Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

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

XXXX,

Respondent. X

INTRODUCTION AND POSITION OF THE PARTIES

This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioners XXXX and XXXX (hereinafter referred to as the “Parents”), requested an Impartial Hearing on behalf of their child, XXXX, (hereinafter referred to as the “Student”), contesting on procedural and substantive grounds, the appropriateness of IEP and placement recommendations made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for the 2009/10 school year. The Parents seek continued placement at the XXXX School (currently funded by the District as the Student’s status quo placement), where XXXX receives XXXX (hereinafter referred to as “XXXX”), in addition to XXXX. XXXX also receives XXXX, XXXX, and XXXX. The Parents also seek XXXX. In addition, they seek XXXX (Ex. IHO-2).

The District asserts that it provided the Student with a free appropriate public education (hereinafter referred to as “FAPE”) in the least restrictive environment (hereinafter referred to as the “LRE”); that it has complied with federal and state law and regulation; that XXXX, as the Parents have “XXXX;” that the Parents have XXX; that there are no XXXX; and XXXX (Ex. IHO-8).

PROCEDURAL HISTORY

In a Demand for Due Process and Pendency dated August 19, 2009, the Parents requested an Impartial Hearing “XXXX” (Ex. IHO-2).

On August 27, 2009, the IHO was advised that she was selected to act as Impartial Hearing Officer. In letters dated August 27, 2009 and September 4, 2009, the IHO received written confirmation of her appointment (Exs. IHO-1, IHO-7).

On October 1, 2009, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Tentative hearing dates were scheduled, pending confirmation of the parties’ availability (Ex. IHO-9).

There were a total of 28 days of hearing in this matter. The first day of impartial hearing was held on November 30, 2009. Additional hearings were held on December 1159, 1234, 1358, 1490, 1657, 1808, 1883, 2051, 2167, 2257, 2356, 2428, 2480, 2690, 2833, 2959, 3042, 3163, 3257; Ex. IHO-26).

The District presented 4 witnesses on its direct case. The Parents presented 6 witnesses on their direct case. The District presented 2 witnesses on its rebuttal case. The transcript is 3,389 pages in length. The District submitted a total of 22 exhibits. The Parents submitted a total of 25 exhibits. The Impartial Hearing Officer submitted a total of 37 exhibits. The Impartial Hearing Officer granted a total of 25 requests for extension of the 45 day rule (Exs. IHO-10, IHO-11, IHO-13, IHO-14, IHO-15, IHO-17, IHO-18, IHO-19, IHO-20, IHO-21, IHO-22, IHO-23, IHO-24, IHO-25, IHO-27, IHO-28, IHO-29, IHO-30, IHO-31, IHO-32, IHO-33, IHO-34, IHO-35, IHO-36, IHO-37). The IHO’s decision was due on December 7, 2011 (Ex. IHO-37). Both parties submitted post-hearing memoranda of law.

ISSUES

In the Due Process Complaint Notice, it is stated that the Parents XXXX. They assert that there are numerous procedural and substantive problems with the Student’s IEP and the manner in which it was developed. They assert that the District failed to

XXXX.

In its Answer to the Demand for Due Process, the District asserts that the CSE XXXX (Ex. IHO-8).

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX years old. XXXX is classified as a student with XXXX. XXXX suffers from XXXX and XXXX takes medications, including XXXX and XXXX. The Student is XXXX and XXXX. XXXX uses XXXX. The Student XXXX (Ex. D-17).

The Parent testified that they began to have concerns about the Student’s XXXX (R. 2171-2176, 3068).

The Parent testified that the Student XXXX (R. 2177-2185, 3068-3071).

The Student was evaluated by XXXX, and the Parents thereafter met with the XXXX to discuss a change in placement. The Student began to attend XXXX (R. 2191- 2194, 3072-3073, 3075-3080).

In June 2003, XXXX conducted a XXXX and recommended XXXX (R. 2194- 2197, 3047).

In January 2004, in preparation for XXXX. On cross-examination, the Parent stated that XXXX (R. 2198-2200, 2204-2205, 3058-3060, 3080-3081, 3226-3230).

The Parent testified that XXXX (R. 2205-2206).

The CSE reconvened in November 2004 to review XXXX’s report and to review the Student’s progress report for the ^[1]st marking period. It was recommended that the Student begin to attend XXXX. The Student XXXX. The District sought to conduct

XXXX, with the Parents’ consent (R. 2207-2208, 2212-2217, 3081-3082, 3084-3087; Exs. P-H, P-I, P-J, P-K).

The Parent testified that XXXX. The Parent stated that XXXX (R. 2222-2231, 2236, 3061-3062, 3082, 3143-3145, 3241-3242; Exs. P-L, P-M).

In August 2005, the Student XXXX (R. 2231-2240; Exs. P-N, P-O).

In January 2006, in addition to XXXX, the Parent privately placed the Student at XXXX. The Parents disagreed and requested an impartial hearing. The parties agreed to continue the program that was in place during the 2005/06 school year, consisting of XXXX (R. 2240-2250, 2251-2254, 2432-2434, 3065-3066, 3100; Exs. P-P, P-S).

In November 2006, the Parent took the Student to see XXXX. The CSE agreed to XXXX (R. 2438-2439, 2440-2441, 3092-3094, 3105-3106).

In or about May 2007, the Student experienced XXXX (R. 2442-2450, 2453- 2454, 3090-3092, 3094-3100, 3109-3113, 3124-3128; Ex. P-T).

The CSE met for the Student’s annual review in June 2007. The Parent stated that the CSE reviewed the Student’s progress, recommended goals and objectives, and recommended placement at XXXX. The Student also received XXXX. On cross-examination, she stated that she took the Student to XXXX on two occasions during the week prior to the start of school (R. 2459-2463, 3131-3139).

In April 2008, the CSE met for the Student’s annual review for the 2008/09 school year. The Student’s progress was reviewed and goals were recommended. XXXX and XXXX conducted an observation of the Student at XXXX, and stated that XXXX. The Parent confirmed that XXXX. The Parent consented to the CSE’s requests for triennial testing to include XXXX. The CSE also requested consent to XXXX. At that time, the Parent also sought an independent evaluation by XXXX (R. 2464-2469, 3166- 3167).

In August 2008, the CSE reviewed XXXX’s evaluation. The District had received XXXX. The Student had been XXXX, identified as XXXX and the XXXX. The CSE recommended placement for the Student in XXXX. The Parents and XXXX staff disagreed with the recommendation and asked the CSE to consider continuing the Student at XXXX since XXXX made progress and the CSE found the program to be appropriate for the 2007/08 school year. The CSE declined to recommend XXXX for the 2008/09 school year. The Parents requested an impartial hearing, and the Student was maintained in the XXXX School by the District, as XXXX status quo placement. The Parent testified that the Student continued to make progress during the 2008/09 school year, although XXXX. XXXX continued to work on XXXX. On cross-examination, the Parent confirmed that the Student’s teachers during the summer 2008 at XXXX changed several times and that XXXX changed classrooms three times during the 2008/09 school year. She stated that the Student had difficulties in XXXX (R. 2470- 2477, 3169-3177, 3179-3183).

The Parent testified that during the 2008/09 school year, the Student made progress on all of XXXX IEP goals. She also stated that XXXX (R. 2483-2484).

The Parent testified regarding her participation in 4 CSE meetings that were held in preparation for the 2009/10 school year. On April 30, 2009, the CSE met for the first time. They reviewed the Student’s present levels of performance and the XXXX progress report. She stated that XXXX briefly reviewed his report and an updated report from XXXX was also reviewed. On cross-examination, the Parent acknowledged that XXXX made his presentation and he participated in a discussion about a classroom observation that was conducted by XXXX and XXXX. The CSE requested consent for conducting updated XXXX evaluations. The CSE meeting lasted 3 hours (R. 2487- 2490, 3187-3188, 3205-3206).

The CSE reconvened on May 14, 2009 to review the updated XXXX evaluations. XXXX reviewed 30 proposed goals and objectives. XXXX, a special education teacher in the District’s XXXX program, reviewed the Student’s results from XXXX and XXXX reviewed their observation at XXXX. The Parent stated that XXXX believed that additional goals were needed. XXXX reviewed the results of the XXXX and recommended XXXX. XXXX reviewed her XXXX evaluation and also recommended services. No XXXX were recommended at that time. The Parent confirmed that the Student’s needs were discussed in the context of reviewing the evaluations and observations. It was agreed that the parties would engage in a telephone conference prior to the next scheduled CSE meeting to review proposed goals (R. 2495-2496, 2500-2504, 3202-3203, 3206).

On June 9, 2009, District staff and XXXX staff reviewed proposed goals during the course of a telephone conference. The Parent stated that she was not a part of the phone conference because she was not asked to participate by XXXX. On cross-examination, she stated that she did not ask XXXX to reschedule the teleconference. The Parent had a XXXX that same day, and she and XXXX reviewed the proposed goals and discussed what occurred during the phone conference. The Parent did not contact the District to complain, because she was not that upset about it, having had access to the goals and having had an opportunity to participate in getting the information together (R. 2505-2509, 3203-3204).

At the June 19, 2009 CSE meeting, the Parent stated her concern that the Student had XXXX, that some of the proposed goals were targeted in the past, that the Student was unsuccessful on them, and that XXXX. She stated that 14 to 15 XXXX were eliminated. Both the District goals and XXXX goals were reviewed and merged. SPAMs were also reviewed. The meeting lasted 3 hours (R. 2509-2512, 2514-2516, 2521-2523, 3204-3205).

At the July 21, 2009 CSE meeting, the Parent, XXXX, and XXXX went to the back of the room to review changes made by XXXX and XXXX to the information inputted into XXXX by XXXX. On cross-examination, the Parent stated that the changes related to the form in which information appeared, and that there were no substantive changes made. The Parent again expressed concerns about XXXX, and stated her opinion that XXXX. The Parent also asked questions regarding the XXXX. It was explained that XXXX would have provided XXXX, while XXXX was on maternity leave. The Parent expressed concerns about the Student’s XXXX. On rebuttal, XXXX stated that students had been XXXX. Typical students were exposed to XXXX. Students and staff don’t respond to XXXX, because they are used to seeing XXXX. She confirmed that staff and students in the XXXX and that staff were invited, as part of staff development, to learn about XXXX during the 2009/10 school year. The Parent requested a written description of the proposed program so that she could discuss it with her husband, which she did not receive until the parties’ resolution session in connection with the impartial hearing. The Parent testified that the CSE spent a total of between 15 and 16 hours in making its recommendations for the Student for the 2009/10 school year (R. 2524-2526, 2929-2930, 2933-2936, 2993, 2996-2997, 3186, 3206-3208, 3343-3347; Ex. D-14).

On cross-examination, the Parent confirmed that XXXX presented the following information about the proposed program. She spoke about the fact that XXXX (R. 3212-3221).

The Parent did not recall discussions at the CSE meeting regarding XXXX (R. 3213-3222, 3250).

The Parent testified that XXXX wanted to discuss XXXX (R. 2936-2940; Exs. D-

14, P-C, P-U).

The Parent reviewed the IEP and stated that it did not fully include all of the results of the evaluations. She stated her agreement with the recitation of the Student’s needs and abilities and with XXXX SPAMs as listed on the IEP. She stated her belief that XXXX. She also stated her disagreement with the proposed program and with the accuracy of some of the minutes. She stated that she never received a copy of an IEP from the April 30, 2009 CSE meeting. She also stated that she did not decline to participate in XXXX (R. 2946-2952; Ex. D-17).

The Parent reviewed each of the reasons stated in XXXX’s letter regarding the reasons the CSE did not approve the Parents’ request that the Student remain in XXXX. She noted that the District recommended placement at XXXX for the 2007/08 school year and that none of the reasons put forth by XXXX in his letter were areas of concern for the District when it recommended placement at XXXX during the 2007/08 school year (R. 2988-2991; Ex. D-18).

The Parent stated that there was never discussion at a CSE meeting about XXXX. The Parent also reviewed a letter by XXXX, in response to a letter written by her, after she reviewed XXXX (R. 2997-2998, 3001-3005, 3014-3018, 3028-3030; Exs. D-19, P-C).

The Parent testified regarding the progress she has seen the Student make at home, since his entry into XXXX, in XXXX (R. 3037-3039).

Over the years, the Student was evaluated both privately by the Parents and publicly by the District. On August 10, 2003, the Student underwent a XXXX Evaluation by XXXX, due to parental concerns of XXXX. Prior to testing, the Student XXXX (Exs. D-17, P-W).

On March 14, 2005, the Student was seen for a XXXX consultation by XXXX. The Student XXXX. The Student was diagnosed at that time with XXXX. XXXX concurred with the Parents’ efforts to XXXX, and recommended placement in XXXX (Exs P-L, P-M).

On August 31, 2005, the Student was referred by the District for a XXXX Evaluation through XXXX, as part of XXXX triennial testing, to evaluate XXXX. Testing was conducted by XXXX, a New York State XXXX. The Student was XXXX. The Student XXXX (Ex. P-N).

On July 17, 2007, the Student underwent a XXXX evaluation by XXXX At this time, XXXX was receiving XXXX. XXXX was scheduled to attend the XXXX School beginning in the 2007/08 school year in XXXX. XXXX stated that the Student began to XXXX (Ex. P-T).

On September 4 and September 5, 2008, the Student participated in an updated XXXX Evaluation conducted by XXXX, at the request of the District, as part of XXXX triennial review. The evaluation was conducted by XXXX, a New York State XXXX. A Family Interview was conducted on July 24, 2008, by XXXX and XXXX, a licensed XXXX. The Student was cooperative during testing but XXXX (Ex. D-4).

The Student was administered XXXX (Ex. D-4).

On March 10, 2009, the Student underwent a XXXX Evaluation by XXXX at the request of XXXX Parents, to assess the appropriateness of XXXX placement at the XXXX School and to measure progress in XXXX. XXXX observed the Student in XXXX home and at the XXXX School, and he conducted standardized testing in the home setting. The Parents reported that the Student XXXX (Ex. D-3).

XXXX also conducted an observation of the Student in his classroom environment at the XXXX School. He stated that the Student was XXXX (Ex. D-3).

XXXX concluded in his report that the Student’s placement in the XXXX School was appropriate; that XXXX continued to require XXXX (Ex. D-3).

The Student also underwent evaluations in the areas of XXXX at the request of the District. On May 8, 2009, the Student was evaluated at the XXXX by one of the District’s XXXX, in collaboration with one of the District’s XXXX. XXXX noted that in the past, the Student received XXXX. At the time of testing, the Student XXXX (Ex. D-6).

XXXX stated that the Parent was the primary source of information regarding the Student’s current level of functioning. She stated that the Student was XXXX (Ex. D-6).

XXXX stated that the Student presented with XXXX (Ex. D-6).

XXXX also noted the Student’s XXXX (Ex. D-6).

XXXX suggested a number of interventions for the Student. She also recommended XXXX (Ex. D-6).

XXXX, one of the District’s XXXX, conducted her evaluation of the Student simultaneously with XXXX’s evaluation. The Student XXXX (Ex. D-5).

XXXX reported that XXXX (Ex. D-5).

XXXX stated that the Student did not XXXX (Ex. D-5).

XXXX reported that the Student demonstrated XXXX (Ex. D-5).

The Student scored (Ex. D-5).

XXXX recommended that the Student XXXX (Ex. D-5).

Also on May 8, 2009, the Student participated in a XXXX Evaluation conducted by XXXX. XXXX stated that the Parent was present for the evaluation and was in agreement with the evaluator’s findings and observations. XXXX testing could not be given due to XXXX (Ex. D-7).

On August 11, 2009, the Student underwent a XXXX that was conducted by XXXX, at the Parents’ request. XXXX reported that the Parents were interested in making sure they were on the right track in managing the Student’s XXXX and ensuring maximum progress and success. XXXX stated that the visit was 60 minutes long with 45 minutes spent counseling regarding XXXX. It appears that XXXX conducted a brief XXXX of the Student, and the remainder her findings were based solely on her consultation with the Parents (Ex. P-V).

XXXX is the District’s XXXX. During the 2008/09 school year, she was a special education teacher and a XXXX for the District. She holds dual New York State certifications in XXXX. She is certified to teach students from preschool through age 21. XXXX is also a XXXX. She is trained in XXXX and has worked with students with XXXX. She has also trained others to work with students with XXXX, and she described her training sessions in detail. XXXX is experienced in XXXX and in XXXX. She also taught students with XXXX, wrote individualized programs for students with XXXX, and XXXX. She XXXX. She also XXXX (R. 30-37, 39-49, 251).

XXXX described the manner in which she taught teachers about XXXX, her experiences in teaching typical peers about XXXX, and mainstreaming XXXX students from her classroom into the mainstream, where typical peers served as role models for her students. Students from the mainstream also entered her classroom at the end of the day to spend time with her students (R. 49-53).

XXXX was employed by the District for 6 years as of the time of her testimony. She was hired as a special education teacher and her responsibilities included development of a program for XXXX students who attended school in the District. She was involved in developing programming for students and developing XXXX. The students in her XXXX program had XXXX, and XXXX (R. 53-56).

On cross-examination, XXXX stated this Student was one of the students in her XXXX class during the 2004/05 school year; that XXXX was a XXXX; that XXXX was placed with XXXX. After the Student was removed from the District’s program, XXXX began to attend XXXX (R. 255-258, 270-271, 336-340, 360-365, 375-379).

XXXX described the evolution of the XXXX program she created in the District. As of the 2009/10 school year, there were XXXX (R. 56-61).

During the 2008/09 school year, XXXX duties were divided between teaching XXXX and XXXX. She had a XXXX (R. 61-64, 279-281).

XXXX has a large role in staff development for the special education teachers who are teaching in the XXXX. They work on XXXX (R. 64-65, 67-75).

XXXX stated her familiarity with the Student. XXXX was XXXX that was started by her when she began to work for the District. She also observed the Student in each of XXXX educational placements after the Parents removed XXXX from the District’s program. XXXX described an observation that she conducted with XXXX of the Student in XXXX placement at the XXXX School on April 4, 2008, toward the end of the 2007/08 school year. She also toured the facility. XXXX described her observation in detail. She was able to ask questions of XXXX, the co-founder of the XXXX School. Although there were XXXX (R. 75-82; Ex. D-1).

On cross-examination, XXXX stated that for the 2007/08 school year, the CSE recommended XXXX. For the 2008/09 school year, the CSE recommended XXXX for the Student (R. 264-268; Exs. P-A, P-B).

XXXX related the substance of her discussion with XXXX, in which XXXX stated that the Student was doing very well in the placement, that XXXX transition to the new school went well, that XXXX was working on XXXX, that he was XXXX (R. 82-84).

XXXX observed the Student on two occasions during the 2008/09 school year. The first observation occurred in January 2009. XXXX accompanied her and they met with XXXX staff about the XXXX. Due to the Student’s XXXX. She also observed XXXX at XXXX School on April 27, 2009, in preparation for the Student’s annual review for the 2009/10 school year, and prepared a report of her observation to be reviewed by the CSE. She observed the Student with XXXX. On cross-examination, XXXX confirmed that two of her observations lasted approximately 45 minutes (R. 83-100, 272-277; Ex. D-2).

During the course of her observation in April 2009, XXXX had an opportunity to speak with XXXX, the XXXX of the XXXX School, and XXXX, a XXXX who is certified as a XXXX, regarding the Student’s progress at XXXX. They stated that the Student did not XXXX during the 2008/09 school year, but that those would be goals for the 2009/10 school year. She also stated that there was no XXXX (R. 96, 98, 100-104; Ex. D-2).

XXXX observed changes among staff working with XXXX, and XXXX did not exhibit any difficulties with teacher transitions. She also did not observe XXXX during her visit in April 2009, and she was told by XXXX and XXXX that the Student’s XXXX (R. 104-107).

XXXX attended a CSE meeting held for the Student’s annual review on April 30, 2009. The meeting was chaired by XXXX, the District’s XXXX. There were a number of presenters at the meeting, including XXXX and XXXX. XXXX reviewed an IEP developed by XXXX and discussed the Student’s progress on XXXX goals with the CSE. XXXX discussed XXXX Evaluation of the Student and spoke about his observations of the Student’s progress at XXXX and at home. He recommended XXXX between the Student and XXXX. XXXX stated in his report that the Student requires XXXX. The CSE meeting ended with a recommendation to conduct updated evaluations of the Student by XXXX, and that the CSE would reconvene once the evaluations were completed. The Parent consented to the evaluations (R. 107-120, 593-594; Exs. D-3, D-4).

The CSE reconvened for its second meeting on May 14, 2009, which occurred at the law offices of the District’s counsel. XXXX chaired the meeting. XXXX, the District’s XXXX, participated at the meeting by telephone, and reviewed her evaluation with the CSE. The XXXX evaluations were also reviewed with the CSE by phone by XXXX, who XXXX. XXXX recommended that the Student receive XXXX. XXXX summarized the discussions that occurred at the CSE with respect to each evaluation, and the services that were recommended by XXXX. No goals were developed for the recommended XXXX at that meeting. It was agreed that a telephone conference would be held to provide an opportunity for collaboration between District staff, the Parent, and XXXX School staff to create XXXX goals (R. 120-134; Exs. D-5, D-6, D-7).

On June 9, 2009, a telephone conference was held for the purpose of developing SPAMs and goals for XXXX. The meeting participants included XXXX, XXXX, XXXX, XXXX, XXXX, and XXXX. The Parent was supposed to be a participant in the conference. Draft goals were prepared by both XXXX and District staff, and they were reviewed during the telephone meeting. The District sent its draft goals to the Parent, with the intent of supplementing XXXX’s goals, but they were not aware that the Parent did not already have a copy of XXXX’s goals in her possession. Both sets of goals were presented at the next CSE meeting held on June 19, 2009, and all goals were reviewed with the Parent (R. 133-136, 142-152; Exs. D-8, D-9).

At the June 19, 2009 CSE meeting, the CSE reviewed the draft SPAMs prepared by XXXX, as requested during the June 9 telephone conference. XXXX document was reviewed in detail at the CSE meeting and it was reformatted to specify the Student’s needs and present levels of performance separately, in preparation for the drafting of goals. XXXX testified that XXXX was asked to draft the SPAMs since XXXX was attending school there and they knew what XXXX needs were. The CSE also reviewed the draft goals. The Parent expressed concerns with XXXX. She believed XXXX (R. 152-166; Exs. D-10, D-11, D-12).

At the July 21, 2009 CSE meeting, XXXX was informed that her draft goals were modified. XXXX, XXXX and the Parent went to the corner of the room to review every goal and changes were made until all of the parties were satisfied with them. The changes were shared with the CSE. The Parent believed that there were XXXX. XXXX reviewed the goals with the CSE and stated her belief that they aligned with XXXX. Those goals remained unchanged (R. 166-171).

After the goals were finalized, the CSE discussed placement for the Student. The Parents stated their belief that the XXXX School was an appropriate placement and they wanted the Student to continue XXXX enrollment for the 2009/10 school year. XXXX suggested an alternative placement, consisting of XXXX which would align with its pre-existing XXXX classroom. She described how the proposed program would operate. The Student would be placed in a classroom at XXXX with XXXX. On cross-examination, XXXX confirmed that she described the program at the meeting as “a work in progress” (R. 171-173, 322-323).

The Student’s program would have been staffed with XXXX. XXXX would also have had XXXX. On cross-examination, XXXX stated that, after reviewing all of the evaluations and hearing from XXXX, XXXX asked her whether XXXX. That conversation occurred after the June 2009 CSE meeting and before the July 2009 CSE meeting. On re-direct examination, XXXX stated that XXXX asked her to develop a program based on what she saw at XXXX together with recommendations made by the Student’s evaluators, XXXX, and XXXX (R. 173-182, 277-279, 342-343; Ex. D-13).

When the program was described for the Parent at the July 21, 2009 CSE meeting, she expressed concerns regarding XXXX. XXXX responded that XXXX. On cross-examination, she stated that she was unsure as to whether the Parent was made aware of XXXX at the CSE meeting, but that there was a follow-up meeting in which she believed XXXX was explained to her (R. 183-184, 296-297).

XXXX stated that she developed XXXX because, in listening to the recommendations of the XXXX staff and from different evaluators, all of the recommendations were for XXXX, and it was felt that such a program could be provided for XXXX within a school setting. She stated that the advantages of such an arrangement would be to provide the Student with XXXX (R. 184-186, 211-215, 358- 359; Exs. D-14, D-15).

On cross-examination, XXXX confirmed that at the start of the 2009/10 school year, the XXXX and the XXXX duties were handled by XXXX. Upon her return from maternity leave, XXXX assumed the position of XXXX and XXXX continued in the role of XXXX. She stated that XXXX became very ill some time prior to December 2009 and he left the District. On cross-examination, XXXX confirmed that XXXX was not a XXXX and XXXX. On re-direct examination, she confirmed that a XXXX is not a recognized New York State certification, and it is not required to serve as a XXXX. She also confirmed that XXXX had over 30 years experience working with students with XXXX and he developed the XXXX Program for XXXX. He also worked as a XXXX to another New York State public school (R. 291-294, 313, 333-335).

XXXX also testified about the discussion at the CSE meeting on July 21, 2009, regarding the Student’s transition into the District’s program. The Parent discussed a transition plan that had been written in the past, and XXXX reviewed it. The Parent or her attorney stated at the CSE meeting that since they were not in agreement with the placement recommendation, they would not schedule a date to work on a transition plan, and that the District could create a transition plan and send them a copy. XXXX also declined to participate. At some time after the last CSE meeting, XXXX drafted a transition plan that she thought would be appropriate for the Student, and she wanted to share it with the Parent. She explained the proposed transition plan in detail at the hearing. She stated that the plan was meant to be flexible, depending on the Student’s reaction to the transition process. It was scheduled to begin on week 5 of the District’s 12 month program. On cross-examination, XXXX stated that implementation of the transition plan would overlap with the school vacation, but that she spoke with the District’s Administration and was told that staff who would be involved in the transition agreed to be available. She did not speak with staff from XXXX about their availability, but she knew that the school would be in session during that time (R. 215-233, 323-327, 354-358, 797-798, 843; Ex. D-16).

On cross-examination, XXXX said that the District would utilize XXXX that was used at XXXX, to the extent it was successful, and that XXXX (R. 307-313, 349-350; Ex. D-17).

Also on cross-examination, XXXX confirmed that she was on a maternity leave during the summer 2009, and in November 2009, she returned to the District as a part-time XXXX for 10 hours per week for the duration of the 2009/10 school year. She took a leave from her special education classroom for the entire 2009/10 school year. She XXXX. No one other than herself is a certified XXXX in the District. On re-direct examination, she stated that there were approximately 6 students who had XXXX on their IEPs XXXX, and that no student other than this Student had XXXX (R. 281-284, 341-346, 379-380).

XXXX reviewed the District’s proposed IEP for the 2009/10 school year and stated her opinion that it contains an accurate profile of the Student, and that the SPAMs developed by the CSE were relied upon in developing the Student’s goals.

XXXX reviewed the Student’s goals and objectives and stated her opinion that they were appropriate for XXXX. She also stated her opinion that the program developed for the Student was appropriate, in that it was XXXX (R. 233-240, 346-347; Ex. D-17). On cross-examination, XXXX confirmed that XXXX was scheduled to be the XXXX for the Student, and her responsibilities would have been to XXXX (R. 298-300, 328-329; Ex. D-17).

XXXX stated her opinion that the program at XXXX was XXXX, that it was XXXX, that the District has a successful program for XXXX within the District, and that they could make a program for the Student within the District. She also stated that XXXX is a private school that is not State approved, and was not a program that could be considered by the CSE for placement (R. 240-242).

XXXX is the XXXX. He has a Masters Degree in XXXX and he has a XXXX. He is dually certified in New York State as XXXX and XXXX. XXXX worked as a XXXX in a neighboring public school for 10 years, where he XXXX. He has held several positions in the District, including XXXX. He described his current job duties as XXXX (R. 399- 405).

XXXX oversees the XXXX program, and the students who attend the District’s XXXX classes are both district residents and tuition students. He described XXXX as the most critical part of the XXXX program because XXXX. On cross-examination, he stated his opinion that this Student XXXX. All teachers in the XXXX program are New York State certified in special education, and the District looks for XXXX background, experience, and training. There are currently 4 teachers in the program. There are also teaching assistants, whom the District requires to be New York State certified special education teachers (R. 406-411, 506-507, 617-619).

Teachers in the XXXX program are trained throughout the year. They are exposed to all general education professional development, as well as trainings at XXXX. The teaching assistants are an added component to the XXXX, but they are not included as part of the class ratio. On cross-examination, XXXX testified regarding the qualifications of each of the teachers who were slated to work with the Student. XXXX. was a XXXX. XXXX worked as a XXXX. XXXX is a XXXX in the District’s XXXX program. She is a XXXX (R. 412-415, 564-567).

XXXX stated his familiarity with the Student, whom he observed in XXXX in-district XXXX class, as well as in XXXX programs at XXXX and the XXXX School. In his observations of the Student’s out of district placements, he observed XXXX (R. 416- 418).

XXXX chaired the Student’s CSE meetings in preparation for the 2009/10 school year. The first meeting occurred on April 30, 2009, and he recalled each of the presenters including, among others, XXXX and XXXX. XXXX reported on the Student’s progress in the XXXX program. XXXX reviewed his report and recommendations with the CSE. The CSE also reviewed reports by XXXX and the XXXX. At the end of the meeting, it was determined that the Student needed additional evaluations in the areas of XXXX before making decision on programming needs (R. 418-424; Exs. D-3, D-4).

The CSE reconvened on May 14, 2009 to review the additional completed evaluations and to hear about the results of an observation that was conducted by XXXX and XXXX. He summarized the discussions at the CSE meeting in detail. It was decided that all of the evaluators would come together and develop SPAMs and goals and objectives for the Student. He stated that XXXX, the XXXX, reported on the XXXX that she developed for the Student. The May meeting ended with agreement between District and XXXX staff that they would work together to develop SPAMs, goals, and objectives to be brought back to the CSE at a third meeting for review (R. 424-432; Exs. D-5, D-6, D-7).

The next meeting occurred on June 19, 2009. The drafted SPAMs were reviewed at the CSE meeting to separate out the Student’s needs, in order to develop goals and objectives based on XXXX needs. The CSE decided that the Student would continue in XXXX pendent placement at XXXX for the summer 2004. On cross-examination, XXXX clarified that the District has been paying for the Student’s placements at XXXX and the XXXX School since he was XXXX years old. XXXX agreed to input the Student’s goals and objectives into the District’s XXXX program prior to the next CSE meeting, which was scheduled for July 21, 2009. XXXX and XXXX made further modifications to the goals and objectives without the input of XXXX and the Parent, and during the July 21 meeting, XXXX, XXXX and the Parent met in the back of the room to review all of them prior to proceeding with the meeting. The CSE reached a consensus about the goals and the SPAMs at the end of the meeting. XXXX confirmed that XXXX presented an alternate program to the Parent that would be provided in order to integrate the Student into the District’s XXXX program. There was discussion regarding XXXX for the Student, where XXXX. On cross-examination, XXXX confirmed that there was no reference to the Student’s XXXX contained in the proposed IEP. Moreover, he confirmed that the Parent was not provided with an opportunity to observe the XXXX, although she was familiar with the program by virtue of the Student’s XXXX placement, and she had recommended that other students attend the XXXX program offered by the District. On redirect examination, XXXX confirmed that the CSE had not recommended placement for the Student in the XXXX, that the recommendation of the CSE was for placement in XXXX (R. 432-435, 441-462, 569- 574, 583-585, 614; Exs. D-12, D-17).

XXXX also discussed the students from XXXX class who would be XXXX. The Parent was provided with XXXX, as well as a copy of the transition plan, shortly after the July 21 meeting. There was discussion at the meeting about the creation of a transition plan, in which the Parent and her representatives chose not to participate. XXXX sent a follow-up letter enclosing the draft transition plan and asking the Parents to meet to review the plan. No meeting occurred. There was also discussion at the meeting about the XXXX, XXXX, and that he would also be involved with the Student’s transition plan. XXXX also testified that XXXX met with XXXX and himself to review the proposed program for the Student. XXXX stated his opinion that XXXX (R. 462-467, 473-475, 597-603; Exs. D-13, D-14, D-20).

XXXX stated his opinion that the SPAMs set forth in the proposed IEP for the 2009/10 school year were an accurate representation of the Student, and that the goals were appropriate for XXXX. He also stated that the Parent voiced her agreement with the goals at the July CSE meeting. In a letter dated July 30, 2009, XXXX reiterated the CSE’s recommendations to the Parents. In a letter dated August 10, 2009, the Parent responded to XXXX’s letter. He did not agree with the Parent’s statement that the recommended program was a “test program,” in that other students in the District XXXX. He also confirmed his recollection that the Parent and her legal representative did not wish to participate in the transition plan as they were not in agreement with the placement recommendation, and they asked that it be mailed to them after it was drafted (R. 477-490; Exs. D-17, D-18, D-19, P-C).

XXXX also stated his belief that the program recommended by the CSE for the 2009/10 school year was appropriate, based on all of the information obtained by the CSE during 4 CSE meetings, the contents of the Student’s evaluations, and the classroom observations. He believed that the program would have met the Student’s needs in XXXX (R. 490-492).

XXXX is a special education teacher in the District, who teaches an XXXX class for students in grades XXXX. At the time of her testimony, she was taking classes to obtain her XXXX. She holds New York State certifications in XXXX. She described her prior employment, which included a position as a paraprofessional in XXXX classroom in a neighboring public school. She was responsible for XXXX in both a XXXX and in XXXX. She described ongoing training that was provided by XXXX and by another XXXX, XXXX. She then became a student teacher in the District. Her responsibilities included XXXX. She also received training in XXXX and XXXX prior to coming to the District. While in the District, she observed XXXX in general education classes reading to the students about XXXX and explaining the XXXX program to the XXXX. She worked in a summer program in the District as a 1:1 aide for a student. She followed the student’s XXXX. On cross-examination, XXXX described the meanings of the terms XXXX and XXXX, and she described in detail how XXXX. On re-direct examination, she spoke about the training that she provides to paraprofessionals in XXXX (R. 628- 639, 701-707, 765-767, 808-809).

In the summer 2006, XXXX took a XXXX course presented by XXXX for in-service credit. She learned about XXXX, XXXX, and XXXX. In September 2006, she was hired to teach XXXX class for students in grades XXXX. She looked at XXXX. She also spoke about XXXX to XXXX. She described her discussions with XXXX in detail as to XXXX. On cross-examination, XXXX explained the meaning of a XXXX and the

XXXX (R. 640-645, 703, 804-806).

XXXX continued to teach XXXX classes in XXXX as of the time of her testimony in April 2010. Although she taught in different grade ranges, she always taught in the XXXX classes in the XXXX. During the 2009/10 school year, XXXX taught students in XXXX. On both direct and cross-examination, she described a typical day in her classroom in detail and the XXXX. On cross-examination, she testified that students are tested using XXXX and they are taught with the XXXX curriculum, which contains XXXX. She also testified regarding the XXXX approach used in the District (R. 645- 656, 709-711, 720-736, 770-772, 775-776, 807-808).

XXXX stated her familiarity with the Student. She conducted XXXX in January 2009. She observed XXXX in XXXX classroom setting at XXXX. She also spoke with XXXX teacher to review XXXX. The Student did not have XXXX. She had to XXXX (R. 656-665, 736-750, 772-773, 811-815; Ex. P-D).

XXXX attended the Student’s CSE meeting on April 30, 2009. She helped to create XXXX. On cross-examination, she clarified that XXXX were proposed at the June 19, 2009 CSE meeting. She described the participation of XXXX and XXXX at the meeting, confirming that the Student’s XXXX. She also confirmed that XXXX evaluations were requested and there was agreement for them to be conducted. XXXX attended the second CSE meeting and summarized discussions by XXXX about his report and XXXX about her observation at XXXX. She presented information about the Student’s XXXX. The Student’s XXXX. XXXX was asked to have goals in each area prepared for the next meeting. XXXX participated in the telephone conference meeting with District and XXXX staff where goals were reviewed and adjusted, in preparation for presentation to the CSE at the next scheduled meeting on June 19, 2009 (R. 666-677, 783-785).

XXXX also participated in the June 19, 2009 CSE meeting. Each proposed goal for the Student was reviewed and the Parent had the opportunity to participate in discussions about the goals. She also recalled that the SPAMs were reviewed individually at that meeting and that the Parent and XXXX staff participated in the discussions. XXXX was asked to enter the information into XXXX in preparation for the next CSE meeting, which she attended on July 21, 2009. Goals and SPAMs were again tweaked with the agreement of the whole CSE. She recalled the Parent asking for continued placement at XXXX and XXXX describing a placement for XXXX in the District involving XXXX. She understood her duties to involve XXXX. On cross-examination, XXXX stated that XXXX (R. 678-688, 724).

XXXX testified about the discussions that ensued about the Student coming into the XXXX when XXXX. She recalled the Parent expressing concern that XXXX. On cross-examination, XXXX described the XXXX in detail and the manner in which students are selected to participate. She also confirmed that the CSE discussed with the Parent that it was the intent of the CSE for the Student to XXXX (R. 688-691, 711- 717, 793, 795-797).

XXXX identified the other District staff who were scheduled to XXXX, and their experiences with XXXX. She also described other students in the XXXX program who XXXX. On cross-examination, she described in detail the manner in which other students receive XXXX (R. 691-695, 717-719).

On cross-examination and redirect examination, XXXX was asked about techniques that were used to respond to XXXX. She explained how XXXX (R. 760-765, 815-828).

XXXX described XXXX that would be used with the Student in XXXX transition to the District’s program, specifically with respect to XXXX, XXXX, and XXXX (R. 799-801, 829-831).

XXXX stated her opinion that the IEP accurately describes the Student’s needs and abilities, that the proposed goals reflect XXXX needs and abilities, and that the District’s recommended program was appropriate, and included XXXX (R. 696-699).

XXXX is a XXXX who is employed by the District. She is New York State certified as XXXX. She also has a XXXX. Her work experience prior to her employment with the District included working XXXX (R. 853-858, 996-997).

Also in her prior employment, XXXX worked in XXXX. Approximately 80% of the students were XXXX. She also trained staff to work with individuals who were beyond school-age and school-age children who went home at the end of the day. She received training from a tech person in the use of XXXX and she, in turn, trained staff. She also had experience dealing with students who XXXX. She also attended CSE meetings (R. 861-870, 995-996).

XXXX was employed by the District for 6 years at the time of her testimony. In her first year, she worked in XXXX. She also trained paraprofessionals to carry on with skills being taught by her and she followed XXXX. Beginning in her second year of employment, she was a XXXX. XXXX had 10 years experience in working with XXXX prior to coming to the District, and she received quarterly training with XXXX. She also attended various conferences on XXXX and XXXX (R. 870-873, 882-883, 990).

For the 2008/09 school year, XXXX worked in all XXXX classes, provided there was a student from in-District in the class. On cross-examination, she explained that the program became very popular and other public school districts sent their students to the program, and she was unable to service all of them. As a result, out-of-district students were served by contract providers. She had a caseload of approximately 8 students. Five of those students were XXXX. Tuition paying students were serviced by contract XXXX. She spent approximately 20 hours per week in the XXXX providing XXXX. During the 2009/10 school year, she had a caseload of between 20 to 22 students. She provided XXXX with students in the XXXX class. She followed student XXXX and she and a paraprofessional XXXX (R. 873-884, 946, 993-994, 999-1000).

XXXX stated her familiarity with the Student. XXXX was a member of the XXXX class to which she was assigned in her first year of employment with the District. She provided XXXX. She also conducted XXXX. On cross-examination, she stated that prior to conducting her evaluation, she reviewed XXXX’s report and an XXXX evaluation by XXXX. She described the Student’s XXXX as XXXX. On cross-examination, she testified that XXXX. On cross-examination, she stated that the Student was XXXX (R. 884-888, 962, 985-990, 1000).

XXXX stated that she had discussions with the Parent about XXXX, and the Parent did not feel that it would have been beneficial for XXXX to be there. She recalled that at some point the Parent removed XXXX from the program altogether, a decision with which she did not agree. The next time she saw the Student was on May 8, 2009, when she conducted XXXX (R. 888-890).

XXXX stated that she and XXXX, met the Student and XXXX mother at the front office of the XXXX. The XXXX greeted the Student, and XXXX. XXXX Parent XXXX. The four of them walked to the XXXX. The Student XXXX. XXXX discussed the evaluation process and the Student’s participation in it in detail. She was not familiar with the XXXX. On cross-examination, she stated that during the 2009/10 school year, she was trained in XXXX. The Student did not do well with XXXX. The Student did not XXXX but she did see XXXX, which were not disruptive to accomplishing the task at hand (R. 890-906, 955-961, 963; Ex. D-5).

During the evaluation, she spoke to the Parent about XXXX. XXXX described the Student as XXXX (R. 906-912).

XXXX stated that between the time that the Student was in XXXX (R. 912-914).

XXXX testified regarding her participation in the Student’s CSE meeting by telephone on May 14, 2009, her participation in a two-hour telephone conference call to discuss goals, and her participation at the June 19, 2009 CSE meeting where goals and SPAMs were reviewed one by one. She testified that the Parent and the representatives from XXXX had the opportunity to comment or question each goal. On cross-examination, she stated her recollection that the Parent expressed concern over XXXX. The XXXX staff concurred with the Parent. There was also discussion about a particular XXXX goal involving XXXX. The XXXX staff believed that XXXX should work on XXXX (R.914-925, 963-965, 967-968).

XXXX reviewed the XXXX goals contained in the finalized IEP and stated her opinion that they were appropriate because they targeted the specific areas of need that were most salient for the Student. She also testified that the remaining goals on the IEP were appropriate based on her participation in discussions at CSE meetings, and her observations during the Student’s evaluations that were conducted by XXXX and herself. She also stated her agreement with the CSE’s placement recommendation and the reasons why she believed it was appropriate. She stated that all of XXXX teachers were certified in special education; she was a XXXX; that the school XXXX; and XXXX (R. 925-930; Ex. D-17).

XXXX also testified that XXXX of the Student XXXX is the next logical step for XXXX, because XXXX. She concluded by stating that she did not hear or learn anything during the process of creating the Student’s IEP that led her to believe that the District would not be able to accommodate XXXX (R. 930-932).

On cross-examination, XXXX stated that she never observed the Student in XXXX placement at XXXX, but that XXXX and XXXX discussed their observations with her. She also stated that the students in XXXX class have XXXX (R. 932-935, 940- 946).

Also on cross-examination, XXXX testified that there were XXXX with XXXX who attended the XXXX program. There were no in-district XXXX students in the XXXX and XXXX programs, but they attend school in those buildings. She also stated that this Student is the only in-district student with XXXX who does not attend school in the District, and that the District never recommended a XXXX (R. 946-949).

XXXX is the founder and Chief Operating Officer of the XXXX School. Her responsibilities include overseeing all of the administrative procedures as well as staff and curriculum. She also oversees XXXX to be sure they are ethical and appropriately implemented. She hires and evaluates staff. She also participates in staff meetings, IEP meetings, and XXXX meetings. XXXX stated that she is a XXXX. XXXX stated in her report that XXXX was a XXXX, for which there are less classroom and examination requirements. She has a XXXX Degree in XXXX. She does not possess a degree in education. She has served on the XXXX since 2009, when the XXXX became an XXXX. She described her participation on other committees and boards (R. 1021-1028, 1031-1032, 1661, 2636-2637, 2841-2844; Ex. P-Q).

XXXX stated that the XXXX School opened in XXXX. In XXXX, XXXX founded the XXXX, which was a not-for-profit organization that educated XXXX. Its mission was to educate educators. She described the work of the Foundation (R. 1028-1031).

XXXX testified that her initial training for XXXX was through XXXX and XXXX. She was also trained by XXXX, XXXX, XXXX and XXXX, the XXXX (R. 1021-1033).

In XXXX, XXXX opened a small practice working with XXXX, known as XXXX, a for-profit enterprise. They coordinated with school districts to provide XXXX. They also provided consultation to school districts to set up and start XXXX, as well as development of XXXX and XXXX (R. 1034-1037).

XXXX stated that XXXX approached her and her business partner about opening up a school modeled on XXXX, and they agreed. The XXXX is a school that is XXXX. The XXXX is based on XXXX (R. 1038-1041, 1671-1672).

The XXXX is approved by the Board of Regents to operate as a private school. It is not on the Commissioner’s approved list. The XXXX is based on XXXX. The XXXX School has XXXX. There are XXXX (R. 1042-1049).

XXXX has XXXX (R.1050-1052).

XXXX staff is required to hold a Bachelors Degree and have a minimum of 2 years of experience working with children with XXXX. Knowledge or experience in XXXX is preferred but is not required because XXXX has in-house training. It is a 5 day training protocol. Candidates spend XXXX. They also observe the students they would potentially be working with in the classroom, and the clinical supervisor spends the 5 days of training with the candidate observing and working with the children and providing feedback. There is separate training on XXXX to be sure they are followed. Each staff member is required to XXXX (R. 1055-1058).

XXXX discussed specific strategies to teach students with XXXX, including XXXX. Some students have XXXX (R. 1058-1069).

XXXX explained XXXX’s admissions policy and the application process in detail. She also described the facility. It has XXXX (R. 1070-1080).

XXXX encourages its staff to attend XXXX (R. 1080-1085, 1510).

XXXX uses XXXX curriculum, which consists of XXXX (R. 1085-1091).

XXXX testified that the Student has attended the XXXX since XXXX. During the 2009/10 school year, there were XXXX. One of the teachers XXXX. On cross-examination, XXXX described the students with whom this Student was placed during the 2008/09 school year. One student had XXXX (R. 1091-1096, 1703-1706).

XXXX testified that the Student attended XXXX beginning in the XXXX school year. XXXX remained in the program until XXXX entered the XXXX School in XXXX. The Student was first assessed at XXXX and was XXXX She stated that for the 2007/08 and 2008/09 school years, the District’s CSE recommended placement for the Student at XXXX (R. 1096-1108).

XXXX testified that she attended several CSE meetings for the Student in preparation for the 2009/10 school year. On April 30, 2009, the District presented updated evaluations. XXXX presented XXXX XXXX evaluation. XXXX presented her observation. XXXX and XXXX reviewed the Student’s most recent progress reports in detail. XXXX described the progress reports in detail at the hearing. She stated that a XXXX may be discontinued or put on hold for various reasons. Some programs are put on hold due to XXXX. Other times XXXX (R. 1108-1136; Ex. P-E).

XXXX testified that she had provided the District with progress reports such as Exhibit P-E on multiple occasions prior to the 2009/10 school year, and the District never contacted her to discuss the reports or request any clarification about what was reported. At the close of the CSE meeting on April 30, 2009, she agreed to provide the District with XXXX. On cross-examination, XXXX estimated the length of the meeting as approximately 2 hours. XXXX described the contents of the Student’s XXXX in detail. She also described the concept of XXXX (R. 1138-1146, 1737-1738).

XXXX explained the concept of XXXX. On cross-examination, XXXX confirmed that none of the Student’s 5 teachers who instructed XXXX in August 2008 were the same instructors that XXXX had as of March 2009, 7 months later (R. 1146-1151, 1714- 1718; Exs. D-22, P-E).

XXXX testified regarding the CSE meeting that was held on May 14, 2009. She stated that evaluations in the areas of XXXX, XXXX, and XXXX were requested by the District’s attorney at the April 30 meeting and they were reviewed in detail at the May 14 meeting. In addition, XXXX and XXXX discussed their observation at XXXX and she and XXXX presented approximately 30 goals for the 2009/10 school year. XXXX and XXXX asked to add goals related to XXXX. There was also discussion at the meeting about having a phone conference to discuss additional goals, which included discussion about XXXX, which occurred on June 9, 2009. XXXX asked XXXX during the course of that telephone conference to prepare SPAMs for the Student, and she agreed. On cross-examination, XXXX stated that the CSE meeting held on May 14, 2009 lasted approximately 3 to 4 hours (R. 1164-1171, 1738-1739).

A third CSE meeting was scheduled for June 19, 2009. XXXX stated that an enormous amount of time was spent reviewing goals that were submitted by XXXX and XXXX. SPAMs were also reviewed and some were modified at that time, including the format. She stated that she, XXXX, and the Parent had concerns about XXXX. XXXX was asked to enter the Student’s goals and SPAMs into XXXX, as she had done in the 2008/09 school, and the fourth CSE meeting was scheduled for July 21, 2009. On cross-examination, XXXX stated that the June CSE meeting lasted between 3 and 4 hours. She stated that the July meeting lasted 2 to 3 hours or longer (R. 1172-1177, 1750-1751, 1756).

XXXX was advised that XXXX and XXXX tweaked some of the IEP goals in XXXX and she received a copy of the revised document prior to the meeting. She noted changes in the criteria for mastery and benchmarks that were not discussed with her or the Parent. During the meeting, XXXX, XXXX, and the Parent went to the back of the room to review and confirm that the changes were in line with what was originally agreed upon. The parties agreed to make the necessary changes so that all were satisfied with the goals (R. 1177-1185, 1752-1755; Ex. D-12).

The parties then heard from XXXX with respect to their proposed placement in- District. XXXX stated that she consulted with XXXX in the hypothetical about XXXX. XXXX stated that XXXX would have a program that was similar to the program XXXX had at XXXX. She stated that XXXX would have had XXXX. XXXX testified that, when asked to participate in a transition plan, the Parent responded that it was very difficult to participate in a transition meeting when she was not sure what the actual placement offer was. She asked for more details about the program and that she would be available for a transition meeting if she felt the placement was appropriate. However, XXXX also stated that XXXX described the placement offer; that the offer was “pretty much put on the table,” and the Parent expressed her concerns about the appropriateness and asked for a written description of the program so that she could discuss it with her husband, which the District agreed to provide. On cross-examination, XXXX testified that she has not seen the XXXX at the District; that she did not see the classroom that was dedicated for the Student’s use in the XXXX program; that she was not aware that the District’s XXXX classrooms are staffed with 2 certified special education teachers; and she did not remember being advised that the Student’s

XXXX (R. 1185-1188, 1192-1193, 1759-1760).

XXXX testified that the District’s proposed program was not similar to the Student’s program at XXXX, where XXXX is placed with XXXX other students. However, as of the 2008/09 school year, XXXX was unable to XXXX. She stated that XXXX asked at the CSE meeting whether the Student would be able to XXXX, and XXXX said not at that time. She also said that XXXX said the Student would be in a

XXXX (R. 1188-1190).

XXXX also testified that the Parent did not refuse to discuss a transition plan, but she did not want to discuss it prior to making a determination as to whether the proposed program was appropriate. XXXX said that after the July 21 meeting, she was not contacted by the District in regard to a transition plan for the Student (R. 1194- 1195).

XXXX reviewed the District’s transition plan and stated that the timing contained in the plan was not possible because of XXXX staff vacations. In addition, she stated that given the small program at XXXX, her staff would not be available leave the program to go to the District to work with the Student. On cross-examination, XXXX confirmed that XXXX has had only 1 student transition out of its program; that there was a very short transitional period, taking a day or two; that XXXX staff accompanied the Student to the new placement outside of the hours of both schools’ work days; and their purpose was to XXXX. She also stated that there was no written transition plan for that student, but there was verbal communication to provide support. She also stated that the Student, in her opinion, would require more than 24 or 48 hours to transition from the XXXX program. She expressed further concern with the transition process because XXXX curriculum is copyrighted and they were not permitted by contract to disclose specific documents. On cross-examination, XXXX confirmed that she never communicated that concern to the District; she clarified that it was only the copying of the programs by the District, and not the sharing of the programming, that would be the issue; and in addition, XXXX’s teaching techniques and strategies are not copyrighted. She also confirmed that student service providers who are not employed by XXXX or XXXX are not asked to sign a confidentiality agreement when reviewing a student’s program materials, even though the materials are copyrighted by XXXX. She was also concerned about the timing as to when the Student would be leaving XXXX, because she would have to terminate one staff member or find another student to fill XXXX spot.

On cross-examination, XXXX stated that she could not use that extra staff person to help facilitate the Student’s transition into the District’s program (R. 1196-1198, 1678- 1680, 1686-1688, 1761-1768; Ex. D-16).

XXXX stated that the daily schedule attached to the District’s transition plan was very similar to XXXX’s. She also stated that there are XXXX. She described it as a step backwards. She saw opportunities for the Student to enter the XXXX. However, she stated that there were no XXXX put in place at the meeting, as it was described in the written program description. On cross-examination, XXXX stated that a XXXX could be drafted by XXXX and most XXXX’s, including XXXX (R. 1198-1203, 1770-1771; Exs. D-14, D-16).

XXXX stated her disagreement with the District’s XXXX program, in that it was XXXX. She also stated her concern that XXXX. On cross-examination, XXXX acknowledged that the scheduled was just a proposal, and that it could be modified (R. 1206-1212, 1768-1769, 3347; Ex. D-14).

XXXX was concerned about the Student’s XXXX (R. 1216-1218, 1771-1772).

XXXX stated that she was not in agreement with the goals at the end of the July 21 meeting, because of her belief that the Student required XXXX. She also stated that the Parent discussed concerns at the July 21 meeting about the Student being XXXX (R. 1218-1220).

XXXX reviewed the CSE meeting minutes and stated that there was some information that was missing, specifically that there was no indication that XXXX was requested from XXXX; that it did not reflect the request for evaluations in the areas of XXXX; that XXXX goals and objectives were presented by herself and XXXX; that there was a request for creation of goals related to XXXX; that XXXX disagreed that XXXX observed XXXX in the Student during her observation at XXXX, and with her opinion that the program was based on XXXX; and that there was no discussion of a transition plan at the July 21 meeting (R. 1221-1223, 1228; Ex. D-17).

XXXX stated her belief that XXXX (R. 1225-1227; Ex. P-E).

On cross-examination, XXXX stated that since 2004, the Parents’ attorney represented approximately 6 students who attended either XXXX or XXXX. She also stated that her relationship with the Parents’ attorney is both professional and personal in nature (R. 1778-1781).

On redirect examination, XXXX stated that the Student made significant gains during the 2008/09 school year. She stated that XXXX. XXXX mastered one XXXX (R.1818-1827, 1831-1832; Ex. P-E).

Also on redirect examination, XXXX stated that no one from the District asked her to contact the Parent to participate in the teleconference that was held between XXXX and District staff on June 9; that she made no comment regarding why the Parent was not at the teleconference; that the District never contacted her or XXXX to discuss any kind of transition plan; that the District never sent her a copy of the transition plan; and that during her presentation of the District’s proposed program, she never discussed any type of XXXX (R. 1828-1830).

XXXX testified regarding her educational background and her prior work experience. She obtained a Masters Degree in XXXX. She received her Ph.D. in XXXX. At the time of her testimony, she was provisionally certified in XXXX and she was a licensed XXXX. She had provisional New York State certification in special education, which had lapsed by the time of her testimony. XXXX’s doctoral program focused on XXXX. She stated that XXXX focuses on XXXX. XXXX are conducted through XXXX (R. 1237-1245).

XXXX testified regarding her experiences in working with XXXX. As part of her Masters program, she worked with XXXX (R. 1237-1240, 1243, 1245-1246, 1334-1336).

XXXX is the XXXX at XXXX. On cross-examination, she testified that she never served in the capacities of XXXX or XXXX at XXXX, and she never taught learners using the XXXX. She began her employment with XXXX in September 2008. She provides XXXX (R. 1247-1249, 1495-1496, 1643-1645).

XXXX described the XXXX and its relation to XXXX. She also stated that XXXX (R. 1253-1260).

XXXX described XXXX as XXXX. Modifications are made as needed (R. 1260- 1261).

XXXX’s curriculum is based on XXXX. On cross-examination, XXXX stated that XXXX makes modifications to the XXXX (R. 1261-1263, 1566-1569, 1641-1642).

XXXX described the method in which XXXX. XXXX which may either be in a XXXX or in a XXXX. XXXX refers to XXXX. XXXX involves XXXX (R. 1263-1268).

XXXX spoke about the development of curriculum for XXXX (R. 1269-1274).

When a student enters XXXX (R. 1274- 1278).

XXXX explained XXXX (R. 1279-1280, 1497-1498).

XXXX defined XXXX as XXXX (R. 1281-1286).

XXXX explained how teaching is conducted in the classrooms at XXXX and the purposes of XXXX (R. 1287-1296).

XXXX are responsible for XXXX. On cross-examination, XXXX clarified that XXXX did not start using XXXX until the summer 2009. She also described the process by which XXXX are trained, using XXXX (R. 1297-1309, 1514).

XXXX is measured with criteria of XXXX (R. 1309-1313).

Parents receive XXXX (R. 1313-1314, 1533-1553, 3447-3448, 3352-3353; Ex. D- 21).

XXXX described the Student as XXXX (R. 1318-1319, 1336-1337, 1524-1525).

XXXX curriculum related to XXXX (R. 1319-1323, 1336-1337).

XXXX stated that the Student was XXXX (R. 1323-1327, 1336-1337, 1343-1344).

During the 2008/09 school year, XXXX (R. 1343-1347).

XXXX reviewed the Student’s progress report dated March 25, 2009 in detail. She confirmed that the document, in isolation, does not tell the reader which steps the Student has mastered. Reference must be made to XXXX. On cross-examination, XXXX confirmed that XXXX (R. 1364-1427, 1598-1601, 1604-1606, 1636-1638-1639, 1641; Ex. P-E).

XXXX testified regarding her participation in two CSE meetings held on May 14 and June 19, 2009. She stated that on May 14, the CSE reviewed XXXX evaluation results and the XXXX goals, and the District wanted to add goals relating to XXXX. A phone conversation occurred on June 9 to review the District’s goals, at the request of the District’s attorney, in which she also participated. The District sent proposed goals to XXXX by facsimile transmission prior to the June 9 teleconference. XXXX stated that the Parent did not participate in the teleconference because she was not aware of it. On cross-examination, XXXX confirmed that the Parent was present at the CSE meeting when the suggestion was made for a teleconference to discuss the Student’s goals. During the conference, XXXX reviewed XXXX. XXXX and XXXX participated in reviewing the proposed goals and, after discussion, one of the two XXXX goals, one of the XXXX goals, and the XXXX goal, were adopted. Other goals were modified. In addition, a modified XXXX was developed and placed into the IEP. The XXXX reviewed the XXXX goals. XXXX then requested XXXX to draft SPAMs for the next IEP meeting. XXXX stated that the draft goals were reviewed twice, once during the teleconference in which the Parent was not present, and a second time at the CSE meeting with the Parent present, on June 19, 2009. The parties discussed the Parent’s and XXXX’s concern that there were XXXX, and stated that the XXXX. XXXX staff said they would include as many of the goals in XXXX curriculum as possible (R. 1428-1457, 1611- 1613, 1617-1619; Exs. D-17, P-F).

At the June 19 CSE meeting, XXXX stated that XXXX presented the SPAMs that were requested by the District. She stated that XXXX mentioned that the format needed to be changed as they needed to separate abilities and needs. Each of the SPAMs were reviewed and categorized at the CSE meeting (R. 1455-1457).

XXXX reviewed the minutes of the May 14 CSE meeting and stated that XXXX request for XXXX to draft the SPAMs was made at the June 9 teleconference, and not at the May 14 CSE meeting. Moreover, the minutes do not reflect the fact that the XXXX goals were reviewed and agreed upon at the May 14 meeting (R. 1458-1462; Ex. D-17).

XXXX stated her disagreement with XXXX opinions that XXXX (R.1463-1465).

XXXX reviewed the minutes of the June 19 CSE meeting and stated that she disagreed that the SPAMs needed to be developed together. However, she agreed that XXXX prepared draft SPAMs that were reviewed by all parties at the June 19 CSE meeting. She did not agree that the CSE worked together with the Parent to develop SPAMs, goals and objectives, because they were developed by XXXX and reviewed at the CSE meeting, where the Parent was given an opportunity to participate in the process, and she did (R. 1465-1468).

XXXX stated her disagreement with the CSE’s recommendations for the 2009/10 school year. She stated her opinion that it was XXXX. She was also concerned about the District’s transition plan. She did not believe that it was feasible. XXXX could not spare a staff member just to train the District’s staff, given their responsibilities to other students in the program. Moreover, XXXX curriculum could not be shared with District staff due to copyright concerns. She also believed that the Student’s XXXX at XXXX might not be useful to XXXX in the District’s setting, since XXXX. On cross-examination, XXXX agreed that the Student had the same XXXX going back to at least September 2008. She also stated that XXXX is closed and staff is not available at the end of August, but if the transition plan began at the start of the school, staff vacations would not have been an issue (R. 1470-1474, 1626-1627, 1630).

On cross-examination, XXXX stated that she became aware of the District’s recommendations through XXXX, and she did not speak with anyone in the District about the program recommendations. She did not recall whether XXXX told her that part of the District’s proposal was its intent to XXXX. XXXX confirmed that she never observed the District’s XXXX and she never discussed the program with any of the District’s teachers or with XXXX. She also confirmed that she was unaware that each of the District’s XXXX staffed by 2 certified special education teachers who were trained in educating children with XXXX. On redirect examination, XXXX confirmed that XXXX never discussed the XXXX or presented it as a proposed placement for the Student in her presence (R. 1623-1626, 1633-1634, 1636).

XXXX also expressed disagreement with the XXXX drafted by the District, in that XXXX. XXXX confirmed on rebuttal that XXXX was a draft and subject to change. She stated that when the Student started in the program, they would have seen how long it took to XXXX. On cross-examination, XXXX stated her awareness that the XXXX was a draft and that staff would have realized that XXXX, if in fact that was the case. She also stated that in XXXX. XXXX has never observed any program in the District, and she is not familiar with any of the teaching staff other than XXXX (R. 1474-1484, 1632- 1633, 3348; Ex. D-14).

On cross-examination, XXXX stated that XXXX students started at XXXX as of the day it opened its doors. Those students continue to attend XXXX to date. Other than one student who transferred to the XXXX program, no student who began school at XXXX had left, through June 2009. On redirect examination, XXXX identified the XXXX program as a State-approved XXXX school that services XXXX. It does not provide XXXX. XXXX did not know how many of the instructors who worked with the Student when he first entered the program are still employed by XXXX (R. 1511-1512, 1652).

XXXX described her educational background. She earned a Bachelors Degree in XXXX. She earned her Masters Degree in XXXX. She conducted research with a certified special education teacher on XXXX. She completed 2 externships. The first was in a private school for children with XXXX. She worked directly with students and trained with a supervisor in performing procedures such as XXXX. The second externship involved XXXX. She received her XXXX in August 2008 (R. 1845-1846).

XXXX also described her professional employment relating to the field of XXXX and XXXX. She worked in a XXXX. Her job responsibilities included XXXX (R. 1847- 1849).

XXXX took a break from employment to complete her practicum and externship. Since the summer 2005 she worked in XXXX. She began working at XXXX in March 2009 as an instructor. Her responsibilities were XXXX (R. 1850-1851).

XXXX attended workshops for training in XXXX for a number of years to stay fluent and to maintain her XXXX. She described her training at XXXX as very intensive. She was trained mainly by XXXX (R. 1851-1854).

XXXX described her typical work day. She worked in XXXX (R. 1855-1858).

XXXX was assigned as the Student’s supervisor. She was responsible for XXXX (R. 1858-1859).

XXXX described the Student as XXXX. However, she felt challenged by working with XXXX (R. 1859-1862).

XXXX stated that the Student’s XXXX (R. 1866-1868).

XXXX described the specific XXXX that she worked on with the Student starting in the beginning of March 2009, including XXXX (R. 1872-1878, 1887; Ex. P-E).

XXXX also worked on XXXX (R. 1887-1894; Ex. P-E).

XXXX also worked on XXXX (R. 1894-1896; Ex. P-E).

XXXX testified regarding the Student’s progress on XXXX. On cross-examination, XXXX stated her opinion that XXXX (R. 1903-1904, 1971-1974).

XXXX stated that at the end of the 2008/09 school year she was moved to another classroom, and that as of September 2009 she was no longer employed in the capacity as XXXX. She became a XXXX. Her responsibilities were to XXXX (R. 1906- 1919).

XXXX testified regarding the Student’s progress during the 2009/10 school year, as XXXX supervisor. She stated that XXXX (R. 1922-1924, 3339-3341).

XXXX testified regarding the District’s transition plan. She stated that she did not know how the Student would react to week 1 of the plan, involving XXXX. On cross-examination, XXXX stated that prior to her employment at XXXX, the Student was placed in class #2. Upon her employment in March 2009, the Student was moved to class #3. During the summer 2009, the Student was moved to class #1. She also confirmed that XXXX instructors switched each time XXXX class was moved, and there were at least 2 instructors who were employed for only a few weeks or days. She stated that she never considered whether the numerous staff changes made during the 2008/09 school year and during the summer 2009 contributed to the XXXX (R. 1942- 1944, 1998-2004, 2020; Ex. D-16).

XXXX also testified to her opinion that it would be inappropriate to implement the Student’s XXXX (R. 1944-1947, 1987-1988, 2028-2029, 2046-2047, 2162-2163, 3338- 3339; Ex. D-16).

XXXX also stated her opinion regarding elements of the XXXX. She believed that some of the items would be more appropriately XXXX. On cross-examination, she agreed that the XXXX was a draft, and that it could be modified with respect to each of the issues she raised that, in her opinion, made the XXXX inappropriate. She also stated her disagreement with placing the Student in XXXX. On cross-examination, she testified that she never observed the District’s recommended program for the Student; that she never spoke to anyone in the District about the program; and she never observed any of the District’s programs. She also stated that she was unaware that

XXXX (R. 1947-1957, 1982-1983, 2028, 2032-2033).

XXXX also stated her opinion that the District’s recommended program would XXXX. She believes that the XXXX program is appropriate, because XXXX is in an environment where there is XXXX (R. 1957-1959).

XXXX, is a licensed XXXX in New York State. He also holds a XXXX. He testified in detail regarding his education, work history, professional affiliations, and his publications and presentations. He has been in the fields of XXXX and XXXX since the late 1980s. XXXX also developed a private practice in 1994, called XXXX, in which he consulted with public school district staff to develop their XXXX and designing teaching and XXXX programs for students. He also works with private families, charitable institutions, and school and clinic programs (R. 2054-2092; Ex. P-G).

XXXX stated his familiarity with the Student. In XXXX, the Parent contracted privately with him to provide an evaluation and to look at the XXXX program that was in place at that time. As of XXXX, XXXX described the Student as having been diagnosed XXXX. He had XXXX. XXXX provided standardized testing two or three times, and he has consulted with the Parents as needed. He has also observed the Student in XXXX school placement in XXXX in the District, where he had a XXXX. He stated that the procedure was being carried out well. He had issues with the XXXX (R. 2092-2096).

XXXX also observed the Student in XXXX during the XXXX school year. He observed behaviors XXXX. He also consulted periodically with the Parents when the Student was XXXX (R. 2101-2107).

XXXX saw the Student in March 2009, at which time he conducted a standardized evaluation and observed the Student in XXXX as well as at XXXX. He described the Student’s test results and his observations. On the XXXX (R. 2108-2114; Ex. D-3).

XXXX described his observation of the Student in XXXX. The Student XXXX (R. 2116-2117).

XXXX also described his observation of the Student at XXXX. XXXX was working with XXXX. XXXX partook in XXXX. He described the Student’s program at XXXX as seeming “adequate for XXXX needs, appropriate” (R. 2117-2120).

XXXX stated that the Student has been diagnosed and treated for XXXX. He testified that it is exceptionally difficult to determine XXXX (R. 2120-2123).

XXXX reviewed his recommendations for the Student, which included XXXX (R. 2123-2126; Ex. D-3).

XXXX also recommended that the Student continue to work on XXXX (R. 2126- 2132; Ex. D-3).

XXXX testified regarding his observations of the Student at XXXX that occurred on the day that District staff was also observing. He stated his disagreement with XXXX opinion that XXXX. He also did not agree with XXXX opinion that the Student’s programming at XXXX XXXX (R. 2133-2140; Ex. D-2).

XXXX also commented on XXXX opinion that XXXX (R. 2141; Ex. D-2).

XXXX testified that he attended two of the Student’s CSE meetings that were held in preparation for the 2009/10 school year. He recalled that material was reviewed, the Student’s progress toward XXXX goals was reviewed, his evaluation and the school observation were reviewed, and there were discussions about a proposed program. He specifically remembered there was a discussion of a plan to have the Student XXXX and that he believed the placement was a step backwards in that XXXX. He said there was a great deal of discussion back and forth about the appropriateness of the program (R. 2148-2150).

XXXX stated concerns he expressed about the proposed placement at the CSE. He thought the Student might not be able to XXXX (R. 2150-2151).

XXXX reviewed the District’s proposed transition plan. He stated that there were no contingencies in the plan based on XXXX. He also said he would want more specifics regarding XXXX, and that there was no XXXX. He also stated that he had not observed any of the District’s programs since the XXXX school year (R. 2152-2158; Ex. D-16).

With respect to the use by the District of the Student’s XXXX, XXXX stated that it would be difficult to do, in that XXXX (R. 2162-2163).

XXXX is certified in New York State in XXXX, XXXX, and as XXXX. She also holds provisional certification in XXXX, and she is a XXXX. She described her work history, which included XXXX, a direct service provider of XXXX services, and as a director of an XXXX program. On cross-examination, she stated that she was a XXXX. She is currently in private practice as an independent contractor and consultant and she provides educational consultation and XXXX supervision to staff in school districts and to families. Her business is called XXXX. On cross-examination, XXXX stated that she testifies at impartial hearings once or twice a month, and that she has testified in 6 or 7 cases involving the Parent’s legal counsel over the last 5 years. She also testifies for other parents or attorneys or advocates as part of her consulting practice (R. 2361- 2369, 2372-2380, 2605-2614, 2616-2620).

XXXX stated her familiarity with the Student. She observed XXXX 3 times in XXXX placement at XXXX. The first observation occurred on May 28, 2008. XXXX observed the Student for 1-1/2 hours and conducted a XXXX. On cross-examination, XXXX indicated that she did not begin her observation of the Student until 10:48 a.m., even though she arrived at 10:15 a.m. She described XXXX as XXXX (R. 2380, 2382, 2385-2387, 2696; Ex. P-Q).

XXXX described the XXXX School as a XXXX instructional program that follows XXXX. She was not familiar with the nature of the staff training at XXXX. XXXX stated her opinion that, as of May 2008, XXXX was a high quality program, based on her observation of the instructors presenting instruction in XXXX. On cross-examination, XXXX confirmed that XXXX instructors XXXX (R. 2387-2388, 2395-2396, 2398-2401, 2633-2636, 2655).

XXXX testified regarding the XXXX (R. 2401-2404, 2406, 2408-2409, 2698-2699; Ex. P-Q).

XXXX also observed the Student at XXXX on two occasions during the 2009/10 school year. She stated that she had no direct contact with the Student between May 28, 2008 and when she observed XXXX in March 2010. XXXX also observed the District’s proposed program once prior to writing her report. The first observation at XXXX occurred on March 15, 2010, and lasted approximately 1-1/2 hours. She observed the XXXX. On cross-examination, XXXX confirmed that XXXX (R. 2413- 2415, 2528-2531, 2717-2719, 2731-2740; Ex. P-R).

XXXX reviewed the Student’s XXXX. XXXX was XXXX. She described the

XXXX (R. 2534, 2536, 2538-2539).

XXXX also observed the Student at XXXX on April 19, 2010, at the same time as District staff. On cross-examination, XXXX confirmed that the observation did not start until 9:47 a.m. The Student did not appear XXXX. On cross-examination, XXXX stated that all of the Student’s instruction that she observed at XXXX was XXXX (R. 2539- 2540, 2544, 2550-2551, 2713-2715, 2732-2735).

On May 17, 2010, XXXX observed the District’s proposed program at XXXX. She observed the proposed classroom in which the Student would have been placed XXXX. She noted that XXXX. On cross-examination, XXXX confirmed that she was told during her observation that XXXX. In addition, although she noted in her report that the classroom was XXXX she did not note the fact that the room was not being used as a classroom during the 2009/10 school year, and that the room would have been decorated as a classroom had the Student attended the District’s program. XXXX confirmed on rebuttal that had the Parents determined to place the Student in the District, XXXX would have set the room up as a classroom. A wish list of supplies and materials was put together. XXXX also walked around the school and saw a carpeted room, which she assumed was the XXXX. She also viewed XXXX’s class, and saw XXXX. On cross-examination, XXXX stated that she knew that the District’s XXXX classes contained two certified special education teachers, but that she did not list that fact in her report (R. 2564-2567, 2760-2762, 2763-2769, 3326-3327; Ex. P-R).

XXXX stated that she and XXXX discussed the conduct of XXXX in her classroom. She was told that XXXX. On rebuttal, XXXX confirmed that. XXXX also stated that a XXXX must also be done, where XXXX. On cross-examination, she stated that she never spoke with XXXX about XXXX. On rebuttal, XXXX discussed the manner in which she XXXX in detail. She stated that she had been a XXXX at the District for 4 years at the time of her testimony, that she has XXXXs, and she has XXXX. XXXX also never asked about the curriculum that is used in the District’s XXXX classrooms. On re-cross examination, XXXX stated her knowledge that the District staff used XXXX instruction and XXXX, as well as XXXX. She also stated that during the course of her observation, she did not ask the teacher XXXX. On rebuttal, XXXX confirmed that the District XXXX, in addition to XXXX (R. 2567-2570, 2747-2748, 2771- 2772, 2884-2885, 2891-2892, 3328-3330, 3333-3338).

XXXX noted that the size of the XXXX was XXXX, and that it is often difficult for XXXX to XXXX. She also stated that XXXX said that instruction was presented in XXXX. On rebuttal, XXXX stated that XXXX occur where XXXX. XXXX also testified that XXXX reported that they XXXX (R. 2556-2557, 2573-2577, 2751-2755, 3330-3333).

XXXX stated that she was not that involved with the XXXX during her observation, but that she did not see XXXX. She was shown a list of XXXX. She also reviewed the Student’s XXXX and agreed that it was a projection of what XXXX might be able to do, which would be adjusted based on XXXX needs and abilities (R. 2577- 2580, 2755-2756-2760, 2799-2803, 2913; Ex. D-14).

XXXX stated her opinion that it would be inappropriate for the Student to XXXX (R. 2580-2583, 2633, 2772-2775).

XXXX stated her disagreement with placing the Student in XXXX (R. 2583-2586, 2795-2799, 2861-2862).

XXXX reviewed the XXXX and stated her opinion that XXXX (R. 2586-2588, 2812-2817; Ex. D-13).

XXXX stated her opinion that the District’s recommended placement was inappropriate, in that it was XXXX. XXXX also stated her opinion that the District’s transition plan was impractical and difficult to accomplish, given the distance between the schools, and it would be an unproductive use of the XXXX staff’s time to travel 2 hours round trip to the District to implement the transition plan. However, she did not see the Student’s travel time to XXXX from XXXX home as unproductive. On cross-examination, XXXX acknowledged that the distance between the two schools is an hour by car; that distance would always be an issue; that she was not aware any student who transitioned from XXXX back to their home school; and that she would not be surprised to learn that there had never been a child attending XXXX who was transitioned back into his or her home school. She also stated her belief that, given the teachers’ XXXX (R. 2591, 2593-2594, 2599-2602, 2775-2782, 2803-2805, 2820-2826, 2883-2884, 2893- 2895, 2909-2911; Exs. D-14, D-16).

XXXX also stated her opinion that the XXXX program was an appropriate placement for the Student, in that XXXX was making progress, that XXXX. On recross examination, XXXX acknowledged that although the Student has been placed at XXXX since 2007, as of the time of her visit in 2010, XXXX did not have any measure of success in XXXX. On cross-examination, XXXX acknowledged that she did not ascertain the credentials of any of the District’s staff during the course of her evaluation or at any other time (R. 2603, 2740-2746, 2910).

On cross-examination, XXXX agreed that the Student required a program that has XXXX (R. 2702-2703, 2827-2829).

XXXX is certified in XXXX, as well as in XXXX. At the time of her testimony, she was pending certification as XXXX. On cross-examination, she stated that she has not had training in XXXX, XXXX, or XXXX in a university setting. She took the 3 hour State required XXXX course, and she participated in a XXXX training on XXXX. Her first employment was with XXX, where she started as a student teacher and continued as a teaching assistant. Her responsibilities as a teaching assistant included XXXX. Almost all of the students in her class were diagnosed with XXXX (R. 3262-3265, 3304-3305, 3313).

XXXX was trained in the different types of XXXX. XXXX worked at XXXX for two years (R. 3265-3266).

XXXX began her employment in the District in the summer 2006 as a paraprofessional for one year. She XXXX. Training was ongoing throughout the year and done on a weekly basis with XXXX. She was then employed by the District as a teacher assistant for one year. She stated that the training was a little more in depth, and included XXXX. Since that time, she has been employed as a teacher in the XXXX classrooms. Her job duties include XXXX. Almost all of her students over the past 3 years were diagnosed with XXXX. XXXX testified that training is continuous; that XXXX is in the classroom every day; that there are daily and monthly consultations; weekly meetings for the XXXX teachers and staff; and that there is constant communication among staff when questions or problems arise. On cross-examination, XXXX stated that she has weekly scheduled training with XXXX which occurred during her prep time, for 42 minutes. During the 2009/10 school year, XXXX was in her classroom every other day, depending on the needs of the teacher and the students. On rebuttal, XXXX confirmed that during the 2009/10 school year, she offered an after school session for general education teachers on XXXX, and she and the XXXX teachers XXXX. She also confirmed that she was in XXXX’s class at least every other day, with the exception of September through November 1, 2009, when she was on maternity leave. When she returned, she was scheduled to work as the XXXX 10 hours per week, but she worked more frequently, sometimes putting in 15 or 20 hours per week (R. 3266-3270, 3301, 3312, 3351-3352, 3357-3360).

XXXX stated her familiarity with the Student, in that XXXX was supposed to attend school in the District for the 2009/10 school year, in a classroom near to hers. On cross-examination, she stated that her classroom is located upstairs from the Student’s proposed classroom. XXXX also stated that some of her students were XXXX and that, when he was ready, he would XXXX. On cross-examination, XXXX stated that she was not aware of the details surrounding XXXX or XXXX. XXXX testified on rebuttal that she XXXX. XXXX stated that she was present in her classroom when XXXX came to observe. XXXX observed for about 20-30 minutes; she asked XXXX about her work experience; she asked about XXXX; she commented that the classroom was very calm and that the students were working very nicely; she asked about XXXX in the classroom; and about the different XXXX. XXXX responded that various XXXX based on each child’s individual needs; that XXXX was conducted to determine where to begin; that they conducted XXXX, which they referred to as XXXX, which has the same meaning as XXXX; that XXXX, but XXXX; that they briefly discussed XXXX; and that they spoke briefly about XXXX. There were no XXXX students in her class during the 2009/10 school year. On cross-examination, XXXX stated that there were XXXX in XXXX’s class. XXXX stated that students work on XXXX. XXXX saw that one of the students in the class XXXX, and asked about her training in its use. XXXX responded that XXXX. XXXX also asked her about the staff which conducts XXXXs. XXXX stated that XXXX; that XXXX observes the students, looks at XXXX, and XXXX; and the team meets with the parent to develop an XXXX and XXXX. On cross-examination, she clarified that she has never drafted a XXXX, but she has XXXX and has given input. She also testified that XXXX, with input from XXXX (R. 3270-3275, 3284, 3286-3287, 3290-3294, 3295-3297, 3303, 3324, 3348-3350).

XXXX described the configuration of her classroom and its décor during the 2009/10 school year. She also discussed XXXX for her students. All were XXXX. On cross-examination, she stated that some of her students were XXXX. Each student was XXXX. XXXX stated that there were times when students XXXX. Staff XXXX. She also stated that XXXX (R. 3275-3282, 3313-3324).

XXXX stated her understanding that the Student was going to be XXXX. She was aware of the XXXX (R. 3282-3285).

XXXX stated that students in her class XXXX (R. 3284-3285).

XXXX stated that she has had a child come into her program who was new. She stated that XXXX (R. 3283-3284).

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 district are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. c. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.XXXXY. 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.XXXXY. 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 other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.XXXXY. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.XXXXY.

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 proper inquiry as to the appropriateness of an IEP is whether the IEP was reasonably calculated to confer educational benefit at the time the CSE devised the IEP. Antonaccio v. Board of Education of the Arlington Central School District, et. al., 281 F.Supp.2d 710, 724-725 (S.XXXXY. 2003); Application of the Board of Education of Harrison Central School District, Appeal No. 04-034.

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.XXXXY. 2006); Board of Education of Poughkeepsie City School District v. O’Shea, 353 F.Supp.2d 449, 454 (S.XXXXY. 2005) [quoting Walczak, 142 F.3d 119, 122 (2d Cir. 1988)].

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

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].

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 parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

No one factor is necessarily dispositive in determining whether 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 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 reasonable 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.XXXXY. 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.

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)]. This 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 evidence shows that the CSE had before it a number of evaluations and observations which were considered, together with information and documents provided by District staff, XXXX staff, the Parent, and XXXX during the course of 4 CSE meetings, which enabled it to accurately set forth the Student’s needs in the IEP. The CSE considered the results of a XXXXEvaluation, which included observations in the Student’s home and at XXXX on March 10, 2009, which was presented by XXXX at the CSE meeting held on April 30, 2009 (Exs. D-3, D-17); it considered a XXXX Evaluation conducted by the XXXX on September 4, 2008, and reviewed by the CSE at its meeting on April 30, 2009 (Exs. D-4, D-17); it considered the results of a Speech and Language Evaluation conducted by XXXX on May 8, 2009, and presented by XXXX at the CSE meeting held on May 14, 2009 (Exs. D-5, D-17); it considered the results of an Occupational Therapy Evaluation report by XXXX, conducted simultaneously with XXXX’s evaluation, on May 8, 2009, which was presented by XXXX at the CSE meeting held on May 14, 2009 (Exs. D-6, D-17); it considered the results of a Physical Therapy Evaluation conducted by XXXX in the Student’s home on May 8, 2009, and presented by XXXX at the CSE meeting held on May 14, 2009 (Exs. D-7, D-17); it considered a classroom observation conducted by XXXX and XXXX on April 27, 2009, which they presented at the CSE meeting held on April 30, 2009 (Exs. D-2, D-17); it considered the results of a Neurological Evaluation conducted by XXXX on July 17, 2007, at the CSE meeting held on April 30, 2009 (Exs. P-T, D-17); and it considered a progress report from XXXX, which was presented by XXXX at the CSE meeting held on April 30, 2009 (Exs. D-17, P-E). The evidence also shows that there was input from XXXX during the CSE process and during the June 9 teleconference (R. 1428-1457, 1611-1613, 1617- 1619). The IEP references the evaluations in the body of the document. There is specific reference to the medications the Student was taking to treat his XXXX disorder in the Medical Alerts portion of the IEP (Ex. D-17).

The evidence shows that XXXX was asked by the District to prepare draft present levels of performance, SPAMS, and goals for the CSE’s consideration, in light of the fact that the Student attended XXXX commencing June 2004, and XXXX commencing September 2007 through the then current time. XXXX staff was in the best position to identify the Student’s needs, since he was educated within the confines of the for-profit and not-for-profit ventures undertaken by XXXX, since his kindergarten year. The documentary evidence shows that XXXX complied with the CSE’s requests, and that the CSE collaborated with XXXX staff and the Parent during the course of the CSE meetings held on June 19, 2009 and July 21, 2009 to review and refine the SPAMs and goals. The evidence also shows that the District prepared draft goals for the Student which were reviewed by the parties. District staff and XXXX representatives also collaborated during the course of a 2-hour teleconference held on June 9, 2009 to refine the Student’s needs and abilities and goals so that they could be entered into XXXX. Although the Parent did not participate in the June 9, 2009 teleconference, the evidence shows that she reviewed what occurred at the teleconference with XXXX at XXXX later in the day, and that she fully participated in the CSE meetings that followed on June 19 and July 21, where the SPAMs and goals and objectives were further refined. The Parent testified that she did not ask the District to schedule another teleconference and she was not that upset about it, having had access to the goals and having had an opportunity to participate in getting the information together (R. 2505-2509, 3203-3204, 3047; Exs. D-8, D-9, D-10, D-12, D-17, D-19, P-F).

A review of the annual goals and instructional objectives/benchmarks shows that each is related to a specific need of the Student, and that they are XXXX. A review of the evidence shows that goals and objectives were developed by both XXXX and the District, with the participation of the Parent, and that the parties collaborated to review and revise them until all of the parties were satisfied. The record shows that the Parent agreed with the goals, although she believed that XXXX and she did not agree with XXXX. A review of the XXXX evaluations shows that each goal relates to a specific need of the Student. The Parent did not agree that goal mastery should be evaluated with XXXX, in that XXXX’s XXXX was measured at XXXX. However, the evidence shows that the Student mastered only XXXX during the 2008/09 school year involving XXXX, and I find that it was not unreasonable for the CSE to reduce the criteria in an attempt to assist the Student in obtaining a measure of success on XXXX goals. The Parent also testified to her understanding that there would be nothing to prevent the CSE from XXXX once XXXX (R. 1831-1832, 3209-3211; Exs. D-5, D-6, D-7, D-8, D-9, D-17, P-E).

The IEP must also provide for the use of appropriate special education services. I find that the CSE’s program recommendations for the Student for the 2009/10 school year were appropriate to meet XXXX individual needs. The CSE recommended placement for the Student in XXXX, a school located in XXXX local community. Although the Parents’ witnesses expressed their opinions that the program was more restrictive than the XXXX program and would be a step backwards for the Student, and XXXX stated her opinion that the District’s recommended program was one step removed from a residential placement, by legal definition, a XXXX located in a public school in which a student resides, where the Student would have exposure to both disabled and non-disabled peers, is less restrictive than a program located in a private school consisting solely of disabled students. See 8 NYCRR Sections 200.1(cc), 200.6(g), 200.13.

The evidence shows that the CSE intended to XXXX. The students with whom this Student would have been placed had similar needs. One student is receiving XXXX, and it was anticipated that XXXX. The other XXXX students XXXX (R. 59-61, 689, 711-717, 794-795; Exs. D-3, D-13).

XXXX and XXXX did not observe any XXXX in their observation of the Student at XXXX on April 29, 2009. XXXX observed two periods of XXXX involving XXXX during his visit to XXXX on March 10, 2009. The Parent and XXXX staff also warned that the Student XXXX. XXXX stated her experience with the Student’s XXXX, which included XXXX, and testified that when XXXX. I find that it was appropriate for the CSE to recommend placement in the XXXX to allow the Student to XXXX (R. 359, 1866-1867, 1903-1904, 1971-1976; Exs. D-2, D-3).

I also find that it was appropriate to XXXX. XXXX agreed. She stated her awareness that the District intended to XXXX (R. 2583-2586, 2795-2799, 2861-2862).

I also find the CSE’s recommendations for XXXX to provide XXXX, together with XXXX, to be appropriate and consistent with XXXX’s recommendation. The record shows that XXXX had over 30 years experience working with XXXX and he developed the XXXX Program for XXXX. He also worked as a XXXX to another New York State public school. XXXX is a XXXX, and the record shows that she was also highly qualified to provide such services to the Student and staff (R. 30-37, 39-41, 53-56, 252, 291, 313, 333-335; Ex. D-17).

I find that the recommendation for XXXX to be appropriate. The record shows that XXXX has been XXXX (R. 962-963, 3284; Ex. D-17).

I find that the recommendation for XXXX (R. 867, 1866-1867, 3265; Ex. D-17).

I find that the recommendation for XXXX to be appropriate (Ex. D-17).

I find the XXXX authored by XXXX to be appropriate, given the Parent’s determination not to participate in a transition plan because of her disagreement with the proposed placement recommendation. The evidence shows that XXXX reviewed a prior transition plan recommended by XXXX, a XXXX with XXXX, as requested by the Parent during the course of the CSE meeting held on July 21, 2009, in preparing her proposed plan. I note that the Student’s transition from XXXX, a XXXX, to XXXX, where XXXX was placed with XXXX, occurred without a lot of complications, as described by the Parent, and was accomplished by two visits by the Parent and Student to XXXX prior to the start of school. The Student’s visit to the XXXX for evaluations on May 8, 2009 also proved to be uneventful and productive, given the therapists’ descriptions of the Student’s demeanor upon entry into the school, travel through the hallways to the therapy room, and in XXXX participation in the evaluation processes. The evidence shows that the Student entered XXXX; that XXXX, although XXXX; XXXX participated willingly in XXXX evaluations; XXXX was XXXX toward the evaluators; and XXXX attempted all tasks requested of XXXX, with the use of XXXX (R. 215-218, 890-893, 895-897, 905-906, 956-958, 2460-2461, 3131-3134; Exs. D-5, D-6, D-16, P-P).

I also find that the District’s recommended program possesses the criteria deemed necessary by XXXX and XXXX for appropriate programming. XXXX recommended XXXX

. I find that the District’s proposed program meets each of XXXX’s criteria (R. 962-963, 2123-2126, 3272-3275, 3328-3331, 3333-3335; Exs. D-3, D-14, D-17).

XXXX also recommended that the Student XXXX (R. 2126-2132; Ex. D-3).

The evidence shows that the Student would have continued to work on XXXX (R. 30-37, 39-4, 62-65, 67-75, 281-284, 291-294, 334-335, 406-415, 562-567, 628-629, 689, 701-707, 870-873, 990, 3265-3266; Ex. D-17).

XXXX also made programming recommendations for the Student at the time she observed XXXX at XXXX on May 28, 2008. She recommended placement at XXXX (Ex. P-Q).

The evidence shows that the Student’s program would have been XXXX (R. 962- 963, 3272-3275, 3328-3331, 3333-3335; Exs. D-5, D-14, D-17).

XXXX agreed that a child who was XXXX (R. 2586-2588, 2812-2817; Ex. D-13).

XXXX agreed that the Student required a program that had XXXX. I find that the District’s recommended program encompassed all of XXXX’s recommendations (R. 2702-2703, 2827-2829; Exs. D-5, D-14, D-17).

I find that the CSE’s recommendations for XXXX to be consistent with XXXX’s recommendation to incorporate such services into the Student’s XXXX (Exs. D-3, D-5, D-6, D-7, D-17).

I also find the CSE’s recommendation for XXXX to be appropriate and in compliance with New York State regulation. See 8 NYCRR Sections 200.1(kk) and 200.13(d).

I find that the CSE’s recommendation for XXXX to be appropriate and consistent with the recommendations of XXXX and XXXX (Exs. D-3, D-17, P-Q).

I find that the Student’s XXXX to be appropriate and consistent with the recommendations of XXXX, XXXX, XXXX, and the XXXX staff (Exs. D-3, D-5, D-8, D- 17, P-Q).

I understand the Parents’ desire for the Student to remain at XXXX, and that the District agreed to fund that placement in the past. However, the New York State Education Law provides districts with the authority to either contract for the provision of special education services or to provide such services within its own confines. See N.Y. Educ. Law Section 4401(2).

I also find that the CSE properly considered the issue of XXXX when it made its recommendations for XXXX, and that the proposed program constitutes the Student’s LRE placement (R. 184-186, 211-215, 358-359; Exs. D-2, D-14, D-17).

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

ORDER

Based upon the above, it is hereby

ORDERED, that the Parents’ application for continued placement for the Student at the XXXX School for the 2009/10 school year is hereby denied; and it is further

ORDERED, that the Parents’ applications for XXXX, XXXX, and XXXX is hereby denied and it is further

ORDERED, that the Parents’ application that the District be directed to XXXX and XXXX to the extent that they XXXX is hereby denied and it is further

ORDERED, that the Parents’ application for XXXX and XXXX hereby denied.

NOTICE OF RIGHT TO APPEAL

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

DATED: December 5, 2011

New City, New York

____________________________________

WENDY K. BRANDENBURG, ESQ.

Impartial Hearing Officer

Footnotes

[1] and December 2, 2009. Hearings continued on January 15, March 4, April 13, May 7, May 13, May 20, June 7, June 10, June 23, June 28, July 13, July 27, August 3, August 6, August 12, September 27, October 27, November 3, November 5, December 8, and December 20, 2010. Additional hearings were held on February 18, April 7, April 8, and May 24, 2011. Many hearing days were held for less than a full day, due to the affects of the Parent’s documented illness of XXXX. There were also issues relating to the availability of witnesses of both parties (R. 1, 140, 248, 369, 496, 624, 784, 850, 1015,