstream classroom, even with the accommodations offered. The social consequences would, if nothing else, relegate C to leper-like isolation. Again, the re cord is silent as to whether M be lieved C should be placed in a general education classroom as the individuals who knew C best were never given an opportunity to discuss the manner in which his education would be delive red. The record does not indicate that any discussion about mainstreaming took place. Rather, at this point in time M had already acknowledged privately to the Parents that i t agreed with their decisio n to place C at N, a school which would address the child’ s inappropriate and dysfunctional behavior management issues more intensely.

A provision for study skills goals was added. Having said t his, based upon what the District knew of the child at the time this IEP was drafted, its goals were appropriate as were its educational modifications and provisions for sensory breaks, visual cues, prompts and manipulatives. I si mply do not believe these modifications could be meaningfully be provided within the framework of general education. Exh. 3.

Point VII: Was N an appropriate educational placement for C during the 2009-2010 school year?

On February 26, 2009, C was accepted to N. Exh. NN. Again, the record does not include a copy of its application for admission nor does it include any materials developed as a result of the admission process. There are no work product samples a nd no witnesses appeared on behalf of the School. There is, however a January 2010 report which reflects C’s progress in various tutorials (literacy , decoding, comprehension, written expression, math, social science and science) as well as an end of year summary letter and report card. Exh. PP, QQ. In addition to the School ’s documentation, independent observations, conducted on the same day by Drs. H and Z, were admitted into the record. Exhs. FF, EE. These observations were additionally supplemented by the recommendations of Dr. L, the physician responsible for C’s phar macological management. Exh. 64 . Finally, the Parents’ witnesses, Ms. K, Dr. O and Dr. Z testified regarding the nature of N’s program and their opinion of its appropriateness for C Clearly both the District and Parent observations we re consistent in terms of the level of sensory seeking, stereotypy observed. Dr. Z wrote, “When not actively engaged, C e mitted almost continual stereotypy that included fi nger movements, facial tics and non-contextual noises. He was not sitting quietly in his chair.” Exh. EE at 3. Notwithstanding this, the instructor was skillfully able to redirect C and he “provided excellent input to class discussions.” Similarly, Dr. H noted a great deal of distractibility and self-stimulatory behaviors (facial grimaces, nonsense sounds, sleeve chewing) but reported that “over-all it appeared that C had a good grasp of academic content and solid reading fluency was observed.” Both observe rs noted appropriate social behavior when another student had taken C’ s seat. In furtherance there of, his teach er advised that, although C needed “constant” reminders, the child had developed greater frustration tolerance and could wait until called upon without shouting out. Notwithstanding ongoing inattention, odd noises and disruptive behaviors, C’s responses were generally accurate and included good detail. Witnesses, moreover, testified that N provides direct instruction in small class settings, utilizes a structured multi-sensory approach to literacy and includes a behavioral component within their program. As with M, the progress reports reflect goals which are consistent a nd complementary to those articulated in the April 28, 2009 I EP. More importantly, N is directly addressing the aty pical social behaviors which interfere with C’s ability to function appropriately within the classroom. As such, his self-monitoring skills have improved, and C has demonstrated greater behavioral flexibility and problem-solving abilities. Exh. QQ at 1. Clearly, C has benefitted from the immediacy of its “in the moment” counseling. Although m any of the Parents’ witnesses testified generally as t o the appropriateness of N, it was clear that they lacked knowledge of the program specifics such as curriculum or training of personnel. In fact, Dr. O and Ms. K ’s knowledge was largely based upon their familiarity with other students who had attended. Notwithstanding this, I believe t he reports submitted by N’s educational advisor along with their extended observation opportunities sufficiently address the individualized needs of C and compensate for the va gueness of their testimony. In this manner, the question of appropriateness can be extrapolated through materials entered into evidence and testimony offered. As such, it is clear that N has met the standards of both Gagliardo and Frank G., offering specialized instruction which is specifically designed to meet the unique needs of C (Gagliardo, 4 89 F. 3d at 1 15, citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89). While N is not the least restrictive environment in which the child could have been educated during the 2009-2010, the requirement that children with disabilities be placed in the least restrictive environment must be balanced against the requirement that those children receive an a ppropriate education (Briggs v. Board of Educ., 882 F. 2d 688, 692 [2d Cir. 1989]). VIII. Are the Parents entitled to reimbursement for their Independent Educational Evaluations? Subject to certain limitations, federal and State regulations provide that a parent has the right to an Independent Educational Evaluation (hereinafter “IEE”) at public expense if the parent disagrees with an evaluation obtained b y the school district (34 C.F.R. § 30 0.502[a], [b]; 8 NYCRR 200. 5[g][1]). Specifically, if a parent requests an IEE at public expense, the school district must, without unnecessary delay , ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is a ppropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]; see, e.g., R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234 [ D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated parent's claim for IEE at public expense]; A.S. v. Norwalk Bd. of Educ., 183 F. Supp. 2d 534, 549 [D. Conn. 2002][upholding order of reimbursement where district failed to demonstrate that its evaluation was appropriate]). If an impartial hearing officer finds that a school district's evaluation is appropriate, a parent may not obtain an IE E at public expense (34 C .F.R. § 3 00.502[b][3]; 8 NYCRR 200.5[ g][1][v]; DeMerchant v. Springfield Sch. Dist., 2007 WL 25 72357 at *6 [ D. Vt. Sept. 4, 2007] ; Application of a Student with a Disability, Appeal No. 08-039; Application of a Child with a Disability, Appeal No. 07-126; Application of a Child with a Disability, Appeal No. 06-067; Application of the Bd. of Educ., Appeal No. 05-009; Application of a Child with a Disability, Appeal No. 04-082; Application of a Child with a Disability, Appeal No. 04-027). In addition, an unnecessary delay in the district seeking an impartial hearing to contest a parent' s request for an IEE m ay result in district liability f or an IEE at public expense (Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3 734289 [ N.D. Cal. Dec. 15, 200 6] [finding the district liable to pa y for an IEE due to nearly three months unnecessary delay in requesting an impartial hearing]; but see L.S. v. Abington Sch. Dist., 2007 WL 2851268 at *9, *10, *13 [E.D. Pa. Sept. 28, 2007] [six week delay in the district requesting an impartial hearing to dispute parent's request for IEE reimbursement is consistent with procedures and intent of IDEA where the district first attempted to resolve the matter]; see also Letter to Sapperstone, 21 IDELR 1127 [ OSEP 1994] [there is no specific time period within which a district must request an impartial hearing to dispute a parent's request for IEE reimbursement, but an impartial hearing request may not be delayed such that it interferes with a free appropriate public education]). The Parents have not m et their burden of demonstrating the inappropriateness of the D istrict’s evaluations. While the y may have disagreed w ith the m, their disagreement does not establish the level of inappropriateness contemplated by the regulations. Their disagreement has been non - specific; they have not requested any assessments and it is unclear which Distr ict evaluations they find objectionable. In fact, there is no testimony that this was ever an issue for the Parents. Rather, it appears that they secured whatever evaluations they desired in the absence of any discussion with the District. While Parents are always entitled to pursue whatever evaluations they desire, a request for reimbursement at tax-payer expense precipitates a set of responsibilities and duties which the Parents have not met. For this reason, the Parents are not entitled to reimbursement for expenses incurred by their related service providers. IX. Are the Parents entitled to equitable relief pursuant to Burlington for the 2008- 2009 and 2009- 2010 school years?

Is the Parents’ non-compliance with notice requirements a bar to recovery?

While the Parents failed to provide proper notice to the District of their unilateral placement pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 C.F.R. § 300.148(d)(1), this does not establish a fatal bar to recovery . The testimony indicates that the Parents did not receive a complete copy of their due process rights and under these circumstances, I find that their claim more properly falls within the exceptions articulated in U.S.C. § 141 2(a)(10)(C)(iv). See also R.B. v. Ne w York City Dep’ t of Educ, 713 F.Supp. 2nd 235, 247 [ S.D.N.Y. 2009]; Application of a Child with a Disability , App. No. 11-015. Although the facts at bar are quite distinct, the Court clearly noted that “the IDEA’s notice requirement “gives the school system an opportunity before the child is removed to assemble a team, evaluate the child, devise an appropriate plan a nd determine whether a FAPE can be provide d in the public schools.” R.B., supra, at 248. I n the instant matter, I note that the portion of the procedural safeguard notice provided to the Parents did n ot include the “Requirements for Unilateral Placement by Parents of Children in Private Schools at Public Expense.” Exh. 66. Nevertheless, the District did, in fact, convene its CSE and was given an opportunity to develop an educational plan based upon the evaluations it had. Therefore, they have not been prejudiced by the absence of the Parents’ 10 da y notice.

Beyond the issue of notice, do the Parents’ actions militate against their equitable entitlement to relief? It is clear that the Parents have largely excluded the District from the decision-making process wit h regard to the education of their son. Regrettably, this is a consider able breach o f their duty to work collaboratively with t he S chool District. 36 All of these factors must be considered in fashioning a remedy. In furtherance thereof I note:

The Parents made payments to M and N without notifying the District of their concerns about its recommended program .37 I am not persuaded b y their testimony that such payments were merely efforts to reserve a seat a nd did not actually establish “enrollment.” A s a result, the D istrict’s opportunity to develop a mutually agreeable IEP was foreclosed.

Were the Parents not asking the District to underwrite these expenses, much of their initiative and independence would be commendable. The Parents had already signed an enrollment contract by March 5, 2008 for M, but did not disclose this at the June 2008 CSE. Similarly, the record indicates that an advance deposit was made to N on March 17, 2009. This too was not shared at the April 2009 CSE. Exhs. RR, OO. The Parents failed to notify the District that they were unilaterall y obtaining private evaluat ions and failed to share multiple outside evaluations with the District, although these assessments were, in fact, shared among their own t eam of private providers . Even when the CSE convened on the v ery same day on which one of the asses sments was taking place, the Par ents concealed this inform ation from District personnel. While it appears that many of these evaluation s were secured for the purpose of developing insight into C’s behavioral issues, it is clear that the District was int entionally excluded from this information, un derscoring the Parents’ marginal interest, if any, in working collaboratively with the District. Rather, I believe many of these documents were collaterally secured for their utility in supporting the Parents’ litigation. Most egregious ly, the Parents furnished their own provider, Dr. Z, with supporting evalua tions, but did not share this same information w ith Dr. H although both were scheduled to observe C at the same time.

In contrast, Ms. I’s unrefuted testi mony indicates th at she was prevented from administering routine standardized testing on the WIAT because the Parents withheld consent. April 15, 2010 Tr. at 3282- 3283.

The Parents failed to provi de timely consent for an observation o f C for the 2 009-2010 school year and created unreasonable conditi ons upon which perm ission was ultimately extended. This included both their requirement that Dr. Z participate simultaneously and M’s requirement that the child not be observed during any unstructured times, including lunch and recess.

Although C could no lo nger function appropriately at M, the Parents’ underst atements regarding C’s placement at N were clearly misleading to the Distri ct. In fact, the Parents’ decision was not only predicated upon a mere preference that C’ s beha vioral issues be given precedence now that his academic skills had progressed. This su ggestion is disingenuous and inconsistent with the testi mony of their witnesses. Rather, their prioritization of C’s behavioral issues was a reflection of his dramatic deterioration and the fact that M could no longer manage his needs. N’ s “in the moment” counseling and “program advisor” were subordinate issues.

Similarly, M r. W. ’s testimony that he “had not noticed” an y “conduct” or behavior problems exhibited by C at M is simply irreconcilable with all of the testimony and evidence in this matter. November 15, 201 0 Tr. at 5516; Exhs. MM, NN, 00. While Mr. W. may no t have “noticed,” it is more than likely he was “aware” of these issue s. Ms. W.’ s failing memory when asked if she had described C’s behaviors to the District during th e April 28, 2009 was additionally unconvincing. The evasiveness of these responses was clear. Given C’ s disturbing and interfering behaviors, the failure to address these issues head-on would necessarily doom any educational planning in which the CSE engaged.

Ms. W.’s testimony regarding Dr. R’s status as C’s pediatrician between 200 6 and 2010 is unpersuasive, given the production of records indicating C was only seen twice during this period, once in 2006 and again in 2010. June 8 , 2010 Tr. at 3731-3735; Exhs. xvi, 67. Similarly, Ms. W.’s inability to articulate her basis for requesting a religious exemption for imm unizations is disturbing and inures to the issue of credibility. Rather, it was likely that t he Parents were reasonably anxious about the mercury preservatives utilized at that time, but concealed their concerns. July 27, 2010 Tr. at 4638-39; Exhs. GG, HH.

Although the Parents and their experts uniformly assert that C is a child on the autism spectrum, none of them included as an actual diagnosis in their reports. Exhs. 11, 14, 6 4, A, B-1,B-3, B-4, C. Even Dr. O, whose initial report was n ot exchange d until July 30, 2009, did not include ASD as a diagnosis although it is clear from the content of her report that she believed C “had symptomatology (previously masked by his attentional and linguistic deficits).” Exhs. B-1 at 5; D at 1. Likewise, Dr. Z’ s use of the term is a reference to Dr. O’ s report. Notwithstanding the Parent’s testimony, the voluminous record does not indicate that she ever used the words “Lyme disease with autistic tende ncies” and other than a slim reference t o on an abbreviated medical en trance form, the Parents’ serious and bona fide concerns were hardly communicated directly by themselves or their experts to the District. Although the Parents and their experts uniformly assert that C is a child on the none of them included as an actual diagnosis in their reports. Exhs. 11, 14, 6 4, A, B-1,B-3, B-4, C. Even Dr. O, whose initial report was n ot exchange d until July 30, 2009, did not include ASD as a diagnosis although it is clear from the content of her report that she believed C “had Asperger’s symptomatology (previously masked by his attentional and linguistic deficits).” Exhs. B-1 at 5; D at 1. Likewise, Dr. Z’ s use of the term is a reference to Dr. O’ s report. Notwithstanding the Parent’s testimony, the voluminous record does not indicate that she ever used the words “Lyme disease with autistic tende ncies” and other than a slim reference t o on an abbreviated medical en trance form, the Parents’ serious and bona fide concerns were hardly communicated directly by themselves or their experts to the District.

Finally, the Parents’ failure to exped itiously re-schedule a CSE convene to review the updated evaluations presented to the District in July 2009 must be considered. The Parents’ lack of urgency is inconsistent with their obligation to work coope ratively and collaboratively with the District. November 5, 2009 Tr. at 288-290; Exhs. 29, 31-32. All of these issues must be considered in terms of equitable factors which militate against the Parents’ right to recovery . While they do not negate the District’s responsibility to provide a FAPE, clearly they interfere with the District’s ability to do so. Conclusion The Parents’ request for relief is denied for the 2007-2008 school year. It is granted in part for the 2008-2009 and 2009-2010 school years, but m ust be reduced considerabl y based upon equitable considerations. Their request for reimbursement of related services and IEEs is denied.

Wherefore, it is hereby ordered that: Within thirty (30) days of the date of this Ord er, t he District shall reimburse the Paren ts in the amount of $12,500.00 for tuition payments made to the M School during the 2008-2009 school year. Within thirty (30) days of the date of this Ord er, t he District shall reimburse the Paren ts in the amount of $6500.00 for tuition payments made to N during the 2009-2010 school year.

Dated: May 4, 2011

_________________________________________ Lynn Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer

Persons in attendance on November 4, 2009

For the Parent:

Law Office of Peter P. C. by Peter , Esq. Guilia Frasca Mr. B, Parent Ms. A, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education

Persons in attendance on November 5, 2009

For the Parent:

Law Office of Peter , P. C. by Peter , Esq. Betty Mr. B, Parent Ms. A, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on November 25, 2009

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Guilia Frasca Mr. B, Parent Ms. A, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on December 8, 2009

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Mr. B, Parent Ms. A, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on January 11, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Guilia Ms. A, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on January 25, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter , Esq. Guilia Frasca Ms. A, Parent Mr. B, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Laura H, Ph.D., District School Psychologist

Persons in attendance on January 27, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Guilia Ms. A, Parent Mr. B, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Laura H, Ph.D., District School Psychologist

Persons in attendance on February 8, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Ms. A, Parent Mr. B, Parent

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Laura H, Ph.D., District School Psychologist

Persons in attendance on March 8, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent Mr. B, Parent Giulia Frasca

For the School District:

Ingerman L.L.P. by Ralph Esq Shirley E, Director of Pupil Personnel Services and Special Education, District Laura H, Ph.D., District School Psychologist

Persons in attendance on March 9, 2010

For the Parent:

Law Office of Peter , P. C. by Peter , Esq. Ms. A, Parent Mr. B, Parent Giulia Frasca

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Amy J, M.S., District Speech and Language Pathologist

Persons in attendance on March 10, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent Mr. B, Parent Giulia

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Amy J, M.S., District Speech and Language Pathologist

Persons in attendance on March 11, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Ms. A, Parent Mr. B, Parent Giulia

For the School District:

Ingerman L.L.P. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Carol G, M.S., Special Educator, District

Persons in attendance on April 8, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent

For the School District:

, P.C. by Ralph Esq.* Shirley E, Director of Pupil Personnel Services and Special Education, District Carol G, M.S., Special Educator, District Persons in attendance on April 13, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent Giulia

For the School District:

, P.C. by Ralph , Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Carol G, M.S., Special Educator, District Deborah I, M.S., Special Educator, District * note change in representation for remainder of proceedings

Persons in attendance on April 14, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent

For the School District:

, P.C. by , Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Deborah I, M.S., Special Educator, District

Persons in attendance on April 15, 2010

For the Parent:

Law Office of Peter D. , P. C. by Peter Esq. Ms. A, Parent

For the School District:

, P.C. by Ralph Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District Deborah I, M.S., Special Educator, District

Persons in attendance on June 3, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Ms. A, Parent Mr. B, Parent

For the School District:

, P.C. by Ralph , Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on June 7, 2010

For the Parent:

Law Office of Peter D. P. C. by Peter Esq. Ms. A, Parent

For the School District:

P.C. by , Esq. Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on June 8, 2010

For the Parent:

Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on June 25, 2010

For the Parent:

Ms. A, Parent Gail K, M.S., private Speech and Language Pathologist

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on July 21, 2010

For the Parent:

Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on July 26, 2010

For the Parent:

Ms. A, Parent Carol Z, Ph. D., private Psychologist

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on July 27, 2010

For the Parent:

Law Office of Peter Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on September 27, 2010

For the Parent:

, Esq. Ms. A, Parent Mr. G. W., Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District Persons in attendance on October 5, 2010

For the Parent:

Esq. Ms. A, Parent Judith O, Ph. D., private Psychologist

For the School District:

Esq.

Persons in attendance on October 28, 2010

For the Parent:

Law Ms. A, Parent Gail K, M.S., private Speech and Language Pathologist

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on November 15, 2010

For the Parent:

Law Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on November 29, 2010

For the Parent:

Jamie Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Persons in attendance on December 13, 2010

For the Parent:

Law Office of Ms. A, Parent

For the School District:

Education, District Michelle P, retired kindergarten teacher, District

Persons in attendance on January 4, 2010

For the Parent:

Law Office of Ms. A, Parent

For the School District:

Shirley E, Director of Pupil Personnel Services and Special Education, District

Footnotes

[1] The IEPs of March 3, 2005 and June 6, 2005 describe a history of gestational and breast milk Lyme disease with associated hand tremors. Additional co-morbidities include hypotonia, severe allergies and Ciliac Disease. The IEPs reference deficits in expressive and receptive language along with impairment of small motor function. 3

[2] 4

[3] Notwithstanding the recommendation, C was the only child assigned to the shadow.

[4] The witness distinguished a building level behavior plan from the more formalized behavior intervention plan requiring a functional behavior analysis. 6