Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

In the Matter of the Impartial Hearing brought by XXXX, on behalf of XXXX,

Petitioners,

-against-

XXXX, a/k/a XXXX

Respondent.

INTRODUCTION AND POSITION OF THE PARTIES

This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioner XXXX (hereinafter referred to as the “Parent”), requested an Impartial Hearing on behalf of XXXX child, XXXX (hereinafter referred to as the “Student”), contesting on substantive grounds, the appropriateness of an IEP and placement recommendation made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for The 2010/11 school year. The Parent seeks tuition reimbursement for the Student’s unilateral placement at XXXX, a private school located in XXXX, for the 2010/11 school year (Exs. IHO-3, J-1).

The District denies the allegations contained in the Parent’s Due Process Complaint Notice. It asserts that the Student has XXXX and that XXXX requires XXXX and XXXX, and that its CSE developed an IESP for the 2010/11 school year that was appropriate for the Student, that the Parent failed to establish that the services obtained at the XXXX were appropriate for the Student, and that equitable considerations do not support tuition reimbursement (Ex. J-1; see also District’s Post-Hearing Brief at p.1).

PROCEDURAL HISTORY

On October 18, 2010, the Parent requested an Impartial Hearing seeking tuition reimbursement for XXXX unilateral placement of the Student in the XXXX, a private school located in XXXX. XXXX alleged that on August 30, 2010, the CSE developed an IEP for the Student for the 2010/11 school year that was substantively inappropriate. XXXX also alleged that the placement recommended for the Student would not reasonably allow him to make XXXX, XXXX, and/or XXXX gains and would more likely cause him to regress in those domains without addressing XXXX areas of disability. In addition, XXXX alleged that the XXXX was appropriate to meet the Student’s educational needs, and that the equities favored tuition reimbursement (Exs. IHO-3, J-1; see also Parent’s Post-Hearing Brief at pp. 11-13).

On November 11, 2010, the IHO was advised that XXXX was selected to act as Impartial Hearing Officer. In an undated letter and in a letter dated November 15, 2010, the IHO received written confirmations of XXXX appointment (Exs. IHO-1, IHO-2).

On December 1, 2010, a pre-hearing telephone conference was held for the purpose of clarifying the issues. One date was scheduled for hearing at that time. On January 7, 2011, additional hearing dates were scheduled (Exs. IHO-8, IHO-12).

There were a total of 3 days of hearing in the matter. The first day of impartial hearing was held on February 17, 2011. Additional hearings were held on February 28, 2011 and March 2, 2011 (R. 1, 290, 548).

The District elected not to present a direct case and conceded that it could not meet its burden of proof with respect to the appropriateness of its placement recommendations. The Parent presented 4 witnesses on XXXX direct case. The District presented 2 witnesses on its rebuttal case. The transcript is 758 pages in length. The District and the Parent submitted a total of 33 joint exhibits. The Impartial Hearing Officer submitted a total of 16 exhibits. The Impartial Hearing Officer granted a total of 5 requests for extension of the 45 day rule (R. 23; Exs. IHO-11, IHO-13, IHO-14, IHO-15, IHO-16). The record close date in this case was extended through and including May 20, 2011, and the IHO’s decision was due on June 3, 2011 (Ex. IHO-16). Both parties submitted post-hearing briefs.

ISSUES

The Parent asserts that the Student’s unilateral placement at the XXXX for the 2010/11 school year was appropriate to meet XXXX educational needs and that the equities balance in favor of tuition reimbursement to the Parent.

The District asserts that the Parent failed to establish that the services obtained at the XXXX were appropriate for the Student, and that equitable considerations do not support tuition reimbursement to the Parent.

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX. XXXX is classified as a XXXX. XXXX has XXXX, for which XXXX uses an XXXX, and XXXX is currently prescribed medication for issues with XXXX and XXXX. The Student has been diagnosed with an XXXX XXXX (“XXXX”). XXXX demonstrates a range of needs in both XXXX areas of performance. The Student demonstrates XXXX, XXXX, and a lack of XXXX. The Student has difficulty XXXX XXXX XXXX, XXXX, and XXXX. XXXX also has XXXX needs. The Student exhibits difficulties with XXXX due to difficulties XXXX and getting XXXX. It is further exacerbated by XXXX. As XXXX XXXX skills are developing, XXXX requires alternate means to XXXX and demonstrate XXXX. XXXX also demonstrates difficulty XXXX XXXX and XXXX. XXXX and XXXX issues impede XXXX performance. The Student exhibits XXXX during the school day and needs to learn XXXX to deal with XXXX. XXXX needs a XXXX with XXXX. XXXX also needs XXXX to help with the XXXX and XXXX (Exs. J-1, J-4, J-6, J-12, J-13, J-20, J-21).

The Parent testified that XXXX possesses a XXXX and that XXXX. XXXX has XXXX, a XXXX, and XXXX. XXXX the Student’s XXXX on XXXX. The Student has XXXX XXXX since XXXX, and has not XXXX with XXXX since XXXX (R. 57-60).

The Parent XXXX Student in XXXX, since XXXX. XXXX started in a XXXX in XXXX, XXXX, known as XXXX, XXXX XXXX was XXXX. XXXX attended XXXX for approximately one year. XXXX was XXXX placed in a XXXX called XXXX, also located in XXXX, for just under a year. XXXX next placement was at XXXX for two years. After that, XXXX attended XXXX in XXXX, for a period of one year (R. 60-62).

The Parent testified that the Student’s functioning first became a concern during XXXX placement at XXXX. XXXX experienced XXXX and XXXX had difficulties with XXXX and XXXX. XXXX was not tested at that time. There were XXXX students in XXXX, and due to XXXX, XXXX was transferred to a different program located XXXX, where there were XXXX. The Parent stated that XXXX went XXXX, XXXX would “XXXX” or XXXX would start XXXX and XXXX was removed fairly quickly and placed in XXXX XXXX. XXXX stated that the program had XXXX, made up of approximately XXXX students, together with two XXXX. The Student had difficulty in that setting. XXXX teacher reported to the Parent that XXXX could not XXXX that XXXX required XXXX; that XXXX had difficulty with XXXX activities; that XXXX had difficulty with XXXX and XXXX; that XXXX was becoming increasingly XXXX; that XXXX was having difficulty XXXX that there was concern that XXXX had an XXXX, and that XXXX was XXXX. XXXX removed him from the school (R. 62-65).

The Parent testified that by the time the Student left XXXX, the Student had already been evaluated by XXXX, XXXX, and by XXXX. XXXX stated that the Student had undergone a XXXX evaluation by XXXX, who explained to the Parent the Student’ s XXXX, The type of XXXX in which XXXX would perform the best, and what kinds of approaches might work better for him than others. Based on XXXX research and evaluation, the Parent determined to enroll the Student in XXXX program at XXXX (“XXXX”), located at XXXX in XXXX. The director of XXXX school explained to the Parent XXXX familiarity with XXXX, their ability to provide XXXX did not believe was XXXX, and that would allow for a lot of XXXX during the day. The Parent was also told that the teachers were very knowledgeable and had all gone to seminars and workshops, and knew quite a lot about XXXX and XXXX. The director also stated that although XXXX was XXXX of what the Parent wanted, XXXX believed that the Student would be able to XXXX because XXXX. XXXX attended XXXX (R. 66-69).

The Parent testified that the Student attended XXXX for two years: during XXXX in a class with XXXX and in XXXX in a class with XXXX, together with XXXX and XXXX. XXXX stated that during the XXXX, XXXX began to get feedback from XXXX that XXXX; that XXXX was XXXX and XXXX was very interested in XXXX; that XXXX had difficulties with XXXX and XXXX; that XXXX was “XXXX;” that XXXX was struggling with XXXX; and that XXXX was XXXX. Those comments were also echoed during XXXX. The Parent stated that while the Student was in the XXXX program, XXXX received XXXX through the XXXX, identified as the district of location. In XXXX, XXXX continued to receive XXXX, and XXXX also received XXXX and XXXX, together with XXXX in XXXX and XXXX. XXXX also received the services of XXXX (a “XXXX”), through the XXXX, which were supposed to be provided XXXX, which was ultimately provided XXXX. The Student also participated in XXXX. On cross-examination, the Parent clarified that in addition to the Student’s participation in XXXX as part of the XXXX program, XXXX provided the Student with XXXX during XXXX and during XXXX grade. The Parent stated XXXX concern with the Student’s difficulty in XXXX, XXXX and XXXX. On re-direct examination, the Parent stated that XXXX were provided by XXXX. In addition, the Parent provided the services of XXXX for the Student at XXXX. The XXXX sessions started for 30 minutes but often they would last for an hour (R. 70- 75, 80, 85-86, 486-490, 501).

The Parent testified that the Student was classified as XXXX and declassified in XXXX by XXXX. XXXX was reclassified in XXXX by XXXX as XXXX. The Parent stated that at the time XXXX started XXXX, professionals mentioned the conditions of XXXX and XXXX as related to the Student. XXXX stated that in XXXX when the Student was XXXX years old, XXXX recommended that the Student see XXXX, XXXX of XXXX at XXXX, due to a diagnosis of XXXX (“XXXX”), as well as XXXX and a XXXX. The Student continues to see XXXX every 6 weeks to the present time. At the age of XXXX, the Student participated in XXXX, where the Parent met XXXX, The Student’s XXXX. XXXX also administered XXXX with the Student XXXX, in addition to XXXX XXXX that XXXX received as XXXX through XXXX, at XXXX (R. 76-81).

The Parent testified that XXXX received professional advice from several individuals with respect to possible placement for the Student after XXXX left XXXX. XXXX spoke with XXXX, XXXX, in addition to XXXX, XXXX, XXXX, and XXXX, a consultant hired by XXXX, whose area of expertise is XXXX or XXXX. The consensus was that the Student needed XXXX; XXXX to address XXXX XXXX, XXXX, and XXXX and XXXX issues; XXXX, as opposed to XXXX; and a program that had XXXX as part of XXXX. There was also discussion regarding XXXX, in that the Student responded well to XXXX (R. 81-84).

The Parent testified that in preparation for the 2009/10 school year, the Student’s XXXX grade year, XXXX spoke with XXXX, with XXXX, regarding possible placements for XXXX. XXXX stated that at that time, XXXX needed a school who could teach a XXXX child, and XXXX could not do that. The Parent stated that XXXX offered placement in XXXX, which had XXXX, in XXXX. XXXX gave it no consideration due to XXXX. Instead, XXXX enrolled the Student at XXXX (“XXXX”), on the recommendation of XXXX. The Parent described XXXX as XXXX containing XXXX, which was located in XXXX, XXXX. It was XXXX. The Student was the XXXX. XXXX stated that XXXX was told that XXXX would be able to accommodate XXXX, consisting of XXXX, that they were all trained and very knowledgeable about XXXX, XXXX, and XXXX issues, and XXXX would have a lot of opportunity to XXXX. There was XXXX. The XXXX, the district of location, provided XXXX with XXXX in the XXXX program. The Parent testified that XXXX knew that XXXX was not a special school that could provide instruction to a student with XXXX. XXXX knew of XXXX through professional recommendations, and believed it could provide instruction to XXXX, but there was no availability at that time (R. 86-92).

The Parent stated that for the 2009/10 school year, the Student attended XXXX, and XXXX received XXXX and XXXX through XXXX. The XXXX, the Student’s district of residence, provided the Student with XXXX and XXXX through XXXX. By that time, XXXX recognized XXXX reclassification of the Student, and XXXX also reclassified XXXX as XXXX. XXXX received XXXX. XXXX received XXXX. XXXX received XXXX and XXXX. On cross-examination, the Parent stated that the Student continued to attend XXXX with XXXX during XXXX at XXXX (R. 91-94, 490).

The Parent testified that XXXX began to look at different special needs schools during the 2009/10 school year because the Student was struggling at XXXX. XXXX was guided by XXXX, XXXX, and XXXX. XXXX conducted research and visited a number of schools, such as XXXX, XXXX, XXXX, XXXX, XXXX, and XXXX. XXXX was looking for XXXX; XXXX, but in particular XXXX and XXXX; a specialized XXXX; and a XXXX because the Parent XXXX. The Student was XXXX and was not XXXX. XXXX was also looking for a school to address the Student’s XXXX, XXXX, and XXXX. XXXX looked for a school that could accommodate XXXX issues with XXXX and XXXX, and that offered XXXX. XXXX stated that XXXX’s report influenced the search (R. 97-100, 102; Ex. J-18).

The Parent testified that as of the time of XXXX’s report (i.e., October 2009), the Student took medications for XXXX, XXXX, and XXXX. XXXX stated that the Student’s XXXX skills and XXXX were always an issue. XXXX said that the Student had XXXX from the beginning of XXXX and XXXX became more XXXX and interfered with XXXX XXXX. XXXX stated that XXXX looked at schools starting in the fall 2009 through March 2010. XXXX stated that XXXX provided XXXX’s report to the XXXX CSE, and they offered XXXX, which consisted of XXXX, that was XXXX for a period of time, and XXXX for XXXX and XXXX services, as well as XXXX, and possibly XXXX, in the XXXX, a public school that is part of XXXX. The Parent stated that XXXX observed XXXX program and rejected it because XXXX, it was XXXX, XXXX, XXXX and too XXXX, that there was XXXX, and there was no XXXX and thought it would be XXXX (R. 100-104; Ex. J-4).

The Parent testified that XXXX observed XXXX’s program prior to the CSE meeting at which it was recommended. XXXX stated that at the end of The CSE meeting, XXXX told XXXX that XXXX wanted to create a program for XXXX. Shortly after the CSE meeting, the Parent knew that XXXX was going to be XXXX, XXXX was XXXX, and XXXX was sure XXXX was not going to be staying in XXXX. XXXX stated that XXXX did not know where XXXX would go. Within 10 days of The CSE meeting, the Parent signed a contract for the Student’s attendance at XXXX for the 2010/11 school year. XXXX was XXXX in XXXX for XXXX. XXXX spent XXXX at XXXX in XXXX, XXXX, and the XXXX at XXXX in XXXX, XXXX. XXXX never XXXX with XXXX again in XXXX. XXXX moved out of XXXX house in XXXX on August 4, 2010. XXXX determined to move to XXXX in July 2010. XXXX saw the rental in June 2010 and decided upon it in July 2010. XXXX house in XXXX was XXXX (R. 105-106, 109-110, 112-114; Exs. J-4, J-32).

The Parent stated that XXXX advised XXXX and the XXXX CSE about XXXX interest in the XXXX and that XXXX stated to XXXX privately XXXX opinion that it was an appropriate placement for the Student and that the Student needs XXXX. The Student remained at XXXX through the end of The 2009/10 school year for XXXX grade year. XXXX services continued into XXXX (R. 108-110).

The Parent testified that XXXX applied to XXXX for the Student’s admission sometime in the spring 2010, at some time prior to signing the contract on April 19, 2010, because XXXX thought it was an appropriate placement for the Student. On cross-examination, the Parent testified that XXXX had an initial meeting with XXXX of XXXX when the Student was in XXXX, in the 2008/09 school year. The Parent also considered XXXX and XXXX’s recommended placement for the 2010/11 school year, but ultimately rejected it, and stated the reasons for XXXX rejection to the XXXX CSE. XXXX had an advocate accompany XXXX to XXXX’s CSE meeting. On cross-examination, the Parent confirmed that in additional to an educational advocate, XXXX was also accompanied to the XXXX CSE by XXXX and XXXX. The Parent stated that XXXX knew that the Student would attend XXXX unless XXXX could find something else. XXXX stated that the Student was taking the bus for 2-1/2 years going between 45 minutes and 1-1/2 hours one way, so XXXX wanted to move as close as XXXX could to XXXX. XXXX stated that XXXX saw places in XXXX and XXXX, but the XXXX apartment in XXXX was what XXXX could afford, and XXXX took into consideration the XXXX and XXXX the Student would have (R. 111-114, 444-445, 448-450; Ex. J-32).

The Parent stated that XXXX search for a new residence took a period of months during the spring 2010. XXXX also stated that XXXX signed the contract for XXXX in April 2010 and paid a non-refundable deposit of $ to reserve a spot for the Student for the 2010/11 school year. XXXX testified that XXXX contacted XXXX to advise him that XXXX was moving into the District on August 4; XXXX gave him XXXX; XXXX told him that XXXX was enrolled in XXXX; that XXXX had an IEP from XXXX; that XXXX received XXXX; and that they needed to have a CSE meeting. XXXX stated that XXXX told XXXX to contact XXXX when they moved into the District, that XXXX was familiar with XXXX, and that XXXX believed they would work something out. XXXX stated that the conversation occurred either in the end of June or the beginning of July 2010 (R. 210-214).

The Parent testified that XXXX received a letter from XXXX dated July 29, 2010, scheduling a CSE meeting for August 30, 2010. The Parent attended the CSE meeting with an advocate, XXXX. On cross-examination, the Parent confirmed that XXXX did not bring either XXXX or XXXX to XXXX CSE meeting in the District, even though they accompanied XXXX to the CSE meeting in XXXX. The Parent stated that XXXX signed a release for records and the District had several documents in its possession, including XXXX’s reports, XXXX’s report, and XXXX IEP from XXXX. XXXX stated that XXXX was enrolled in XXXX and XXXX asked the CSE what programs the District had to offer. XXXX remembered the special education teacher asking XXXX about the Student’s XXXX and someone else asked about the manner in which XXXX was receiving XXXX. The XXXX Parent testified that in response to XXXX’s question, XXXX responded that there was a classroom, but that it was not comprised at that time. The Parent asked to see the classroom. XXXX told XXXX to call the principal to set up a time to see the class. XXXX contacted the principal and XXXX also contacted XXXX, but XXXX was unable to see the classroom because there was a substitute teacher filling in for another substitute teacher. XXXX was told that the original substitute would not be back for 6 weeks due to a family emergency, and the Parent responded that was too long to go without observing the proposed class. XXXX ended up observing the classroom on September 23, 2010. The teacher who was on leave was the XXXX of the proposed class (R. 215-224, 444-445; Exs. J-7, J-8).

The Parent stated that XXXX observed the proposed class for 1-1/2 hours with XXXX and XXXX. XXXX was not accompanied by XXXX advocate. XXXX told XXXX that the Parent would send a letter after XXXX observation. The Parent wrote a letter that was edited by XXXX and submitted to XXXX. The Parent stated that XXXX requested a class profile at the CSE meeting and was provided with a document on the day of The observation, and it did not contain any information regarding IQ scores or any diagnoses (R. 221-226; Ex. J-8).

The Parent testified that XXXX told The CSE at the August 30 meeting that XXXX was XXXX and XXXX; that XXXX had a great deal of XXXX; that XXXX stated that XXXX failed at 3 previous schools and that XXXX described XXXX own XXXX; that XXXX lacked XXXX; and XXXX described what had not been working for XXXX and XXXX concerns. There was also discussion that XXXX was not appropriate for the Student. XXXX stated that XXXX’s report was discussed at the meeting by XXXX and by XXXX. XXXX did not recall anyone reviewing the recommendations contained in XXXX’s report, and XXXX did not recall that anyone had any questions about XXXX’s report, but XXXX remembered reviewing the IEP (R. 226-228).

On cross-examination, the Parent testified that XXXX were discussed at the District’s CSE meeting in August 2010, that XXXX did not disagree that the Student needed XXXX, but XXXX did not agree with XXXX. The District recommended XXXX and XXXX. XXXX also testified that the District recommended XXXX. XXXX also stated that after having discussions with XXXX staff, specifically XXXX, XXXX and XXXX, XXXX spoke with the District’s XXXX and asked XXXX to go to XXXX to evaluate the Student. XXXX confirmed that XXXX observed The Student at XXXX in The beginning of September and stated to the Parent that “XXXX.” On re-direct examination, the Parent testified that the XXXX staff felt that that the Student did not require XXXX because XXXX, and that the Student XXXX (R. 465-473, 502-509; Exs. J-6, J-9).

The Parent testified that after XXXX sent XXXX letter to XXXX, XXXX responded in XXXX. XXXX confirmed the truth of XXXX’s statements that XXXX was interested in viewing the District’s XXXX class and that XXXX had previously determined to place XXXX child at XXXX. On cross-examination, the Parent confirmed that XXXX advised XXXX that XXXX was scheduling a CSE meeting on October 18, 2010 to discuss XXXX concerns, and that XXXX responded that XXXX was unable to attend. XXXX reviewed a draft IEP that was provided to XXXX at the CSE meeting and stated that XXXX observed the XXXX; that XXXX did not agree with the comment contained on pages 3 and 4 which stated that XXXX Student had no XXXX. XXXX also looked at page 6 and noted that the listed individuals in attendance at the meeting did not include the Parent or XXXX. XXXX also stated that XXXX excused XXXX from the meeting before goals were reviewed by XXXX (R. 228-233, 455-458; Exs. J-5, J-8, J-10, J-11).

The Parent reviewed the IEP for the 2010/11 school year and stated that the attendees listed as having been at the meeting were accurate. XXXX also reviewed an e-mail that XXXX sent to XXXX regarding the elimination of XXXX and the addition of XXXX. XXXX stated that the Student, XXXX, told XXXX that XXXX did not want to be removed from any of XXXX classes at XXXX to receive XXXX, and that XXXX felt that XXXX was getting what XXXX needed through the XXXX curriculum. The Parent spoke with XXXX, XXXX, and XXXX, and they stated their agreement that XXXX should be dropped because XXXX issues in that area were already being addressed at XXXX, and that the District had never initiated those services for the Student. I note that the IEP for The 2010/11 school year does not contain a recommendation for XXXX, but it was apparently recommended, as evidenced by the Parent’s request on September 28, 2010 to remove the recommendation for XXXX and replace it with XXXX (R. 233-242; Exs. J-6, J-9).

The Parent also stated that a recommendation for XXXX was discussed at the CSE meeting held on August 30, 2010. The Parent stated at the meeting that the Student received XXXX from XXXX for years and they were asking for XXXX to continue with XXXX for purposes of continuity. XXXX responded that XXXX would ask the Superintendent of Schools if the District would pay for XXXX’s services in lieu of providing its own XXXX. The Parent reported that the Superintendent declined the Parent’s request and that as a result, XXXX refused XXXX from the District. The Student continues to see XXXX privately at the Parent’s expense (R. 242-245, 720-722; Ex. J-6).

On cross-examination, the Parent confirmed that for several years, the Student had been receiving XXXX for XXXX XXXX and XXXX. During the 2008/09 school year, the Student received XXXX at XXXX. XXXX was XXXX. During the 2009/10 school year, XXXX continued to receive XXXX. XXXX also stated that at the CSE meeting held in XXXX in preparation for the 2010/11 school year, its CSE obtained an updated XXXX evaluation from XXXX. In XXXX report, the evaluator noted that XXXX during that time was “emphasizing XXXX.” The evaluator recommended continuation of XXXX but at an increased frequency of 2 times per week for 45 minutes to address XXXX and XXXX issues. XXXX also stated XXXX feeling that the Student may benefit from the services of a XXXX to “help XXXX.” The Parent stated that the evaluator told XXXX that the Student was less cooperative in XXXX than XXXX previously had been, during the period between December 2009 and April 2010. XXXX also confirmed that the XXXX CSE adopted the XXXX’s recommendations for XXXX and for XXXX. XXXX was recommended by XXXX 2 times per week for 30 minutes. The Parent confirmed that there was also discussion about a XXXX for the Student, but stated that it was not for XXXX, but rather for XXXX. The Student’s XXXX stated that the Student XXXX (R. 458-465, 470-472, 480-481; Exs. J-4, J-12, J-15, J-22).

Also on cross-examination, the Parent confirmed that the Student received XXXX for the 2009/10 school year from XXXX. The XXXX reported, and the Parent confirmed, that due to XXXX circumstances, the Parent placed XXXX and XXXX on hold when XXXX. The Parent confirmed that, similar to the XXXX, the XXXX noted that XXXX, and that was a big issue of concern to the Parent. XXXX also confirmed that that XXXX and XXXX often worked as a team on XXXX, XXXX, XXXX, and XXXX. XXXX confirmed that the Student continued to have issues in those areas as of the time of the XXXX CSE meeting in April 2010, that XXXX were recommended for XXXX and XXXX, that the Student participated in those services in XXXX, and that both XXXX and District CSE’s recommended maintaining XXXX for the 2010/11 school year. On re-direct examination, the Parent testified that the Student no longer goes to XXXX during the 2010/11 school year, because it was discontinued by XXXX and not recommended by the District (R. 473-477, 501-503; Exs. J-4, J-6, J-14, J-16).

The Parent also testified on cross-examination that the Student’s XXXX during the 2009/10 school year, XXXX, had concerns regarding XXXX, and the Parent confirmed that the Student was XXXX due to XXXX’s and due to XXXX at school. XXXX also confirmed that XXXX used some XXXX to help the Student XXXX during XXXX. The Parent stated that XXXX confirmed for the Parent that the Student was XXXX and XXXX, such as XXXX and XXXX, and XXXX needed much XXXX. The Parent confirmed that the Student’s XXXX was tested and XXXX had an XXXX evaluation, but no issues were identified in either examination. On re-direct examination, the Parent testified that after having been with the Student for the first two weeks of school, XXXX stated to the Parent that XXXX was not qualified to address the Student’s particular needs, specifically XXXX. However, XXXX continued to work with the Student through the duration of the Student’s XXXX grade year (R. 479-485, 496- 500; Ex. J-13).

The Parent testified that since the Student began school at XXXX, XXXX has observed changes in him, including that XXXX observed him XXXX, XXXX, trying to XXXX, XXXX, XXXX, and XXXX. XXXX observed XXXX “XXXX” in that XXXX is much more XXXX; XXXX is XXXX before “XXXX.” XXXX stated that XXXX has observed him at XXXX and XXXX seems XXXX, in that previously when XXXX was XXXX, XXXX XXXX and XXXX, and that when XXXX observed him at XXXX, XXXX was XXXX. XXXX stated that although XXXX is still struggling with XXXX and XXXX, XXXX is “XXXX” and that “XXXX.” On cross-examination, The Parent stated that the Student was diagnosed with a XXXX, that XXXX takes medication for XXXX which also addresses XXXX, and that XXXX continued to have XXXX as of the date of XXXX testimony. XXXX also stated that XXXX takes medication for XXXX, and XXXX still evidenced symptoms of XXXX as of the date of XXXX testimony. On re-direct examination, the Parent stated that outside of XXXX, the Student’s XXXX has greatly improved. XXXX said that XXXX has observed the Student in XXXX placement at XXXX and that XXXX is XXXX both XXXX and XXXX school. XXXX stated that the Student no longer XXXX, and stated XXXX (R. 245-246, 248, 512-514).

The Parent stated that XXXX has observed progress in XXXX, in that XXXX was learning XXXX. XXXX also stated that the Student was not previously XXXX at home and that at the time of XXXX testimony, XXXX is XXXX. XXXX also stated that the Student told XXXX, “XXXX” and that XXXX says it all of the time (R. 247-249).

The Parent testified that XXXX determinations to sign the XXXX contract and to reject the District’s recommended program were guided by XXXX, XXXX, and XXXX. XXXX confirmed that the child is a XXXX and that XXXX received $ in financial aid. The total tuition for the Student for the 2010/11 school year was $ and the Parent made monthly payments through March 2011, at which time the $ would be paid in full (R. 249-251; Exs J-32, J-33).

XXXX is XXXX of XXXX. XXXX duties are to oversee the entire academic program; supervise and mentor faculty directly as well as providing professional development throughout the year to faculty; XXXX meets with parents and students around academic issues; XXXX oversees curriculum and XXXX works very closely with XXXX to oversee curriculum in the XXXX programs. On cross-examination, XXXX identified XXXX as XXXX and XXXX. XXXX stated that XXXX has a Masters Degree but that XXXX was not sure of the area. XXXX also stated that XXXX started at XXXX in 1993 and was trained as a XXXX. Prior to that time, XXXX taught at an XXXX day school. At the current time, XXXX provides direct instruction to students, but not to this Student. XXXX stated that XXXX also started at XXXX in 1993; that XXXX has a Masters Degree in Child Development; that prior to XXXX employment with XXXX XXXX taught at the XXXX School; and that XXXX also currently teaches students at XXXX, but not this Student. XXXX stated that XXXX, The Student’s XXXX, XXXX XXXX, and XXXX, has XXXX permanent certification in grades XXXX. XXXX was uncertain wheher XXXX possesses certification in special education. XXXX stated that XXXX has been the XXXX since 2002, and that from 1992 through 1995 XXXX taught at XXXX prior to pursuing graduate work. XXXX confirmed that XXXX does not provide any direct instruction to the Student (R. 114-115, 167-169, 172).

XXXX stated that XXXX has a doctoral degree in XXXX. XXXX stated that XXXX started as a school in XXXX, and its mission statement has been to XXXX. XXXX described XXXX as XXXX. It is characterized by XXXX due to XXXX. It is not the result of XXXX or XXXX. It is manifested by XXXX including XXXX, XXXX, and in particular, XXXX. There are currently XXXX students in XXXX’s in grades XXXX through XXXX. They are unable to XXXX (R. 116-118).

XXXX testified that for the past several years, there were XXXX. All faculty members must XXXX. XXXX stated that many of their faculty members have advanced degrees or certifications in XXXX from either XXXX or XXXX. Faculty members who begin at XXXX undergo XXXX of XXXX with XXXX and educators who are on staff. There is also continued professional development throughout the year specifically in XXXX, as well as in other areas of instruction, such as XXXX as it applies to their classroom. XXXX is used in XXXX’s XXXX school (R. 118-119).

XXXX described XXXX as XXXX of students who have XXXX or XXXX. XXXX stated that XXXX is not XXXX. Rather, it is XXXX so that, as opposed to XXXX, so that

XXXX (R. 119-120).

XXXX testified that XXXX in XXXX at XXXX is XXXX and each lesson is planned and geared towards a particular student. XXXX described it as XXXX. It is also XXXX, but also XXXX. XXXX abilities of the student. XXXX described XXXX XXXX of XXXX (R. 119-121).

XXXX described the admissions process for XXXX. Students XXXX in the program. XXXX meet with the parent to talk and the student has an opportunity to interact with other students. Other teachers have an opportunity to see the student with their current students. The family needs to complete an application and provide testing that is not more than 3 year old that will outline the Student’s challenges. XXXX’s admissions team and XXXX meet and discuss whether XXXX program and if XXXX or XXXX would be a good fit with XXXX. On cross-examination, XXXX stated that XXXX generally was not involved with the admissions process, and that XXXX knows, based on XXXX review of the file, that the Student interviewed in February 2010 and that a contract was received in April 2010. XXXX stated that the acceptance would have occurred somewhere between that time, and that the Parent is required to pay a non-refundable $ deposit upon signing the contract to hold the space (R. 121-122, 173-176).

XXXX stated that one of XXXX’s basic criteria for admission is that XXXX student and XXXX. They also look for marked delays in XXXX, XXXX, and XXXX. They also review XXXX to see the student’s areas of strength and weakness, and whether the student is clearly diagnosed as having XXXX, XXXX, or XXXX. XXXX defined XXXX as XXXX. XXXX also stated that oftentimes, XXXX and XXXX are seen together (R. 122- 123).

XXXX stated that the admissions team felt that the Student would be appropriately placed in XXXX based on several factors. First, XXXX had XXXX, a XXXX, and aspects of XXXX difficulties as well as XXXX. They felt that XXXX would address the XXXX and XXXXs. They also felt that the Student would benefit from XXXX because XXXX. In addition, there were no XXXX. On cross-examination XXXX stated that there was no XXXX. XXXX stated that XXXX with which parents may choose to contract XXXX, and they are available during the course of the school day. XXXX stated that the Student fit the range of scores or skills or challenges that other students within the program had (R. 124-126, 176-178).

XXXX described a typical day in the XXXX program. The Student is placed with XXXX, consisting of XXXX. Students start with 15 minutes of XXXX. First period is mathematics. XXXX is in a group with XXXX students using a XXXX grade math curriculum. XXXX proceeds to XXXX designed to remediate XXXX. XXXX is administered a brief battery of standardized testing in September and May to provide XXXX with additional material to use in planning the work to be done with the student. Students are also given informal diagnostic measures in areas such as XXXX and XXXX to provide XXXX criterion-based information. After 2nd period, students have a 20 minute break to get a snack and interact and socialize. On cross-examination, XXXX stated that there are 3 locations for break, and each area is staffed with at least 2 teachers. Third period is XXXX with a group of 4 other students. Students learn about XXXX, as well as XXXX. It is an opportunity to develop skills that are not directly related to XXXX and XXXX and XXXX. XXXX stated that XXXX class is XXXX (R. 126- 132, 180-181).

Following XXXX program, XXXX participates in a study hall with a total of XXXX students and one teacher. During the first 15 minutes, they work on activities involving XXXX. The next 35 to 40 minutes is spent on completing XXXX work that comes from XXXX. XXXX participates in lunch and recess. On cross-examination, XXXX stated that food is transported from the dining hall to the students. The XXXX afternoon consists of class with a mixed history and science curriculum, followed by chorus and literature. On cross-examination, XXXX testified that the combined history and science class consists of the study of aspects of each. XXXX gave an example where students XXXX. XXXX stated that XXXX reference to history was better described as social studies, as reflected on XXXX. XXXX also stated that there are a total of XXXX students that are comprised of XXXX, and that the group could be broken up to work on different levels of work. Chorus consists of XXXX students and all faculty members participate. After school, XXXX and they may select activities such as XXXX class, and XXXX. In the winter, students go XXXX and XXXX. They are not graded on their participation in physical programs. On cross-examination, XXXX stated that the academic classes are typically 45 minute periods. XXXX also stated that XXXX curriculum in the XXXX school is based on New York State curriculum because XXXX has a charter from New York State, and that it is approved and certified by the New York State Association of Independent Schools. XXXX does not participate in the New York State testing system and it not approved by New York State to provide special education to students with disabilities. On re-direct examination, XXXX stated that XXXX investigated thoroughly the proposition of obtaining New York State approval, but it believed that it might require them to alter aspects of the program that would impact its efficacy (R. 132-134, 170-173, 182-184, 186-187, 204-205, 206-208).

On cross-examination, XXXX described the physical layout of the school. It is a multi-building campus. On the lower part of campus, the academic buildings are the XXXX, XXXX, XXXX, XXXX, XXXX, XXXX, XXXX, XXXX, and XXXX. Students go from one building to another based on the courses to which they are assigned (R. 168-169).

XXXX does not arrange related services for students. On cross-examination, XXXX confirmed that XXXX does not employ XXXX or XXXX. If a student enters the program with an IEP that provides for either XXXX or XXXX, the services are provided by the school district in collaboration with the parents outside of the school day. XXXX stated that they look very carefully to see whether the XXXX program can address those areas of need and if it cannot, they may feel that the school is not a good fit for the student. XXXX testified that in this Student’s case, given XXXX program and schedule, the school felt that XXXX XXXX difficulties would be addressed through part of the XXXX , where they work on developing XXXX. The Student can produce a XXXX when XXXX, and although XXXX and XXXX improved, it was still something that XXXX was reluctant to do, and required a lot of XXXX and XXXX. They were able to move XXXX “fairly quickly” into learning XXXX. XXXX also stated that other aspects of XXXX XXXX was receiving would be supported through the physical activities in which XXXX participates such as XXXX and XXXX. XXXX stated that learning to XXXX requires a good amount of XXXX, XXXX, and XXXX. XXXX believed that from what they have seen from the Student so far, the XXXX program is meeting XXXX needs. On cross-examination, XXXX stated that the students do not learn to XXXX, and that many of their students come to XXXX having learned at least XXXX which may not be perfectly XXXX, but they can XXXX. XXXX also stated that there is XXXX staff at XXXX, although they do not provide the XXXX instruction. The XXXX provides XXXX instruction through a program XXXX designed that is based on XXXX techniques (R. 134-137, 187-188).

XXXX reviewed the XXXX School Program reports. XXXX stated that each subject area teacher is responsible for determining the student’s academic levels, whether at a XXXX, XXXX, or XXXX level, as set forth in the descriptions. Due to XXXX there would not have been a standardized measurement completed to determine whether the Student was making progress. As a result, XXXX one of XXXX, and XXXX decided to administer XXXX. The Student was administered a XXXX, because of significant gaps in XXXX XXXX ability and XXXX. They determined to give the Student a XXXX so as not to XXXX or XXXX him. At that time, XXXX scored at the XXXX in XXXX and at XXXX in XXXX. The second test administration involved a XXXX, which was designed to be more appropriate and challenging for a XXXX grader. The Student performed in XXXX on XXXX, XXXX in XXXX, and the XXXX in XXXX. XXXX stated that although the scores on The XXXX and XXXX cannot be directly compared, one can draw the basic conclusion that the Student is progressing because XXXX is answering more questions correctly (R. 139-142; Ex. J-31).

Apart from testing, in XXXX, the Student was unable to XXXX, and XXXX compensated by using XXXX and that although it was working for him at this stage, it is a strategy that “falls apart” once XXXX. The XXXX began to do a lot of work on XXXX in particular XXXX, and in XXXX through different types of XXXX. They moved into XXXX and XXXX. XXXX helped him to compensate well. XXXX stated that for a child like this Student, who struggles with XXXX, the XXXX was essential. On cross-examination, XXXX stated that XXXX could not recall specific testing of the Student’s XXXX, and that that the Student’s stated difficulties may also be caused by XXXX (R. 143-148, 199-200).

XXXX reviewed the Student’s XXXX scores from October 2010 and noted performance in the XXXX XXXX stated that even though XXXX had a XXXX, XXXX was not able to XXXX. XXXX stated that the Student progressed in XXXX as of February 2011. XXXX is XXXX and XXXX, XXXX understands XXXX and XXXX can XXXX accurately, and XXXX was then currently working on XXXX. In the area of XXXX, the Student was also concentrating on XXXX and was very much in the XXXX (R. 148-152; Ex. J-31).

XXXX also reviewed the Student’s scores on the XXXX that was administered in October 2010 and noted that although the Student appeared to perform well on the XXXX, involving XXXX, at the XXXX, XXXX did not perform nearly as well on XXXX, involving XXXX, at the XXXX. XXXX attributed the differences to the Student’s likely use of XXXX, in that XXXX was able to XXXX. On cross-examination, XXXX confirmed that XXXX had background and experience in assessment, but that XXXX is not XXXX, and that XXXX did not administer any testing to the Student. XXXX also confirmed that the Student did not take the XXXX because of XXXX (R. 152-155, 194-196; Ex. J-31).

XXXX testified that XXXX has observed the Student in XXXX class settings and that in a recent observation XXXX was able to see that the Student was still demonstrating XXXX and continued to need XXXX from the teacher. XXXX stated that the Student looks to the other XXXX students in the room to see XXXX than XXXX was in October 2010, but that XXXX continued to be an issue. On cross-examination, XXXX confirmed that XXXX observed the Student for a total of two times, and that both observations occurred within 2 weeks of the date of XXXX testimony. XXXX also stated that over the course of The 2010/11 school year, XXXX had spoken directly with the Student for a total of 60 to 90 minutes (R. 158-160, 196, 202).

XXXX summarized the principal features at XXXX that meet the Student’s areas of deficiency as XXXX (R. 160-165).

On cross-examination, XXXX stated that XXXX opinion that the program at XXXX was meeting the Student’s needs was based on the objective data of the XXXX, as well as on anecdotal data and daily occurrences and experiences in class. XXXX confirmed that the Student does not XXXX, depending on their level of performance. The other core academics are not formally assessed. XXXX stated that XXXX looked at the Student’s work materials and discussed XXXX progress with XXXX, XXXX. XXXX described XXXX credentials as a Masters Degree in educational psychology and XXXX permanent teaching certification in grades K through 12. XXXX also stated that XXXX was certified by XXXX and is a XXXX. XXXX confirmed that one does not have to possess XXXX in order to use XXXX (R. 188-191, 196-199).

On cross-examination, XXXX confirmed that the group of XXXX meet 2 times per week for 1-1/2 hours per meeting to discuss student progress, concerns, and issues, and that within a two week period, each of the XXXX students is discussed at least once (R. 202-203).

XXXX, testified that XXXX has been in private practice for almost 30 years. XXXX received XXXX Doctorate in both clinical psychology and school psychology. XXXX is licensed as a psychologist in both New York and Connecticut. XXXX testified that XXXX has specialization in both XXXX testing and psychodymanic testing and treatment of children. On cross-examination, XXXX testified that XXXX is not Board Certified in Neuropsychology. XXXX treats toddlers, adolescents, college students, and adults. XXXX provides individual and family counseling, including marital treatment. XXXX conducts educational testing when there are questions about a child’s learning style in making recommendations related to the best way to teach him or XXXX. XXXX works mostly for parents who want to understand more about their children but XXXX sometimes gets referrals from schools (R. 294-297, 322, 371).

XXXX testified that XXXX first met the Student when XXXX was XXXX years old and attending XXXX. The Student was referred by XXXX, XXXX. XXXX was asked to conduct testing as a second opinion to testing that was previously completed by the XXXX through XXXX. XXXX determined to review the testing that had been completed and to make a determination as to whether further testing was warranted. XXXX reviewed the testing that was already completed and determined to add a XXXX as well as some tests aimed at XXXX. XXXX also saw the Student when XXXX was in XXXX, at the age of XXXX, due to Parental concerns that XXXX was XXXX and XXXX, but not

XXXX (R. 297-298).

XXXX testified that XXXX saw the Student a third time at the age of XXXX, when XXXX was in the XXXX grade, and XXXX conducted testing. XXXX stated that the Parents requested updated testing of XXXX and XXXX that they could use in planning for XXXX academically. XXXX testified that the Student was attending XXXX grade at XXXX and the Parents were concerned as to whether the school was the best fit for XXXX. XXXX testified that the testing was conducted over a period of XXXX days because the Student did not have “XXXX” and XXXX wanted to be sure that XXXX received “a good read” of XXXX and not a XXXX or XXXX. XXXX stated that XXXX gave a lot of tests because XXXX is a “XXXX” who presents with XXXX. XXXX was tested for one hour per session and the Student “XXXX.” XXXX generally described the tests that XXXX administered to the Student (R. 300-306; Ex. J-18).

XXXX testified that the results of the Student’s testing on XXXX and XXXX indicated the presences of XXXX. XXXX also drew that conclusion based on Parent report and XXXX observations of XXXX while XXXX was working with XXXX and in the classroom. XXXX stated that the Student has difficulty XXXX and when XXXX becomes XXXX, XXXX becomes XXXX and XXXX. Although it XXXX, it is XXXX. XXXX becomes XXXX and XXXX gets XXXX. XXXX also has XXXX and XXXX asked XXXX (R. 307-310; Ex. J-18).

XXXX also diagnosed the Student with XXXX, based on XXXX classroom observation and XXXX observations in working with XXXX. XXXX stated that the Student is able to XXXX, but that XXXX, in which XXXX, XXXX had great difficulty. XXXX also stated that the Student has difficulty in XXXX, which XXXX described as “XXXX; XXXX; and XXXX.” XXXX gave examples of XXXX, which included XXXX; XXXX; XXXX; XXXX; XXXX; XXXX, XXXX; XXXX; XXXX, and XXXX. XXXX described XXXX as XXXX, XXXX, and XXXX. On re-direct examination, XXXX stated that XXXX can XXXX and XXXX due to XXXX, in that XXXX, XXXX, XXXX, and XXXX. In addition, XXXX. XXXX noted that XXXX may not necessarily be seen in XXXX (R. 310- 313, 396-397; Ex. J-18).

XXXX testified that XXXX are one of the key areas where the Student has difficulty. XXXX was diagnosed at XXXX with XXXX, which involves XXXX. XXXX described difficulties with XXXX as “XXXX,” because XXXX. Testing indicated that the Student has difficulties with XXXX, XXXX, XXXX and XXXX (R. 313-314; Ex. J-18).

XXXX also diagnosed the Student with XXXX, based on XXXX. XXXX stated that the Student’s XXXX scores were XXXX given XXXX. XXXX based XXXX diagnosis on the results of the XXXX, The XXXX and XXXX in the XXXX, the XXXX, and the XXXX and XXXX of the XXXX (R. 314-318; Ex. J-18).

In addition, XXXX diagnosed the Student with XXXX, specifically as XXXX, which XXXX defined as XXXX. XXXX diagnosis was based on XXXX; the XXXX, and XXXX that have to do with XXXX, XXXX, and XXXX. XXXX characterized XXXX as XXXX. XXXX stated that although XXXX achieved a XXXX in the XXXX it was seen as a XXXX (R. 318-321; Ex. J-18).

XXXX also diagnosed the Student with XXXX, which XXXX described as having to do with XXXX. On cross-examination, XXXX testified that at the time XXXX tested the Student in September 2008, the Parent advised XXXX that XXXX took the Student to XXXX for a consultation, when XXXX was either XXXX or XXXX, and that they stated that XXXX was a signal that the XXXX felt challenging to him (R. 321-322, 340-342; Ex. J-18).

XXXX testified that XXXX reviewed XXXX recommendations with the Parents and that XXXX conveyed that XXXX needed XXXX. XXXX stated that because of XXXX difficulty, including difficulties with XXXX; XXXX; the XXXX; and XXXX, XXXX would need XXXX, which XXXX described as XXXX, with XXXX in which XXXX was XXXX with a lot of XXXX, and low on XXXX and having to find XXXX. XXXX also felt that XXXX needed XXXX as part of the school day, to avoid XXXX. XXXX also believed that it would be very important to have a program that would address both XXXX and XXXX. In addition, XXXX believed that XXXX would need XXXX, XXXX, and XXXX (R. 323-325; Ex. J-18).

XXXX stated that XXXX and the Parents spoke about a range of schools to be researched, since XXXX is not an education consultant. Discussion included a range of programs, including XXXX, XXXX, XXXX, XXXX, and what XXXX was offering or could offer. XXXX stated that XXXX participated in a CSE meeting in XXXX to discuss XXXX findings and recommendations (R. 325-326).

XXXX described XXXX contact with the XXXX over the past XXXX years, which included classroom observations of six students, meetings with staff members, and discussion of test results. XXXX characterized the primary features of the school as XXXX. There is a lot of XXXX, and the teacher can XXXX, creating the opportunity for XXXX, XXXX, and XXXX. XXXX described the teaching as XXXX so that XXXX. Students are given XXXX that help them XXXX. The XXXX is XXXX. There is also a lot of XXXX, through XXXX. There is XXXX, including XXXX. The classroom was also

XXXX (R. 327-330).

XXXX believed that XXXX was “probably a good fit for the Student” based on its XXXX as well as XXXX; that it is XXXX and XXXX; that XXXX; that XXXX; XXXX believed that XXXX; XXXX would XXXX, whom XXXX described as XXXX; that XXXX difficulties, which manifested in XXXX, XXXX, and XXXX, would be addressed through XXXX, because it would address XXXX. On cross-examination, XXXX clarified that XXXX did not know whether XXXX would fully address those issues, but that it would be helpful. XXXX also stated that XXXX did not evaluate the Student in those areas, and relied on information contained in the testing of others. XXXX confirmed that XXXX is XXXX. XXXX stated that XXXX formed XXXX opinion over the appropriateness of the XXXX program in January 2010, and that XXXX expressed to the Parents that XXXX felt it was a good fit, but at time They were exploring many options (R. 330-333, 339- 340).

XXXX stated XXXX opinion that the Student needs XXXX, in light of the fact that XXXX. XXXX testified that XXXX manifests itself in XXXX, it shows up XXXX in that XXXX, XXXX, XXXX and XXXX, and in the XXXX. XXXX stated XXXX belief that the XXXX and XXXX at XXXX would help with the Student’s XXXX. XXXX has not observed the Student in XXXX placement at XXXX and, after the CSE meeting at XXXX, XXXX had no further contact with the Parents until recently in terms of the proceeding (R. 333-335).

On cross-examination, XXXX described XXXX observation of the Student’s XXXX while XXXX was placed at XXXX. XXXX stated that the observation lasted between 1 and 1-1/2 hours and XXXX described XXXX between the Student and another student in the class, as set forth in XXXX report. XXXX stated that at that time, XXXX was still concerned with the Student’s difficulties with XXXX, XXXX XXXX XXXX, XXXX, XXXX, and XXXX (R. 335-339).

Also on cross-examination, XXXX reviewed some of XXXX testing results from September 2008. XXXX noted at that time that in the XXXX, the Student looked to be doing well with XXXX, but that little is expected of a child at the beginning stage of XXXX and that XXXX progress in the mastery of XXXX should be monitored (R. 342- 343; Ex. J-18).

XXXX was also questioned on cross-examination with respect to testing XXXX conducted in 2009. XXXX confirmed that over one year later, based on the results of XXXX, the Student performed XXXX. However, XXXX stated that the subtest of XXXX on the XXXX indicated XXXX. XXXX also confirmed that the Student’s score on the XXXX was XXXX, equating to XXXX. XXXX also stated that a student who obtains standard scores of between 90 and 109 on particular subtests of the XXXX and the XXXX is considered average (R. 343-346; Ex. J-18).

XXXX confirmed XXXX belief that the Student was not XXXX. XXXX also confirmed that XXXX includes XXXX, XXXX, and XXXX. XXXX stated that on the XXXX subtest of the XXXX, which involves XXXX, the Student scored XXXX. In addition, on the XXXX, which measures XXXX, which XXXX characterized as XXXX, the Student scored XXXX (R. 346-349; Ex. J-18).

XXXX expressed agreement that XXXX is XXXX, and that when XXXX was tested in that area in 2009, XXXX scored XXXX. XXXX confirmed XXXX belief, as stated in XXXX report that the Student is “XXXX.” XXXX described XXXX as XXXX, and that XXXX. XXXX confirmed that on XXXX, the Student XXXX, which looks at XXXX. Moreover, in a subtest administered on XXXX called, a test calling upon XXXX, the Student scored XXXX. In addition, the Student was administered XXXX and XXXX subtests of the XXXX. XXXX stated that the test of XXXX assesses XXXX, similar to XXXX. It involves XXXX and XXXX. The Student scored XXXX at the time of testing, when XXXX (R. 349- 353; Ex. J-18).

XXXX confirmed that the Student was also administered the XXXX, which involves XXXX. XXXX stated that it measures XXXX, and involves XXXX. It involves certain aspects of XXXX. The Student scored XXXX in each of the subtests administered (R. 354; Ex. J-18).

XXXX confirmed XXXX opinion contained in XXXX report that the Student XXXX. XXXX stated that XXXX is XXXX, and XXXX works very hard to XXXX. XXXX stated that XXXX, so that XXXX can say, “XXXX” when in fact, XXXX. XXXX also confirmed XXXX opinion that the Student has difficulty with XXXX. XXXX administered the XXXX subtest of the XXXX to measure the Student’s XXXX and XXXX scored XXXX (R. 354- 356; Ex. J-18).

XXXX stated that XXXX issues can impact XXXX and XXXX, and XXXX involves both XXXX and XXXX issues. XXXX also stated that based on both testing and the XXXX, the Student has difficulty XXXX and XXXX, referred to as “XXXX.” XXXX also stated that the Student has difficulty with XXXX, and XXXX, XXXX. However, after reviewing the Student’s performance on XXXX, XXXX confirmed that XXXX completed each task. XXXX stated that XXXX plays a part in XXXX, in that XXXX XXXX, such as, “XXXX?” (R. 357-359; Ex. J-18).

XXXX confirmed that amongst XXXX recommendations, continuation of XXXX would be important to XXXX program, to address both the XXXX and XXXX. XXXX also recommended the continuation of XXXX as part of XXXX program (R. 359-360; Ex. J-18).

XXXX confirmed that the Student has difficulty XXXX, referring to it as “XXXX.” XXXX stated that on the XXXX, the Student XXXX, and that XXXX scored XXXX. XXXX confirmed that XXXX and XXXX will XXXX. XXXX also does not always XXXX. XXXX stated that the XXXX may contribute to some of the XXXX that the Student experiences, and that working on XXXX would be an important thing for the Student as part of any program in which XXXX participates (R. 362-364; Ex. J-18).

XXXX stated that although the Student XXXX, XXXX did not believe that it XXXX, because XXXX. However, it could have been difficult for the Student due to XXXX. XXXX stated that XXXX, and that it was possible that XXXX (R. 364-368).

XXXX also indicated in XXXX report that the Student XXXX Parent’s XXXX. XXXX stated that the Student XXXX, but XXXX knows XXXX, and when XXXX is XXXX or XXXX. The Student is XXXX. XXXX does not necessarily know XXXX, but it XXXX. XXXX described him as “XXXX” at XXXX, but confirmed that XXXX. XXXX at school may not seem obvious, if XXXX. One’s interpretation of XXXX is actually XXXX, XXXX (R. 368-370; Ex. J-18).

XXXX confirmed that XXXX has not observed the Student at XXXX; that XXXX never XXXX at XXXX; and that the nature of XXXX direct involvement with the Student has been through testing XXXX. XXXX also indicated that XXXX has not tested XXXX since the fall 2009. XXXX indicated that all testing was conducted at the request of the Parent, and was not an independent XXXX evaluation. XXXX indicated that XXXX performed some sort of test or assessment annually in 2007, 2008, and 2009. XXXX stated that XXXX performed significantly less testing in 2007 and 2008 because XXXX had been evaluated by XXXX, and XXXX testing was supplemental in nature. XXXX performed a comprehensive, full evaluation in 2009. On re-direct examination, XXXX stated that over the three year period, the Student demonstrated some areas of XXXX and in XXXX level of XXXX and XXXX. However, XXXX XXXX, XXXX, and XXXX issues were consistent over time (R. 370-376, 399-400).

XXXX stated that XXXX administered testing in one hour increments, including tests that had an administration period of 1-1/2 hours, and that multiple administrations of the test (specifically the XXXX) was not inconsistent with testing protocol. On re-direct examination, XXXX testified that there is no requirement in any test administration, other than XXXX that administration must be in one session. XXXX stated that test protocols are silent on the issue of single or multiple sittings for test administration. XXXX stated that the XXXX (the “XXXX”) was completed by the Parent and by the XXXX, but not by XXXX. XXXX stated that XXXX had a conversation with XXXX regarding XXXX concern that the Student was XXXX, and that the XXXX indicated concern about XXXX. The conversation was not included in XXXX report (R. 376-380, 398-399; Ex. J-18).

XXXX confirmed that XXXX has observed the Student’s XXXX during various intervals since XXXX. XXXX observed him one time at XXXX, and one time at the XXXX, for a total of 2 to 2-1/2 hours, and XXXX observed him in XXXX testing situations. XXXX was also questioned about statements XXXX made with respect to XXXX. XXXX stated that XXXX, given XXXX, as demonstrated by XXXX. XXXX stated that the Student’s XXXX, which XXXX, is what should be used in XXXX, because XXXX (R. 380-384; Ex. J-18).

XXXX stated that XXXX relied upon the Student’s performance on the XXXX in part for XXXX diagnosis of the Student as XXXX. However, a review of the XXXX indicates XXXX. XXXX also referenced the XXXX for part of the diagnosis, but a review of the test result shows that XXXX. XXXX also referenced the XXXX as an indicator of XXXX. XXXX achieved standard scores in the XXXX. However, XXXX stressed that XXXX, and given XXXX as demonstrated by XXXX, in the XXXX, there is XXXX (R. 385-388; Ex. J-18).

On re-direct examination, XXXX reiterated that XXXX, as measured by the XXXX, should not XXXX. XXXX contrasted the Student’s XXXX on XXXX. XXXX stated that XXXX, and that XXXX, meaning XXXX. XXXX stated that the same is true of XXXX. XXXX, as measured by the XXXX, measured the Student to be performing at XXXX, with a standard score of XXXX. XXXX stated that XXXX. XXXX stated that XXXX. For the Student, XXXX. It is XXXX (R. 394-396).

XXXX testified that XXXX last observation at XXXX was 3 years prior to XXXX testimony and at “pretty regular intervals” over the past 15 years. XXXX observed 4 different settings over the 15 year period. On re-direct examination, XXXX stated that the program at XXXX was very consistent over the years, and there were no significant changes noted in their pedagogy, their approach, or their fundamentals during that time. XXXX confirmed XXXX diagnosis of the Student as XXXX, and that XXXX response to XXXX depended a lot on XXXX. In tasks involving XXXX, XXXX was XXXX but XXXX. In a XXXX, XXXX could be XXXX but XXXX. In the XXXX, XXXX. XXXX was not XXXX. XXXX was XXXX, but XXXX did not. There was no XXXX by staff when XXXX (R. 388-391, 397).

XXXX stated that the Student XXXX, but XXXX did not believe that XXXX. XXXX also stated that XXXX observed the Student XXXX, and XXXX was consistent with what XXXX produced on the test (R. 391-393).

On re-direct examination, XXXX stated that with regard to academic placement, remediation of XXXX should take priority over XXXX, in that XXXX. XXXX described him as “XXXX,” and that XXXX. XXXX stated that in terms of placement, given the XXXX, emphasis should be on the Student’s XXXX issues, in terms of XXXX, and

XXXX (R. 400-402).

XXXX is an educational advocate. XXXX has been working in that capacity for approximately 3-1/2 to 4 years. XXXX met The Parent in the summer 2009, prior to The Student’s entry into XXXX. XXXX testified regarding XXXX participation in the CSE meeting in XXXX. XXXX stated that “it was determined” that XXXX did not have an appropriate program for the Student, and the CSE stated that The Parent should do whatever XXXX had to do to find a place that would be appropriate for the Student, and that XXXX would do whatever it had to do. The Parent stated on cross-examination that XXXX did not initiate an Impartial Hearing to challenge the recommendation of the XXXX CSE because XXXX. XXXX stated that XXXX (R. 413-417, 490-491).

XXXX stated that XXXX was aware that the Parent made a commitment to XXXX following the XXXX CSE meeting. In August 2010, the Parent contacted XXXX to tell XXXX and asked XXXX to accompany XXXX to the CSE meeting in the District. XXXX had no contact with the Parent between April 9, 2010 and approximately August 18, 2010, when the Parent contacted XXXX. XXXX stated that XXXX did the majority of the speaking at the CSE meeting, and XXXX informed XXXX that following the Parent’s CSE meeting in XXXX, XXXX decided to place the Student at XXXX, but now that XXXX moved to the District, XXXX wanted to see what type of program the District had to offer and whether or not it would be appropriate. XXXX stated that a XXXX named XXXX and another XXXX responded. They stated that there was going to be some changes in the program in the coming year, and they described XXXX. The Parent stated that XXXX would like to be able to see the program. XXXX stated that “they” indicated that school was not starting until September 8th. The Parent asked if XXXX could see the program on that day, and “they” said XXXX could not come in on the first day of the program, and “they” would actually prefer XXXX didn’t come in the first week because there was a lot of activity and it would be unsettled, and that the Parent should contact The principal and make arrangements to see the program in perhaps the 2nd or 3rd week of school. On cross-examination, XXXX stated that the Parent wanted to try to see the program as quickly as possible so that XXXX could determine if it was appropriate so that the Student could start right away rather than joining a class that was already in session. XXXX also stated that XXXX did not participate in the visit to the classroom, but XXXX prepared XXXX in drafting an outline of the observation to be sent to XXXX attorney. XXXX helped the Parent organize XXXX notes to send to XXXX attorney for XXXX to use as XXXX saw fit. XXXX stated that they asked for the class profile, and they were told that they could get that from the principal. XXXX confirmed that the parent received class profiles on September 23rd when XXXX visited the program, and confirmed that the Student was already in attendance at XXXX at that time (R. 418-422, 435-438, 441-443).

XXXX stated that there was some discussion at the CSE meeting regarding XXXX, but that it was a vague discussion, in light of some changes in the curriculum based on a change in teacher. On cross-examination, XXXX stated that the CSE had explained what the program looked like the year before; they stated that XXXX; they spoke about XXXX; they explained the curriculum of the day; and they described a typical day in the class based on previous years. XXXX stated that XXXX and the Parent asked further questions after the program was described, and the CSE was able to answer their questions. XXXX stated that the Parent discussed the Student and XXXX characteristics. XXXX asked about a XXXX, about “XXXX.” XXXX stated there was a dialogue about the types of services that the Student needs and about XXXX not necessarily being in tThe Student’s best interest. On cross-examination, XXXX stated that XXXX was involved in the discussion about the Student’s XXXX issues; about XXXX; about XXXX; and XXXX. XXXX stated that early on in the meeting XXXX told the CSE that the Student had committed to XXXX, that a teacher stated that XXXX felt the District’s program could offer the Student everything XXXX needed, and that the teacher felt the Parent would like the program and would be able to bring the Student into the District’s program. XXXX stated that after the discussion, XXXX and the Parent neither “necessarily agreed nor disagreed” with the program, and both stated that until the Parent could see the program, get the class profiles, meet the teacher, and see the functionality of the classroom, XXXX would not be able to make a decision as to whether or not it was truly appropriate for The Student. The Parent confirmed that XXXX did not provide notice to The CSE at its meeting that XXXX was rejecting the District’s program and placing him at XXXX. XXXX also confirmed that XXXX letter to XXXX, following XXXX observation of the District’s proposed placement, did not inform him that XXXX would seek tuition reimbursement for the Student’s private placement at XXXX, and that notice was not given until October 18, 2010 (R. 422-424, 432-435, 439, 450-453; Exs. J-1, J-8).

XXXX testified that on September 10th, the Parent sent an e-mail to the principal requesting the class profiles and requesting to observe the class. The principal replied that XXXX should contact XXXX about the profile and that XXXX could view the class on September 20th. On that morning, the Parent received a phone call cancelling the visit because the substitute teacher was out and they were not sure when XXXX would be back because of the nature of the emergencies. On cross-examination, XXXX confirmed that XXXX was in communication with the Parent during the entire time XXXX was in contact with District personnel. XXXX stated that both XXXX and the Parent’s attorney instructed XXXX not to wait to observe any longer and XXXX went to see the class on September 23rd. XXXX testified that XXXX engaged in communications with the Parent and XXXX attorney, and that in XXXX mind, XXXX has not stopped representing the Parent and still considers XXXX a client (R. 424-427, 431-432).

XXXX stated that as far as XXXX knew, the Parent visited the class on September 23rd, and that at that time the Student was enrolled in XXXX. The parties stipulated that the XXXX registration at XXXX was on September 8, 2010 (R. 427-428).

XXXX is employed by the District as a XXXX, and XXXX has been employed in that capacity for 11 years. Prior to XXXX employment at the District, XXXX served as a XXXX at XXXX for 3 years. XXXX is certified in New York State as a XXXX. XXXX described XXXX job duties as XXXX (R. 557-560).

XXXX stated that XXXX became familiar with the Student by virtue of XXXX attendance at a resolution session with the Parent and others. XXXX also reviewed the Student’s records when they were brought to the attention of the CSE. On cross-examination, XXXX stated that XXXX never observed the Student in a classroom; XXXX never XXXX or looked at XXXX XXXX; XXXX has never been in XXXX presence; that XXXX has never spoken with any of XXXX teachers; and that XXXX made no effort to talk with anyone at XXXX about the Student. XXXX recalled reviewing a report by XXXX as well as other reports from XXXX. XXXX stated XXXX familiarity with a number of reports that are in evidence, including XXXX’s XXXX from the fall 2009; an XXXX by XXXX dated July 27, 2009; an XXXX by the XXXX dated December 15, 2008; a XXXX dated November 24, 2008; an XXXX dated April 2, 2010 by XXXX; an XXXX dated April 6, 2010; a XXXX covering December 2009 – February 2010 by XXXX; an XXXX dated December 8, 2009 by XXXX; a XXXX covering September 2009 through November 2009 by XXXX; and a XXXX dated April 8, 2010. On cross-examination, XXXX stated that XXXX recalled reviewing XXXX’s XXXX, XXXX, and the IEP from the prior school year when the packet was received by the District, but XXXX had no recollection as to whether XXXX reviewed the packet prior to or subsequent to the CSE meeting held on August 30, 2010. XXXX also testified that XXXX reviewed XXXX from the evidence binder on several occasions prior to XXXX testimony (R. 560-565, 615- 619, 625-629; Exs. J-12, J-13, J-14, J-15, J-16, J-17, J-18, J-19, J-20, J-23).

Also on cross-examination, XXXX testified that XXXX did not play any role in developing the District’s draft IEP for the 2010/11 school year; that XXXX did not know whether the draft IEP was developed before or at the August 30 meeting; and XXXX did not speak with any member of The CSE prior to August 30, with the exception of XXXX, but the conversation was not substantive in nature (R. 620-622; Ex. J-5).

XXXX defined XXXX as a XXXX. XXXX stated that XXXX in a student, and that such information is derived from a variety of sources, including XXXX (R. 565-566).

XXXX testified that a student must possess XXXX in order to be able to XXXX. XXXX defined XXXX as XXXX. Weaknesses or a lack of some of those skills does not automatically indicate that a student has XXXX. XXXX stated XXXX opinion that XXXX (R. 570-571).

XXXX reviewed XXXX’s report and stated XXXX familiarity with the tests administered by XXXX. XXXX stated that XXXX has XXXX, XXXX, the XXXX, the XXXX, the XXXX, the XXXX, and the XXXX. XXXX stated that XXXX is familiar with the remaining XXXX. XXXX stated that the XXXX. The XXXX. The XXXX. The XXXX. The XXXX. The XXXX and the XXXX are XXXX. The XXXX, the XXXX and XXXX are XXXX (R. 572-575; Ex. J-18).

XXXX reviewed the Student’s performance on the XXXX as reported by XXXX. XXXX stated that a review of the XXXX indicates XXXX. For XXXX, the Student scored XXXX. XXXX were also XXXX. XXXX areas include XXXX, measured XXXX, and XXXX, measured XXXX (R. 575-576; Ex. J-18).

XXXX also reviewed the XXXX administered by XXXX. Average range is measured by scaled scores falling between 7 and 13. XXXX stated that the Student’s performance on the XXXX range from XXXX. The lowest score is for the XXXX, which measures XXXX. The highest score is in the XXXX, which measures XXXX. XXXX ability in that area is XXXX. The Student’s performance on the XXXX was XXXX, and involves XXXX. The Student’s XXXX and XXXX are in XXXX. In the XXXX, the Student’s score is XXXX. The XXXX measure XXXX. The Student’s score on the XXXX fell within XXXX, and XXXX score on the XXXX was measured in XXXX. XXXX testified that the specific skills that are impacted by XXXX are XXXX. One needs to XXXX, XXXX, XXXX, and XXXX (R. 576-580; Ex. J-18).

XXXX testified that XXXX, including XXXX, XXXX, XXXX, XXXX, and XXXX. XXXX stated that the Student’s XXXX. Looking at the XXXX, XXXX, XXXX, and XXXX (R. 580-583).

XXXX testified that XXXX agreed with XXXX’s scores, but that XXXX interpretation of them is different. XXXX stated that XXXX. However, when compared with XXXX a few years earlier, XXXX achieved XXXX. XXXX stated that the Student is XXXX, but XXXX, such as XXXX, XXXX, XXXX, XXXX, and XXXX. On cross-examination, XXXX was unable to reference which document XXXX reviewed relating to XXXX. XXXX also believed that XXXX could also have an adverse effect on XXXX, and that XXXX did not believe that XXXX (R. 583-585, 629-631).

XXXX stated XXXX familiarity with XXXX, which measures XXXX, XXXX, XXXX, and XXXX. XXXX stated that XXXX measures XXXX. XXXX stated that the Student’s performance in that area was XXXX. The XXXX involves XXXX. XXXX stated that the XXXX, and is not a XXXX. XXXX performance in that area was XXXX (R. 585-586; Ex. J-18).

XXXX testified that XXXX did not agree with XXXX’s conclusion that XXXX. XXXX stated that the Student XXXX and if XXXX were not, XXXX did not believe that XXXX. In addition, XXXX did not believe that XXXX, XXXX, XXXX, and XXXX would all XXXX. XXXX referenced the Student’s performance on XXXX, in which XXXX standard score was XXXX. XXXX also referenced XXXX, which specifically measures XXXX, XXXX, XXXX, and XXXX. All of those scores, including XXXX, fell XXXX (R. 586-588; Ex. J-18).

XXXX also referenced information from the Student’s XXXX. XXXX stated that XXXX, although XXXX. XXXX is XXXX. The Student has XXXX, earning a standard score of XXXX. XXXX stated that XXXX involves XXXX. XXXX standard score of XXXX, which XXXX stated was XXXX. On cross-examination, XXXX stated XXXX (R. 588-591, 643-644; Ex. J-31).

XXXX stated XXXX familiarity with XXXX, which measures XXXX. XXXX noted that XXXX. XXXX stated that XXXX. XXXX never administered XXXX. XXXX stated XXXX disagreement with XXXX. XXXX reviewed the Student’s XXXX and noted that XXXX (R. 591-593; Exs. J-18, J-31).

On cross-examination, XXXX stated that XXXX did not know whether the Student worked on XXXX and XXXX at XXXX and that XXXX did not speak with anyone associated with XXXX about XXXX. XXXX also acknowledged that the Student’s XXXX stated that XXXX IEP goals relating to XXXX, XXXX, XXXX, and XXXX still remained relevant for XXXX learning needs. XXXX also stated that XXXX did not know what the Student’s goals were relating to XXXX and XXXX (R. 629-630, 632; Ex. J-13).

XXXX defined XXXX as XXXX. XXXX stated that XXXX relates to XXXX and XXXX. In XXXX, it would affect XXXX. In XXXX, XXXX. In other instances, XXXX. XXXX referenced XXXX’s administration of XXXX, and noted that XXXX. The XXXX. Each of those scores fell XXXX. XXXX also referenced XXXX’s administration of the XXXX. XXXX testified that on XXXX, the Student scored XXXX. On XXXX, the Student’s performance on the XXXX and XXXX fell XXXX. XXXX also referenced the XXXX, and noted XXXX, within XXXX. XXXX also referred to the results of two administrations of the XXXX. XXXX noted that on the XXXX, the Student scored XXXX and in XXXX (R. 595-599; Exs. J-17, J-18, J-23).

XXXX stated that XXXX reviewed the Student’s XXXX from XXXX and saw that XXXX had needs relative to XXXX and XXXX. XXXX also reviewed XXXX’s report and noted XXXX comment that XXXX and the Student XXXX. XXXX referenced the Student’s score on XXXX, which measures XXXX, and noted XXXX performance at XXXX. XXXX contrasted that score with the Student’s performance on the XXXX, XXXX earned a standard score of XXXX, on XXXX. I note that XXXX’s assessment of the Student in the area of XXXX, as part of XXXX, shows the Student performing in XXXX (R. 599-604; Ex. J-18).

XXXX testified that the Student has difficulty with XXXX, with XXXX. XXXX stated that XXXX would address the issue through XXXX in XXXX. XXXX stated that students can learn XXXX. XXXX also stated that in The District, The XXXX is co-led by XXXX and XXXX (R. 605).

XXXX was also asked about the Student’s XXXX diagnosis and whether any testing conducted on the Student demonstrated XXXX. XXXX stated that XXXX. XXXX reviewed the Student’s performance on XXXX and noted XXXX was in XXXX (R. 605- 607; Ex. J-18).

XXXX stated XXXX familiarity with the XXXX. XXXX stated that XXXX has participated in meetings over the phone, and XXXX has been there “a handful of times” to do evaluations and sometimes to observe. XXXX stated that to XXXX knowledge, XXXX does not have XXXX, XXXX, or XXXX on staff, and that the District offers XXXX (R. 607-608).

XXXX stated XXXX opinion over the Student’s classification as XXXX. XXXX was curious as to why XXXX was changed to XXXX, and stated XXXX belief that XXXX. XXXX believes that XXXX, XXXX, and issues of XXXX and XXXX, as well as XXXX issues, are XXXX primary issues, and that XXXX would not be the first classification that comes to mind. XXXX does not see any disability in XXXX. XXXX also stated that it was too soon to conclude that the Student has XXXX. XXXX is uncertain as to whether the Student’s difficulties emanate from XXXX or XXXX. That is, what is making him XXXX. XXXX stated that it could be XXXX due to difficulty with XXXX; it could be XXXX difficulty with sustaining XXXX and concentration; or it could be XXXX. On cross-examination, XXXX stated that XXXX agreed that XXXX are an area of weakness for The Student. When asked whether the XXXX felt the Student needs XXXX, XXXX stated that XXXX would defer to XXXX, but that in XXXX opinion, XXXX does (R. 609-614, 636).

On cross-examination, XXXX stated that XXXX formed XXXX opinion that the Student’s primary classification was not XXXX after having initially read the packet, but that XXXX did not convey XXXX thought to any member of the CSE, and XXXX did not write anything that conveyed that conclusion to anyone. XXXX stated that XXXX did not disagree that XXXX, XXXX, and with XXXX diagnosis of XXXX. XXXX stated XXXX disagreement over the Student’s diagnoses of XXXX and XXXX (R. 622-624, 639-640).

XXXX is the District’s XXXX. XXXX began XXXX employment in August 2009 as XXXX and XXXX, and XXXX has served as XXXX since August 2009. In February 2011, XXXX became XXXX. XXXX job duties include XXXX. On cross-examination, XXXX stated that XXXX was not tenured in the District or in any of XXXX prior employment. XXXX also stated that XXXX holds New York State certification in XXXX and in XXXX. XXXX is not certified in XXXX (R. 663-664, 667-668, 707-708).

XXXX stated that XXXX became familiar with the Student through XXXX first conversation with the Parent on July 15, 2010. On cross-examination, XXXX confirmed that XXXX never had any direct contact with the Student. XXXX stated that the Parent introduced XXXX and told XXXX that XXXX and XXXX XXXX were going to be moving to XXXX to attend XXXX. XXXX also stated that they were moving from XXXX and that the Student had an IEP. XXXX stated that XXXX needed consent forms to obtain the Student’s records from XXXX, and the Parent executed the forms and returned them to XXXX within a week. On cross-examination, XXXX stated that XXXX initiated a discussion with the Parent during the telephone conversation that after hearing about the Student, XXXX believed that the District could provide services for him in the District. XXXX stated that the Parent told him that the Student had certain XXXX and XXXX issues and they discussed the private schools that the Student previously attended. The Parent stated that XXXX was unhappy with XXXX, and XXXX suggested that they hold a CSE meeting to discuss the Student. XXXX told the Parent that XXXX would need XXXX cooperation in getting the Student’s packet together, and XXXX stated that XXXX would either bring documentation to the meeting or authorize the District to get the information. XXXX confirmed that XXXX did not review any documents relating to the Student prior to the CSE meeting, and XXXX did not confer with XXXX prior to the meeting (R. 668-669, 688-693, 709-710).

XXXX stated that a CSE meeting was held on August 30, 2010, and that one of the CSE’s recommendations for the Student was for XXXX and XXXX to be administered by a XXXX in the XXXX. XXXX stated that the Parent told him during their telephone conversation on July 15 and at the CSE meeting held on August 30 that the Student was going to be attending XXXX for the 2010/11 school year. On re-direct examination, XXXX confirmed that XXXX (R. 670-672, 732-733).

On cross-examination, XXXX stated that the Parent indicated XXXX willingness to attend a CSE meeting for the Student, and that the timing for the meeting was scheduled by the District through XXXX. XXXX asked XXXX to schedule the meeting as soon as XXXX could, and August 30 was the soonest that all CSE meeting participants could be present (R. 693-696).

XXXX testified that at the CSE meeting, the Parent stated XXXX interest in looking at a classroom within the District’s XXXX, and that after XXXX visited XXXX sent a letter to him. XXXX stated that XXXX scheduled a CSE meeting for October 18, 2010 to discuss the Parent’s concerns as stated in XXXX letter, and that the Parent canceled the meeting. XXXX then received the Parent’s request for a hearing within a few days. On cross-examination, XXXX stated that there was discussion at the CSE meeting about XXXX by the XXXX. XXXX did not remember a request at the CSE meeting by the Parent or XXXX for a copy of the class profile, but XXXX remembered a request by the school principal for a class profile during the course of scheduling the classroom observation for the Parent, and that XXXX generated the profile in preparation for it. XXXX also testified that XXXX was aware of a delay in the Parent’s ability to view the class, due to a number of emergencies that took place with XXXX substitute teacher. XXXX did not observe the program until September 23, 2010 (R. 674-677, 698-707; Exs. J-1, J-8, J-10, J-11).

On cross-examination, XXXX stated that at XXXX suggestion, the Parent stated XXXX interest in viewing the XXXX program outlined in the draft IEP. XXXX also stated that although the Student’s packet arrived at the special education office prior to the CSE meeting, XXXX did not know whether any members of the CSE read the packet before the meeting. XXXX stated that materials relating to the Student were not circulated to any other CSE member prior to the meeting. XXXX also stated that at the meeting, the Student’s classification was not discussed, no one raised any issue as to whether the Student was properly classified, and there was no discussion about the attributes of XXXX and its appropriateness for the Student (R. 682-684, 710-714; Ex. J- 5).

XXXX testified that the CSE generated an IESP, and not an IEP, for the Student for the 2010/11 school year. XXXX stated that the Parent made it clear that the Student was going to be attending XXXX, and the wrong form was used to generate the IESP due to a clerical error. On cross-examination, XXXX compared the District’s draft IEP with the document that was produced after the CSE meeting and stated that there was no summary of the meeting contained in the final document. XXXX also stated that there was no discussion about whether the The Student was XXXX and XXXX capable of XXXX. There were also no discussions regarding the Student’s need, if any, for XXXX or XXXX at the meeting (R. 677-679, 714-717, 727-728; Exs. J-5, J-6).

On cross-examination, XXXX testified that XXXX had a conversation with the Parent on September 24, 2010 that was initiated by XXXX, and XXXX stated XXXX belief that the classroom in XXXX was not an appropriate placement for XXXX XXXX. XXXX also stated that XXXX would follow up their conversation with a letter, which XXXX did (R. 680-682; Exs. J-8, J-9).

CONCLUSIONS OF LAW

Two purposes behind The Individuals with Disabilities Education Act (“IDEA”) [20 U.S.C. Sections 1400-1482] are (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected [20 U.S.C. Section 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S.Ct. 2484, 2491 (2009); Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)].

A FAPE is offered to a student when (a) The board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [Rowley, 458 U.S. at 206-207; Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under The IDEA [A.C. c. Board of Education of The Chappaqua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.D.N.Y. 2007); see also O’Toole v. OlaThe District School Unified School District No. 233, 144 F.3d 692, 701 (10th Cir. 1998)]. Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App. LEXIS 17947].

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

Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132]. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student with an opportunity greater than mere ‘trivial advancement’” [Cerra, 427 F.3d 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or that removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.D.N.Y. 2008)]. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade” [34 C.F.R. Section 300.101(c)(1); 8 N.Y.C.R.R. 200.4(c)(5)].

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

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], establiXXXXs annual goals related to those needs [34 C.F.R. Section 300.320(a)(2)(i); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see Application of The Department of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of The Department of Education, Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9]. Subsequent to its development, an IEP must be properly implemented [8 N.Y.C.R.R. Section 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087].

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Education Law Section 4404(1)c; see M.P.G. v. New York City Department of Education, 2010 WL 3398256 at *7 (S.D.N.Y. August 27, 2010; Application of the Board of Education, SRO Appeal No. 10-097; Application for a Review of a Determination by a Hearing Officer, SRO Appeal No. 10-123; Application for a Review of a Determination by a Hearing Officer, SRO Appeal No. 10-101.

As a preliminary matter, the parties spent considerable time arguing over whether the document that was created as a result of the August 30, 3010 CSE meeting was an IEP or an IESP (R. 47-51, 553-555; See District’s Post-Hearing Brief at pp. 11- 16; see also Parent’s Post-Hearing Brief at pp. 5-7). It is undisputed that the District constitutes the Student’s district of residence, since XXXX lives with XXXX Parent within the District’s boundaries, and district of location, in that the XXXX is located within the District’s boundaries. In September 2007, the New York State Education Department issued a guidance memorandum to inform school districts of their responsibilities to provide special education services to students with disabilities who are enrolled in nonpublic elementary or secondary school districts beginning with the 2007/08 school year and thereafter. A copy of the memorandum is attached as Exhibit A to the Decision and Order.

The memorandum states that Section 3602-c of the Education Law was amended to comply with federal law and regulation to require the public school where the nonpublic school is located to provide students with disabilities enrolled in nonpublic elementary and secondary schools by their parents with special education services. The guidance memorandum contains an attachment that describes the responsibilities of a school district where a nonpublic school is located regarding child find and individual evaluations, CSE responsibilities, provision of special education services to New York State residents, consultation with nonpublic schools and parent representatives, due process responsibilities, data collection and reporting, and use of federal funds.

According to the guidance memorandum, the school district of location is responsible for child find for students who are parentally placed in nonpublic schools located in their geographic boundaries, and must consult with the nonpublic schools where students are parentally placed to determine an accurate count of students with disabilities attending such schools and receiving special education services. In addition, the district of location must have procedures for conducting evaluations and reevaluations of students enrolled in nonpublic schools located within their district within required timeframes and at no cost to parents. Moreover, unless the parent and the district agree otherwise, the district of location must conduct a reevaluation at least once every three years of each eligible parentally placed nonpublic school student with a disability, even if the student is not currently receiving special education services.

The CSE of a district of location must develop an IESP for students with disabilities who are New York State residents and who are enrolled by their parents in nonpublic elementary and secondary schools located in the geographic boundaries of the public school. The IESP must be developed in the same manner and with the same contents as an IEP is developed. In addition, the CSE must ensure that a representative of the nonpublic school where the student attends is included in the meeting where the IESP is developed. If the representative cannot attend, the school district must use other methods to insure participation by the nonpublic school, including individual or conference telephone calls. The IESP must be reviewed periodically, but not less than annually.

The guidance memorandum also contains a series of questions and answers with respect to child find responsibilities and provision of services. Question 7 asks, “Which school district would convene a meeting of the CSE to determine the student’s eligibility and develop the IESP?” THE answer states, “If a student is parentally placed in a nonpublic school and is suspected of having a disability, the district of location is responsible to conduct the CSE meeting to determine a student’s eligibility for special education and, if determined eligible for special education, to recommend the special education services the student will receive and document such recommendations on an IESP.”

Question 12 asks, “Must the district of residence develop an IEP for a student who is parentally placed and conduct annual reviews of the IEP?” The answer states, “USED has provided guidance that states: ‘If a determination is made through the child find process by the LEA (local educational agency) where the private school is located that a child needs special education and related services and a parent makes clear his or her intent to keep the child enrolled in the private elementary or secondary school located in another LEA, The LEA where the child resides need not make FAPE available to the child.’ “Therefore, if tThe parents make clear their intention to keep their child enrolled in the nonpublic elementary or secondary school, the district of residence need not develop or annually review an IEP for the student.” Question 20 asks, “Must the IESP indicate that the student has been parentally placed in a nonpublic school?” The answer states, “Yes. Since an IESP must have the same components as an IEP which includes a recommendation for placement, the IESP should indicate placement as ‘student is parentally placed in a nonpublic school.”

In Application of a Student with a Disability, Appeal No. 11-011, a district of residence appealed from a determination that it was required to develop an IEP for a student who attended a nonpublic school outside of the District’s boundaries, because the parents made it clear that they were enrolling the student in a private school located outside of their district of residence through various ways, including execution of a re-enrollment contract and payment of tuition costs prior to requesting the CSE of the district of residence to develop an IEP for the Student. Although the district of residence attempted to rely on Question 12 for the proposition that it was relieved of its obligation to evaluate the student, determine the student’s eligibility to receive special education programs and related services, and develop an IEP for the student, the SRO held that the necessary condition precedent in order to displace its obligation was for the district of location to determine, through the child find process, that the student needs special education and related services. He also found that the parents requested the district of residence to review the student’s eligibility for special education programs and related services and develop an IEP. Moreover, the parents alleged that the district failed to offer the student a FAPE and affirmatively placed a FAPE at issue. The SRO found that under the facts of that case, The district of residence remained responsible for evaluating the student, determining the student’s eligibility to receive special education programs and related services, and developing an IEP, and that its failure to develop an IEP denied the student a FAPE.

In Application of a Student with a Disability, Appeal No. 09-133, the SRO found that parents were not entitled to a concurrent IEP from the district of residence because the student had been evaluated by a district of location and an IESP was developed by it, The parents accepted the IESP developed by the district of location, and the parents did not give the district of residence parental consent to evaluate the student and develop an IEP.

This case is unique, in that the district of residence is also the district of location. The District argues that the Parent made clear that the Student was attending XXXX for the 2010/11 school year, and that in its capacity as the district of location, it offered services through an IESP. However, a review of the record shows that during the course of the telephone conversation that occurred on July 15, 2010 between the Parent and XXXX, XXXX initiated a discussion with the Parent stating, that after hearing about the Student, XXXX believed that the District could provide services for him in the District, that XXXX suggested that they hold a CSE meeting to discuss the Student, and that XXXX would need the Parent’s cooperation in getting the Student’s packet together. XXXX also confirmed that at the CSE meeting, the Parent stated XXXX interest in looking at a classroom within the District’s XXXX school, and that XXXX visited it based on the District’s timetable. Moreover, a review of the document generated as a result of the August 30, 2010 meeting shows that the CSE recommended a specific XXXX program within the District, and a review of the Parent’s hearing request challenges the recommended placement as inappropriate, placing FAPE at issue (R. 672-673, 677-679, 688-693, 698, 700-707; Exs. IHO-3, J-6).

Based on the State Education Department’s guidance memorandum and upon the SRO cases cited above, I find that the document referred to as Joint Exhibit 6 is properly referred to as an IEP, and not an IESP, based on the CSE’s recommendation of a specific XXXX program located within The district of residence.

Insofar as the District conceded that it could not meet its burden of proof with respect to the appropriateness of its placement recommendations, I find that the District denied the Student a FAPE for the 2010/11 school year.

It is well settled that a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim [Florence County School District Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education, 471 U.S. 359, 369-370 (1985)]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA [471 U.S. at 370-71; Gagliardo v. Arlington Central School District, 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE [Burlington, 471 U.S. at 370-71; see 20 U.S.C. Section 1412(a)(10)(C)(ii); 34 C.F.R. Section 300.148].

Turning next to whether the unilateral placement obtained by the Parent was appropriate for the Student, a private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370], i.e., The private school offered an educational program which met the Student’s special education needs [see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp.2d at 419]. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement [Carter, 510 U.S. at 14]. The private school need not employ certified special education teachers or have its own IEP for the student [Carter, 510 U.S. 7; Application of the Board of Education, Appeal No. 08-085; Application of the Department of Education, Appeal No. 08-025; Application of the Board of Education, Appeal No. 08-016; Application of the Board of Education, Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-105]. Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” [Gagliardo, 489 F.3d at 112; see M.S. v. Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)]. “Subject to certain limited exceptions, ‘The same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement ...” [Gagliardo, 489 F.3d at 112; Frank G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions)]. Parents need not show that the placement provides every special service necessary to maximize the student’s potential [Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 (citing Berger v. Medina City School District, 348 F.3d 513, 522 (6th Cir. 2003)(stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”)]. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child’” [Gagliardo, 489 F.3d at 115 (emphasis in original), citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89].

The Second Circuit has set forth the standard for determining whether the parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

No one factor is necessarily dispositive in determining whether the parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. [Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65].

The District argues that the XXXX introduced at the hearing, together with other various reports and course information, provide no objective measurements of performance, and are not subject to quantifiable, objective measures of academic performance (See District’s Post-Hearing Brief at pp. 23-25). However, I have considered the Second Circuit’s remarks in Frank G. v. Board of Education of Hyde Park Central School District, 459 F.3d 356, 364-65, which state:

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n.28; see also Sherman v. Mamaroneck Union Free School District, 340 F.3d 87, 93 (2d Cir. 2003)( noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

The Second Circuit cited Knable v. Bexley City School District, 238 F.3d 755, 768 (6th Cir 2001), which held that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly. The Court also cited M.S. v. Yonkers Board of Education, 231 F.3d 96, 105 (2d Cir. 2000), for the proposition that the test for parents’ private placements is not perfection.

The record contains a document that explains in detail the designations that students receive in their XXXX, including specific criteria to be considered by staff in assigning given levels of performance (Ex. J-31).

A review of the Hearing record reveals that the XXXX provided the Student with educational instruction specially designed to meet the unique needs of the Student, supported by such services that are necessary to permit XXXX to benefit from instruction. The record also shows that the Student progressed in XXXX placement in XXXX during the 2010/11 school year.

At XXXX, the Student received XXXX class where XXXX worked on XXXX, XXXX, XXXX, XXXX, and XXXX. XXXX teacher noted that the Student has a “XXXX” (Ex. J-29). XXXX stated in XXXX report that the Student benefitted from XXXX (Ex. J- 13). In the area of XXXX, the Student was grouped with XXXX. XXXX teacher stated that XXXX. XXXX also noted that XXXX as XXXX did in the beginning of the term. XXXX also stated that XXXX improved in XXXX and XXXX. XXXX noted in XXXX November 22, 2010 report that XXXX. XXXX report in XXXX indicated that XXXX was XXXX. XXXX noted that during the 2009/10 school year, the Student demonstrated XXXX. XXXX also stated that the Student XXXX. The record also shows a XXXX (R. 127, 482-483, 486-490; Exs. J-3, J-13, J-18, J-29).

The Student also participates in XXXX as part of XXXX school day at XXXX. XXXX is placed with XXXX. During the first 15 minutes, XXXX works XXXX. The next 35 to 40 minutes is spent on XXXX. The record shows that the Student has a XXXX. The Student’s XXXX dated October 18, 2010 indicates that XXXX. XXXX indicated that, and that XXXX. The District acknowledged the Student’s difficulty in that area by recommending XXXX (R. 132; Exs. J-6, J-13, J-27).

The Student also participates in XXXX. It consists of XXXX. In addition, XXXX (R. 118, 131-134).

XXXX reported that as of the November 22, 2010 report, the Student XXXX. XXXX reported that as of November 22, 2010, the XXXX (Ex. J-29).

In XXXX, as of November 22, 2010, the Student was XXXX. The teacher described XXXX (Exs. J-29, J-31).

In XXXX, as of November 22, 2010, the Student was XXXX (Ex. J-29).

In XXXX, the Student XXXX (Ex. J-29).

XXXX testified that XXXX is XXXX (R. 119-120). XXXX stated that XXXX (R. 122-123; Ex. J-18).

Although the District disputes the Student’s XXXX diagnosis (see The District’s Post-Hearing Brief at pp. 20-21) and XXXX disagreed with XXXX’s diagnoses of XXXX and XXXX (R. 639-640), a review of the IEP generated by the District shows that the CSE recommended XXXX (R. 595-599; Exs. J-6, J-17, J-18, J-23).

The CSE also recommended XXXX (see The District’s Post-Hearing Brief at p. 20) and XXXX disagreed with XXXX’s conclusion that XXXX (R. 586-588; Ex. J-18).

THE CSE also recommended a number of annual goals in the area of XXXX, (Ex. J-6). Moreover, The Student’s test performance on XXXX indicated XXXX (Ex. J- 18). In addition, the Student’s XXXX for the 2009/10 school year, XXXX, stated in XXXX annual report in preparation for the 2010/11 school year that XXXX (Exs. J-4, J-6, J-13).

XXXX does not arrange for XXXX. XXXX.the District argues that XXXX is not providing the Student with XXXX (see District’s Post-Hearing Brief at p. 21). XXXX testified that there were no discussions at the CSE meeting held on August 30, 2010 regarding the Student’s need, if any, for XXXX. In reviewing the District’s IEP for the 2010/2011 school year, there were no XXXX (R. 78-81, 134, 176-178, 720-722, 728; Ex. J-6).

A review of the document emanating from the August 30, 2010 meeting shows that the CSE recommended XXXX (R. 467-470; Exs. J-6, J-9).

The document that emanated from the August 30, 2010 meeting also shows that the CSE XXXX (see District’s Post-Hearing Brief at p. 21), and XXXX (R. 605, 728; Ex. J-6).

The State Review Officer has held that the failure of a private school to offer XXXX does not rise to the level of finding that the school is an inappropriate placement. Application for Review of a Determination of a Hearing Officer, Appeal No. 10-101; Application of The New York City Department of Education, Appeal No. 05-074; Application of a Child with a Disability, Appeal No. 02-093.

The evidence shows that the Student’s XXXX difficulties are addressed in part through the XXXX (R. 134-135, 187-188, 330-332, 339-340).

I find that the Parent has met XXXX burden with respect to the appropriateness of the Student’s placement in XXXX. The Student’s needs in the areas of XXXX and XXXX, as identified by the District’s CSE, and in XXXX, as identified in XXXX’s standardized testing, are being addressed in XXXX. I also find that the Student benefitted from XXXX, given XXXX XXXX difficulties, because XXXX (R. 148-152, 158- 165, 196, 202, 245-246, 248, 512-514; Exs. J-6, J-31).

Although the District argues that XXXX (see District’s Post-Hearing Brief at p. 21), the evidence shows that XXXX. Moreover, even though XXXX testified as to XXXX (R. 609-612, 712).

The final criterion for an award of tuition reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA [Burlington, 471 U.S. at 374; M.C. v. Voluntown Board of Education, 226 F.3d 60, 68 (2d Cir. 2000)]; see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasosnable level of reimbursement that should be required”]. Such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, The reasonableness of the parties’ positions, and like matters” [Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530, 533 (N.D.N.Y. 2001), citing Town of Burlington v. Department of Education, 736 F.2d at 773, 801-02 (1st Cir. 1984) aff’d 471 U.S. 359 (1985). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent’s conduct precluded the CSE’s ability to develop an appropriate IEP [Warren G. v. Cumberland County School District, 190 F.3d 80, 86 (3d Cir. 1999); see Application of The Board of Education, Appeal No. 04-102; Application of The Board of Education, Appeal No. 04-026.

In the absence of evidence demonstrating that respondent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition reimbursement. Application of a Child with a Disability, Appeal No. 04-049. The record reveals that the Parent enrolled the Student at XXXX in April 2010, following XXXX’s annual review. At that time, the Parent still resided in XXXX, and XXXX was not in agreement with that CSE’s recommendations. I find that the Parent’s actions in enrolling the Student at XXXX and payment of tuition were reasonable. The Parent did not move into the District until August 4, 2010. However, XXXX contacted the District on July 15, 2010, prior to acquiring residency in the District, to advise that XXXX was going to be moving to XXXX, that XXXX child had an IEP from XXXX, and both agreed that a CSE meeting was necessary. The District waited until August 30, 2010 to hold a CSE meeting, through no fault of the Parent. On August 30, 2010, the Parent participated in the process and agreed to observe the District’s recommended program. The observation was delayed until September 23, 2010, through no fault of the Parent. School started at XXXX on September 8, 2010 (R. 111-114, 229-230, 428, 668-669, 692-695, 705-707).

Although the District argues that it was a foregone conclusion that the Student would be attending XXXX well before July 15, 2010, and at no time was XXXX ever genuinely open to considering a public school program as an alternative to XXXX (see District’s Post-Hearing Brief at p. 27), it cannot be proven based on the Parent’s conduct. The record shows that the Parent fully cooperated with the CSE in the development of an IEP, and none of the Parent’s conduct precluded the CSE’s ability to develop an appropriate IEP (R. 668-669, 671-672, 674, 693-696, 699, 705-707; Exs. J-7, J-8).

Considering all relevant factors, including but not limited to the District’s failure to offer the Student FAPE, regardless of the Parent’s intentions as alleged by the District, I find that the Parent is entitled to tuition reimbursement. See Application of The New York City Department of Education, Appeal No. 05-074.

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense [20 U.S.C. Section 1412(a)(10)(C)(iii)(I); see 34 C.F.R. Section 300.148(d)(1)]. The statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools” [Greenland School District v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)]. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with the statutory provision [Greenland, 358 F.3d at 160; Ms. M. v. Portland School Committee, 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City School District, 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public School Committee, 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial School District, 2007 WL 3085854, at *13 (E.D. Pa. October 22, 2007)].

The record shows that the Parent looked at a rental in XXXX in June 2010, but XXXX did not make a determination to move to XXXX until July 2010 and when XXXX did, XXXX notified the District of XXXX intention to move on July 15, 2010. The District waited 6 weeks to hold a CSE meeting, due to staff unavailability, and the evidence shows that the CSE meeting proceeded on August 30, 2010 without the presence of a XXXX, even though the IEP indicates that XXXX (R. 112-113, 693-696). See Education Law Section 4402(1)(b)(1)(a)(ii); 8 N.Y.C.R.R. Section 200.3(a)(1)(ii).

Given the purpose of the statutory provision, i.e., to provide the school system with an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether FAPE could be provided in the public schools, I find that The Parent gave the District that opportunity when they met on August 30, 2010, and in the exercise of my discretion, I decline to order a reduction in reimbursement for that reason.

ORDER

Based upon the above, it is hereby

ORDERED, that the Parents’ application for tuition reimbursement for the Student’s unilateral placement in XXXX for the 2010/11 school year is hereby granted; and it is further

ORDERED, that the District’s application for a declaratory finding that the Parent’s entitlement to tuition reimbursement is barred based on the equities is denied; and it is further

ORDERED, that the District’s application to reduce or deny the Parent’s claim for tuition reimbursement is denied.

NOTICE OF RIGHT TO APPEAL

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

DATED: May 30, 2011

New York

____________________________________

Impartial Hearing Officer