Impartial Hearing Decision

THE UNIVERSITYn OF THE STATE OF NEW YORK

NEW YORK STATE EDUCATION DEPARTMENT

__________________________________________ In the Matter of __ and __, on behalf of __,

Petitioners, Findings of Fact and and Decision

Union Free School District, Respondent. __________________________________________

This case was brought before me upon my designation as impartial hearing officer to hear this matter, pursuant to the Individuals with Disabilities Education Act, 29 U.S.C. §1415(f)(1) and Part 200 of the Regulations of the New York State Commissioner of Education.

_______________ (__) is a -year-old student residing in the Union Free School District (district) who is classified The district recommended him for an inclusion setting, with related services of

Petitioners ________ and ________________, __’s parents (__, __, or parents), placed the child at __________ School (__________) and brought this hearing seeking reimbursement for tuition at the school for the 2009-2010 school year.

Both Petitioners and Respondent school district were represented by counsel. The district was represented by Michae Esq.,

The parents were represented by Neal Esq.

PROCEDURAL HISTORY

There were five days of hearing, held in the school district. Hearings were conducted on January 19, February 4, March 19, June 29, August 10, and November 3, 2010. A series of requests for extensions of time were granted in this case, making the final decision due date February 28, 2011.

DISTRICT CASE

, Director of Special Education for pre-kindergarten through 5th grade, testified that she oversees the special education program in the district’s four elementary schools. Tr. 39, 41 She stated that __ has been receiving services from the district since he was a preschooler. She first became involved with his education when she chaired the transition meeting from the CPSE to the CSE. Tr. 41-43 At that time, according to the IEP for the 2006-2007 school year, he was functioning cognitively in the low average range in verbal skills, borderline in performance. His preacademic skills were low average to average, and he had delays in fine motor skills and varied abilities in speech and language. Tr. 43-44; Ex. 3 The IEP indicated six hours of special class. Tr. 48

Ms. chaired some subsequent meetings for __. Examining the IEP for the following school year of 2007-2008, she testified that the IEP reported that the teacher said he was making nice progress, and the general education teacher said he made a nice transition into that class. She explained that the practice in the school __ attended was that the students have a half day kindergarten program where four days of the week half of the class was in the afternoon, to give the students the opportunity to interact with their general education peers. She did not recall any of the meeting, other than to look at the notes on the IEP. She stated her recollection that he was making progress, and that he still needed special education services and supports, but that he no longer needed to be in a full day special class. Tr. 45-50; Ex. 6 An amended IEP for the 2007-2008 school year provided consultant teacher services pushed into the general education classroom five hours a day and “enhanced staffing,” which she explained was an aide to provide additional support to __ during unstructured lunch and recess time, which was one hour. Tr. 49-51; Ex. 8 She agreed that this amounted to __ having a special education teacher available to him all day. Tr. 63-64 The IEP for the 2008-2009 school year specified co-teaching integrated; she did not know the size of the class __ was in the 2008-2009 school year. Tr. 52; Ex. 11

Ms. chaired the meeting for __ at the end of the 2nd grade, for the 2009- 2010 school year. She again referred to the IEP to answer the questions put to her. She stated that the teachers reported that he was making progress but still level. She also said the therapist said he was making gains, as did −2− the therapist, although the latter reported difficulty because he was resistant to modifications she was putting in place. was added to his IEP to help him accept his learning differences and access the supports being provided him. She cited goals specifically included to address that issue. She did not recall anyone reporting he did not make progress. Tr. 54-58; Ex. 12 __ would have been in a integrated co-teaching class in 2009-2020 of 20 or 21 students; he would have been the 9th special education student in the class. Tr. 61-62 Enhanced staffing was not recommended for the 2009-2010 school year. She stated the rationale was that the program was changed to include additional staff. She explained that the program was changed so the school building was given an additional aide support for every co-teaching class to use “for whatever they felt it was needed.” She stated they had access to staff, and that was available to __ if he needed it. It was also noted that __ did better when there wasn’t somebody hovering over him in those “unstructured evaluations.” Tr. 58-59 She acknowledged the statement that the parents voiced concern about the class size, although she didn’t recall specific concerns. The team acknowledged the parents’ concerns and promised a team meeting in the fall to discuss his progress, to which the parent agreed. Tr. 60-61 She stated that she thought the IEP was appropriate for __. Tr. 62 On cross examination, she stated she did not recall concerns other than class size expressed by the parents, who agreed to the team meeting in the fall. Tr. 68-69

On cross examination, she stated that the difference with the 2008-2009 program was that the maximum class size could be 12:1, whereas in the previous 2007-2008 school year the class had been capped at eight students. Tr. 64-65 She agreed that that the student class he would have been in for 2009-2010 was more than the eight student ratio from his earlier 2007-2008 IEP. Tr. 65 She also testified that it was determined that he did not need a special education teacher for the hour a day for specials (art, music, gym), in addition to lunch and recess. Tr. 65 He had a general education teacher with a special education teacher four hours a day and a mainstream class with only a general education teacher one hour a day. Tr. 65-66 In regard to the aide for the lunchroom in 2008-2009, she did not know how large the lunchroom was; she agreed that it contained many classes. She testified that there are no special education teachers assigned to lunch. She did not recall the parents voicing concern −3− that __ did not eat during his lunch period, that he isolated himself in lunch and other parts of the school day, or that he had difficulty socializing and was not invited to birthday parties. Tr. 66-67

The IEP did not specify a number for the group counseling recommended. Tr. 69-70 The discussion was that __ was resistant to some services, supports, and modifications offered him, as he didn’t like to be different from the other children and they determined to help him with that. Tr. 72-73 She didn’t recall if the child had been bullied or discussion about a call from the principal that he had been bitten. Tr. 73

Ms. also testified about a meeting in August 2009, which she said was a resolution meeting. Changes offered included direct reading. She agreed that the IEP and the resolution document both said __ benefits from small group instruction. Tr. 85- 90 It also added the statement that __ “has difficulty initiating and sustaining interactions with peers in unstructured settings,” and “__ needs to improve his ability to initiate and sustain peer interactions.” Tr. 81; Ex. 13 , special education teacher, was __’s teacher in the 2nd grade inclusion class in the 2008-2009 school year. Tr. 118 She described him as a very sweet boy, who struggled across academic areas in regard to language processing, had small motor deficits that impacted his learning, and struggled with comprehension and also with decoding. Writing, which was severely limited by small motor deficits, was not an activity he preferred. In math he was able to apply concepts independently after they were broken down, but needed language support and manipulatives. He also had articulation problems, including processing problems, that were addressed by the speech and language department. His articulation and his trouble reading cues presented social problems as well. Tr. 121-122

There were 20 students in the classroom, nine of whom were special education students. She described the structure of the classroom during the school year, stating that at times they performed parallel teaching, at times pulling students into a smaller group for more intensive work or one -on-one for a difficult subject, and station teaching. Tr. 124-125, 165 She stated that enhanced staffing provided for __ was an additional aide stationed at lunch and at some of his special areas, on a 3:1 basis. Toward the end of the year there was a discussion with __’s mother that the aide was almost detrimental to his progress, because he had a deep sense of someone watching him −4− and he would almost draw her attention by acting out. She stated that she thought __ would progress without an enhanced staff in those areas. Tr. 127-128 She estimated that there were between 80 to 100 students during the lunch period with five adults. Tr. 129 She described a typical day for her class in the 2008-2009 school year, which began with morning meeting, where the children had an opportunity to write or draw in journals each night, followed by reading and reading groups, a writing block, and a math block. Tr. 130-131 She stated that __ was in the solid middle in reading. Tr. 132 She stated that she often ended up working individually with __ because he would need more direct instruction. Comprehension was an issue, and he needed things broken down and monitored as he went, so it took a lot of 1:1 attention. Tr. 133 She instructed him using the PAF program, and he developed a degree of fluency before the end of the year. In comprehension the work with __ was more protracted than typical, stopping after a page or a few sentences so he wouldn’t get ahead of his understanding. Tr. 133-134 His writing was not legible in 2nd grade, and she made accommodations which were offered to the whole class. Specifically she offered to scribe for him, or highlight letters and trace them, and word processors were also made available. Tr. 135-136 For handwriting, he had sessions with an therapist. She stated that she saw minimal changes in his handwriting during the 2nd grade. Tr. 136 In math the directions for specific tasks were broken down, and he was offered manipulatives and different modalities to help make meaning of the concepts. Tr. 138

She stated that he made gains in fluency and was able to express his comprehension with support. His phonemic awareness was relatively solid toward the end of the year, and he was concentrating more on what he was reading as opposed to trying to decode small pieces of the text. Tr. 138-139 She administered the DRA to him There was an incoming DRA on September 22, 2008, which she did not administer; his comprehension level was and his reading characterized as and word-for- word. There was no accuracy level provided, which she interpreted to indicate he had many miscues when reading, Tr. 140-143; Ex. 31 She administered the next section of the test in October; at a level below the September test, and he was able to score a comprehension level and achieve an accuracy rate o percent. She stated that she didn’t think any gains were evidenced, but that the test established a more accurate incoming reading level. He was at a 3(c) DRA stage. The test she gave was more −5− appropriate from his reading level. Tr. 143-146 The next test, conducted in March 2009, was at a much higher level. She stated that both tests show he made predications, and he had a 99 percent accuracy rate. His comprehension level was still within the acceptable range of comprehension for this test. The DRA stage was a reflecting progress on the continuum tested by the DRA, although still level for 2nd grade. Ms. was unable to explain the difference in DRA levels. Tr. 146-149 She also explained the reading continuum used to assess progress, which showed her observations that __ was a an emergent reader and beginning reader in the 2nd grade, “advanced emergent’ and “early beginning” in the fall and “advanced beginning” in the spring. Tr. 151-152

She also discussed teacher narrative reports that indicated that __ was well liked by his peers, stating that the class climate was largely one of acceptance and __ had certain social strengths, specifically playing sports and talking about sports. Tr. 153-154 She testified that he had become more aware of selecting appropriate text, and they were better able to match him with books of higher interest to him and books he felt ore comfortable being seen by his classmates. Tr. 154 His reading was definitely not as consistent when reading independently as when working individually with the teacher or in a small group; he needed constant redirection to attend. Otherwise he would be “kind of looking” to see if someone was watching or what the other kids were doing. Tr. 155- 156 He enjoyed telling students about books he was reading. If the physical writing task was removed from the equation and he was receptive to using some sort of support, he loved to tell a story and could do so effectively. His handwriting is not legible. In math, the curriculum involved quantities, and __ needed to have either connecting cubes r small manipulatives as an aid for understanding. Tr. 157-158, 162 She stated that she wrote the narrative report in May or June 2009, and explained the comment on her narrative report (Ex. 31, p. 7) that he is “well liked by his peers and enjoys social interaction during group work as well as during unstructured time” as that he had become more appropriately social and was more inclined to seek out social interaction towards the end of the year. Tr. 159-160 In the beginning of the year there was a little bit more sort of inappropriate social interaction during unstructured time, but as the year progressed it eased off. Tr. 167-168 She testified that she conducted an educational evaluation of __ , and the WIAT showed that he fell largely in the below −6− average or low average range for his group. Tr. 164; Ex. 27

She stated that there was nothing about the class size that prevented her from doing things she felt necessary for . Tr. 168 She was at the CSE meeting on June 8, 2009. She stated that the progress in decoding skills was based on his DRA testing, advancing five levels from Level C to Level F. She explained math as a relative strength, that if concepts were broken down and he was directly instructed and availed himself of the manipulatives e could independently apply concepts. Tr. 168-172; Ex. 12 She stated that __’s father expressed a concern that the class size was going ti impeded __’s progress and the CSE agreed to convene in the fall to assess progress and see if changes needed to be made. Tr. 173 She said that she believed the IEP was appropriate to meet __’s needs for the 2009-2010 school year. Tr. 175

On cross examination, she agreed that __ struggled across academic areas, especially regarding language processing, and struggled as a reader, to an extent with decoding. She agreed that he had small motor deficits that impacted his learning and writing. She agreed that he needed language support, and manipulative support. She agreed that he had articulation problems, social problems and difficulty reading other children’s social cues. Tr. 189-190 She stated that the class broke into groups, she and her co-teacher would each be in charge of a group; sometimes there was another adult, either an aide who rotated among the 2nd grade classes or the speech teacher who pushed in. There was no other teacher assigned to the class. Tr. 193

She discussed the scores on the testing he took in May 2009, and acknowledged that he scored at the percentile in numerical operations, the percentile in spelling, the percentile in reading, the percentile in reading comprehension, and the percentile in written expression. Tr. 197-199; Exs. 12, 27 She agreed that the scores in numerical operations and reading showed significant deficits. Tr. 208-209 She testified that he made marked progress in decoding and his ability to express his comprehension and writing, In math, when he took advantage of manipulatives and having instruction in a smaller group. He was able to grasp concepts and employ them independently. Tr. 240

She stated that it was her understanding that the parents had a copy of progress reports indicating the progress the child had made in the school year at the IEP meeting in June 2009. Tr. 199-201 She stated that the classroom teacher report dated May 22, −7− 2009 noted on the IEP was by the classroom teacher, ; her own report for the meeting was the educational evaluation and comments within the IEP. Tr. 202; Ex. 12, p. 6 The IEP stated that he had difficulty writing ideas because of his handwriting and updated testing showed reading and math below expectations. Tr. 203

The enhanced staffing was eliminated for the 2009-2010 year because __ appeared to have greater difficulty having a staff member than being independent at unstructured times. She conceded that she had not observed interaction between __ and the aide, and the information at the meeting was based on the aide’s report to her. Tr. 209-210, 236-237 He would instigate situations to warrant her intervention, such as physically poking or pushing or verbal. Tr. 227-228 She did not recall any objection by the parents to removal of the aide. Tr. 228-229, 237 She explained that counseling was added because __ had some difficulty in class accepting the modifications necessary to implement his IEP and make instruction accessible. She stated that the difficulty was not at the outset of the school year, but developed a few months into the year. She testified that she addressed the issue by making support universally available so he wouldn’t feel singled out. Tr. 211 She also had informal conversations with , the school psychologist, a leave replacement. Tr. 213 She stated that globally __ did better in the 1:1 and smaller groupings than when he was taught in a group of 20. Tr. 214 She testified that his awareness of his deficits in the inclusion class affected him in that the supports put in place to make instruction accessible went largely unused because he was “exquisitely aware” that these were special things put in place to help him understand. He refused the modifications; he would just shut down. Tr. 229-230 She stated that she hoped though the counseling goals added to his IEP that __ would more readily accept modification and broken down instruction and smaller groups to better support his learning. Tr. 241-242

She confirmed that although he was more appropriate socially toward the end of the year he still had inappropriate activity during instructional time, giving as example he would talk about unrelated things and would need redirection to that end. He would display behavior where he would fidget or sort of from instruction. Tr. 230-231

She said that at times there are two specials in a day. __ would be in a class of 20. Tr. 217 She stated that there was only one teacher but at times there was −8− enhanced staffing for specials, an aide assigned to __ and two other students. Tr. 219- 220 She acknowledged that he needed more direct instruction compared to other children in the class. He was not the only special education student who needed instruction, but they didn’t all need the same level of instruction. Tr. 220-221 She told the parents he performed much better when she worked with him one-on-one. Tr. 223 At the end of the year his handwriting was still illegible. Tr. 221 She confirmed that there were times he would have a book open in front of him but nothing was going on. Tr. 221-222 She confirmed that she told the parents that __ would shut down during class when things became too difficult for him. She discussed that __ was not comfortable with having additional assistance because he felt that it made him feel different from his classmates. She discussed that at morning meetings he was not eager to share his written journal or reading with others. Tr. 224 She stated that she remembered sending __ to the nurse because he picked at his skin and caused it to bleed. She confirmed that he would often say he was ill so he could go to the nurse. Tr. 224 She stated that she recalled conversations about __ calling himself stupid and saying he wanted to himself. Tr. 224-225 She stated that the psychologist spoke with __, although the behavior continued. Tr. 250 She stated that the psychologist met with __ periodically during the year, as things came up, not on a schedule but in response to behavioral issues that arose in the classroom. She would speak to __ and Ms. would consult, with her about strategies to help __. She confirmed that these discussions were about different ways to make it easier for __ to communicate rather than internalize the ways he was feeling in class, and about his feelings of difference and that they caused him anxiety. Tr. 252-253 She stated that a full-time special education class was not considered because it was felt that his and difficulty with accepting his disabilities would have been exacerbated in a special class; that it wasn’t a good social placement for him. Tr. 248

, pathologist, provided services for __ in the 1st and 2nd grade. She stated that he presented with receptive and expressive language difficulties as well as articulation delays. He had retrieval issues, and difficulty following directions, understanding concepts, and organizing his thoughts. He had difficulty producing certain sounds. Tr. 261-263 She described services during the 2007-2008 school year, stating that they focused on articulation, as well as issues with syntax and −9− grammar. In group sessions, they worked on listening and following directions, understanding language concepts and basic phonemic awareness skills. Tr. 263- 265; Ex. 6 She stated that the IEP goals were changed after she began working with him, explaining that she thought some of the goals were excessive, while others being worked on in the classroom were redundant. Tr. 265-266 She stated that he made progress with articulation, as well as syntax and grammar goals. Tr. 266-267 She identified the IEP developed for the 2008-2009 school year, and was present at the CSE meeting developing it. She noted on the IEP his progress in phonemic awareness skills, describing the work she had done with him to justify that conclusion. Tr. 271-272; Ex. 11 She described attentional difficulties, specifically that he was very distractable in a group. He had certain skills, but if given a multi-step direction, he often got distracted. Tr. 278 His syntax and grammar definitely improved during the 1st grade, and sequencing and organizing sentence improved. He also made gains in articulation. Tr. 281-282 She cited that the 13-point increase in his score on the Goldman-Fristoe Test of Articulation, stating that his score showed significant progress. Tr. 283 His behavior was very different in the 2nd grade and he was very inconsistent. Some days he was extremely verbal and others kind of spacey. Affect was variable from day to day, and he didn’t talk as much as he had the year before. There were issues concerning his sleep at night, and she didn’t know if his behavior was influenced by medication. She stated that he was on medication in the 2nd grade, mentioning and . Tr. 280-281, 311 She agreed with the IEP statement that he benefitted form small group instruction. Tr. 324 Ms. changed the services in his twice weekly therapy sessions during 2nd grade. She worked on articulation skills, expressive language, and receptive language. She observed progress; his expressive language was a little better, and there was some improvement in receptive language. She characterized his improvement in articulation as fair. Tr. 284-286

, testified that she treated __ in the prior 2008- 2009 school year. She treated him for delayed fine motor skills, visual motor skills, poor handwriting, and poor attention. Tr. 234; Ex. 11 She described the work she did with __ at length. In visual motor skills, she worked on scanning and tracking. In handwriting, she worked on how he holds a pencil, hand manipulation skills. Her work on attention focused on his ability to take in sensory input and produce a functional response. Tr. 335 His handwriting −10− was affected by issues with his visual motor integration and coordination, being able to use vision and motor skill at the same time. She used different sensory modalities to teach letter formation, citing Handwriting without Tears and the handwriting portion of Preventing Academic Failure. She did hand strengthening to work on his grasp. The work utilized the pencil grip, a slant board, and sometimes sand paper. Tr. 336-338 He had a hard time smoothly tracking across midline, his eyes jumping around to whatever was in the room. Work on scanning and tracking included tracking games. Tr. 339-340 She stated that attention issues were more apparent during handwriting activities, reflecting avoidance behaviors more than strictly attention. She agreed that he would attend better to the task following activities in which he had greater interest. Tr. 340-342

Ms. conducted an evaluation during the year. She stated that during the year he made progress in his visual motor skills, citing results on the Beery concerning motor coordination. He mastered basic shapes and specific drawings, although he had a harder time with novel drawings; at the beginning of the year he could not accurately produce all these shapes, which are prerequisite to handwriting. Tr. 342-348; Ex. 26 The year before he was copying 16 out of 26 lower case and 19 out of 26 upper case letters. Evaluation showed that at the end of the 2nd grade he was able to self-generate 50 percent lower case letters and 53 percent upper case letters legibly. Tr. 349-352; Ex. 11 When she conducted her evaluation, he could copy the letters; she characterized the legibility of his copying as “fair.” Tr. 354 She also cited progress in his visual perception, saying that he was better able to complete puzzles, although not consistently. Tr. 354-356 She stated that his handwriting got better as the year progressed, but acknowledged that the legibility of his writing was poor and remained delayed. Tr. 356-357

She explained that the change of services in the IEP for 2009-2010 to 1:1 service was not a change in the overall time but a change from one group and one individual to two individual, recommended to better address the specific areas of his needs. Tr. 358-360; Ex. 12 , school psychologist, testified that she first became familiar with __ when he transitioned into kindergarten, and that she participated in the CSE meeting in regard to transition from CPSE to CSE. Tr. 424; Ex. 3 She stated that at the time he had pre-academic skills. She discussed the results of the Wechsler Preschool and Primary

−11− Scales of Intelligence (WPPSI) conducted in 2006, which showed that his verbal skills were in the low average range, nonverbal skills in the borderline range, and cognitive skills at the borderline range. Tr. 425-426 He was recommended for a special class with 12 students, and one teacher with two assistants. Tr. 427 She stated that during the kindergarten year, he had a hard time with attention, displayed behaviors that were attention seeking, and had difficulty with language. She cited difficulty with articulation that may have interfered with his play skills. Tr. 429, 431-432 His difficulties were two-fold, attentional and language. Tr. 434 The IEP was amended to add goals to address social pragmatic language skills and social-emotional behavior, specifically goals to display the ability to play cooperatively, take turns and share materials. Tr. 430-431; Ex. 5 At an annual review to develop __’s IEP for 1st grade, he was beginning to read. The teacher talked about his progress in social skills, that he needed to practice rules before being introduced to a new game but was able to play cooperatively with other children. The speech language therapist reported that his articulation skills were better, but there were still delays in single words. Tr. 435-439; Ex. 6 Ms. explained that “enhanced staffing,” included on his IEP for 1st grade, was an additional adult specifically assigned to a child, in __’s case on a 1:1 ratio to help navigate social situations in lunch and recess. She explained that although he was receiving 12:1:2 support and had made academic gains, they thought he needed some social and emotional support during unstructured time. The 1:1 adult could shadow him and consult with the teacher and with her. Tr. 443-446 The enhanced staffing was modified in an IEP in November 2007, as the team felt the level of supervision was very intense and he didn’t need that level of support. Social-emotional goals were added or continued at this point. Enhanced staffing was changed from a 1:1 aide to an aide responsible for up to three students. She stated that the change reflected progress. Tr. 446-448; Ex. 8 Later in the 1st grade school year, in January 2008, social-emotional goals were removed from his IEP. She explained that the goals were still on the IEP but those were the ones that were taken out. She testified that all the social-emotional goals had been mastered, and stating that she based her conclusions on meetings and consultations with the team, as well as her own observations of him in class. Tr. 449- 451; Ex. 10 During the year she observed him in interaction with other children,

−12− concluding that he had improved. His frustration level was lower and he was able to play for longer periods of time, but he was still very if it was something new. Tr. 440-442 She described the progress he made in the 1st grade as “astounding,” stating that he was more attentive in small group instruction, language “sort of same together” for him, and he was better able to organize information and understand it. Tr. 443

She attended the CSE meeting at the end of __’s 1st grade year, which was an annual review meeting. arp, the classroom teacher at the meeting, reported substantial progress in meeting his goals. She said that he was sometimes and might have difficulty expressing himself, but he had developed coping skills to deal with the frustration at that time. He was not recommended for social-emotional goals, because at that point he didn’t need them. Tr. 452-453; Ex. 11 Ms. described it as a “fabulous year,” citing academic gains by __ across all areas in reading, math with language, and articulation, as well as social interactions on the playground. The special education teacher also talked about significant gains although with areas that needed continued work, which Ms. didn’t recall but on viewing the IEP identified the areas still needing work as reading, writing, and math. She stated everyone was in agreement he had made wonderful gains. Tr. 455-459

Ms. was on maternity leave as of March of __’s 2nd grade year, but testified that __’s 2nd grade year was a very good year. He made progress in all the goals set in place. She cited discussions with Ms. , who told her that he was progressing in the first semester, although he was sometimes inconsistent. Tr. 461-462 Ms. reported that there were times when he didn’t want to do a task, which she felt was because he was afraid of how it would look in from of his peers. He wouldn’t ask for support or help when he was in a larger classroom arena. She described this as “very very typical” behavior, stating that how to address it depended on where a child is cognitively. Before going on leave, she asked for social-emotional goals for __ to work on the following year. Although she did not participate in the IEP meeting at the end of __’s 2nd grade year, she stated that the goals developed were perfect for __. She stated that the IEP developed for the 3rd grade year was appropriate, in that it continued the academic skills he needed to work on and recognized social-emotional realm as an area in which __ needed to develop coping skills. Tr. 464-468

−13−

On cross examination, she denied knowledge that __ went to the nurse on a regular basis during the 2nd grade, although she acknowledged that his picking at his skin came to her attention on two occasions. Tr. 469 She stated that there were no social-emotional goals in the 2006-2007 IEP (Ex. 3), but agreed that there were goals in successive IEPs developed in March 2007 (Exs. 5, 6), which represented an increase from two to 10 or 11 goals. She acknowledged that __ was on medication when he attended school, originally for allergies and later for attention issues. She identified 10 goals in the IEP developed in November 2007 (Ex. 8), and then 4 goals in January 2008 (Ex. 10). The goals were the responsibility of his special education teacher, and there was no counseling on his IEP in any of those years. Tr. 472- 478 In the 2008-2009 school year, __’s 2nd grade, there were no social-emotional goals and no counseling. Tr. 478 She agreed that the IEP developed for the 2009-2010 school year, __’s 3rd grade year, reintroduced social-emotional goals and counseling for the first time, and for the first time the social-emotional goals were the responsibility of the school psychologist. Although she recommended social-emotional goals be administered for the following school year, she explained that there was no meeting to amend his IEP as she “wasn’t sure he was going to absolutely need it until the rest of the school year,” and stated that she wanted them put on the radar for September. Tr. 479-380 She was not a provider of guidance support for __ at any time. Tr. 486 She agreed that the IEP did not indicate in what size group __ was going to receive counseling. Tr. 484-484 His classification was changed from speech and language impaired to learning disability, as the speech and language impairment impacts all the content areas. Tr. 485-486 She did not recall any conversation about __ saying that he wanted to himself. Tr. 487

Affidavits were submitted by and . Ms. , the school nurse, stated that __ did not visit the nurse’s office with greater frequency than any other student. She described four occasions during his 2nd grade year that __ visited the office for issues associated with scabs. She stated that she was never informed that his visits were related to academic demands. Ex. 43 Ms. affidavit explained that she was the classroom teacher in the co-taught class for __’s 2nd grade year. She stated he did not experience social problems and was well liked by his peers, which did −14− not change during the entire school year. She did not see him “picking scabs a great deal in class” and she made “no connection whatsoever” between his scab picking and academic demands in the classroom. Ex. 42

PARENT CASE

testified that she was the Director of Admissions at __________ School for 28 years, until June 2009. Tr. 505 She described __________ in the 2009-2010 school year, stating that it is a school for children with language-based learning disabilities. It has 250 students, age 6 through 16 years, which corresponds to grades 1 through 9. Hallmarks include small individualized classes and a mission to provide a short-term intensive environment to build academic skills, help the child learn strategies to use those skills, and develop the child’s self-esteem and self-advocacy skill. She stated that the program is a language immersion program utilizing a team approach, in a very structured and very nurturing learning environment. Tr. 507-508

She conceded that she was not at the school during the 2009-2010 school year, and had been hired only in January 2010 to review __’s education. Prior to her testimony, she reviewed __’s academic reports from __________ in December 2009 and June 2010, as well as IEPs for the 2009-2010 school year and a resolution meeting. She also observed __ in his classes, and met with his adviser and teachers at __________. She observed him in early January 2010, later on January 21 or 22, 2010, and then during three days in May, specifically May 5, May 6, and May 7, 2010. Tr. 505-506, 539-540, 543

She described his program in the 2009-2010 school year, explaining that academic classes meet five days a week. __ was placed in the Tutorial 1 program at __________, the lowest level for emerging readers. He was in a 2:1 tutorial class that met daily, with a reading teacher and one other student. The emphasis in the tutorial is on building structural analysis, as well as decoding, comprehension, writing and spelling skills. The class met for one period, a 40 minute session. He was also in a 2:1 math class that met for one period daily. His oral language class, which worked on building receptive and expressive language skills and pragmatic or social language skills, met daily, with six students in the class and the oral language teacher; one day a week, the

−15− speech-language teacher pushed in and the class was co-taught. Tr. 509-511 He also had a daily writing class, also with six students, which provided a coordinated program with the tutorial teacher and worked on fine motor skills. There was a double block daily, 80 minutes for core curriculum, which includes social studies, science, and literature, in a group of eight students. Tr. 512-513 He also had a 2:1 speech and language pullout once a week, working with the same clinician who pushed into the oral language class. In addition, he had a study hall period four days a week and an elective four days a week. Tr. 515 served as his adviser; advisers at the school coordinate academic and social programs for students, in a caseload of approximately 20 to 25 students. The school day began with a 20-minute advisory group, for checking homework and organizing for the day, and the children come back for a mid-morning meeting with the advisory team. The adviser also coordinated the study hall at the end of the day. Tr. 516-519 The school day is from 8:15 AM to 4:00 PM, except on Friday, when it ends at 12:30 PM. Tr. 520 All his teachers were certified in special education in __________, and a number were certified in both __________ and New York. Tr. 521 The school had a head of psychological support services, two school psychologists, and two social workers, who were available for referral if students display or social issues above what can be addressed in the school’s program. Tr. 535-536

She stated that initially __’s scheduling was based on information from the parent interview and from review of the file submitted by the parents, including IEPs and psychoeducational evaluation, and the two-day visit of the child prior to his admission. Tr. 527 She stated that they saw he was an extremely distracted child, who needed a lot of refocusing in class. His teachers reported difficulty in all academic areas; he was below ability and grade level. She cited evaluation and modifications to his IEP, and stated that they felt he had been in a special education environment for three years where he was receiving a lot of support, yet was still so behind, that he required a very small group and low level tutorial to attack these skills level in reading. Tr. 528

In his reading class, __ was placed with a child with similar decoding and comprehension and language issues. According to the reading teacher, he had not yet mastered all the short vowels in CVC pattern. He finished at level “D” in the Orton approach, a level she estimated at 2nd grade. Tr. 521-523 In math, he was placed in a

−16− 2:1 math class in early October 2009, after it was decided that an initial placement in a group of four students had too fast a pace for __. She cited his difficulty with the language of math, stating that he was placed with a child with similar math skills. She described him as an emerging math student, with skills still at the 1st grade level at the end of the 2009-2010 school year. Tr. 523-524 She stated that she observed the reading class, and there were a lot of teacher prepared materials, visual cues and hands-on game activities used by the reading teacher. Tr/ 536

She testified that reading, writing, math, and social-emotional were all areas being dealt with at __________. In the social-emotional area, __ was receiving assistance with his pragmatic language, which interfered with his ability to communicate and to socialize with his peers. It was being directly addressed in the oral language class, in pragmatic language goals including initiating conversation, understanding and reading the environment, and understanding as listener’s perspective. It was also being addressed in each of his classes, through collaborative goal setting coordinated by his adviser, and the speech and language clinician who sat in on team meetings and was able to offer suggestions for classroom teachers. Tr. 530- 532 At lunch time, there were five or six children and two adults at every table, to make sure a child was not left out and that the children were engaging with one another. Tr. 532-533 She also cited his participation on a soccer team, a softball team in the spring, karate class, and cooking class. Tr. 533-535

Ms. stated that she spoke with Ms. and reviewed academic progress reports prior to observing __, which indicated that he had made quite a bit of progress even up to the December report. She stated that he presented with significant expressive language issues which undermined all his academic areas and impeded his social interactions, poor fine motor dexterity, and difficulty with working memory and with phonological memory. According to Ms. and his classroom teachers, he started as a very anxious child, very distractable and lacking any academic confidence. Initially, each teacher said he was exhibiting some performance and avoidant behaviors. Ms. told her that he became very comforted by the structured routine of the program in the first months of school, and teachers in the December 2009 report reported that prior to the end of the fall term, he was beginning to participate more

−17− actively in class. In math he was working with manipulatives to do simple addition. There was progress cited in the writing class, according to teacher , and he was using specialized pencil grip and paper to form legible letters. In the oral language class his teacher reported that he was much more comfortable participating in role playing and games, and approaching his peers outside the classroom using the strategies introduced in class. In the core class, the teacher reported that he was very interested in the materials; he still required a lot of redirection and language broken down, but was very interested in the material. Tr. 544-549 She observed him in January 2010, and two teachers mentioned some regression in behaviors she observed. She stated he was responsive to direct questioning and did participate when called upon, although he wasn’t volunteering. She saw him again in May 2010, and he was then very actively engaged in class. He had moved up to Book D, and was doing an oral reading piece with his partner in the tutorial class. She described him as very engaged and enthusiastic, wanting to show off his work. She also observed him in his writing class, and saw much more writing. In January he had struggled to produce legible words in isolation; legibility was difficult if he had to write a sentence or two. In May, he produced a book that he wrote and illustrated. Tr. 549-551

__, __’s mother, testified concerning __’s early history. She stated that __ was evaluated through early intervention when he was 18 months old, at which time he had issues with balance, temperament, and feeding skills; he seemed to have low muscle tone. Tr. 708 At the CPSE level, he received and and eventually When he started kindergarten in September 2006, he began in a self-contained classroom. Tr. 708-709, 711; Ex. 3 She testified that __ began to have social and emotional problems, explaining that he always had some anxieties if he was in a class with children who were acting out or behaving in an inappropriate manner, and he could then become impulsive, disruptive and physical. Changes were made in January of his kindergarten year, although he did not show improvement. Tr. 712-713 __ had been working privately with a speech therapist since he was three years old, and he then began to see a psychiatrist for some evaluations and a neurologist, who prescribed medication. The kindergarten year was not successful. Tr. 714-716 −18−

The IEP prepared for the following 2007-2008 1st grade year recommended a co-teaching or inclusion program. The 1st grade year began on a much more positive note, in part because __ stayed in his classroom with the entire class for the whole day (other than being pulled out for speech and occupational therapy). In kindergarten he had had a difficult time understanding why he was moving between classrooms, and with different children at different times of the day. __ stated that __ needs to have structure, and staying in the same class the entire day helped him with a lot of the stress. Tr. 717-718 Modifications were made to his IEP in October and November, eliminating goals the teachers thought unnecessary and changing the aide from a 1:1 ratio to a 3:1 ratio, as he didn’t need that intense staffing and was socializing fine with his peers. Tr. 718-719; Exs. 6, 8 Another IEP was developed on December 18, 2007, to eliminate more goals, speech goals that she was told were redundant, reading goals that were being addressed already in class, and the social-emotional goals that were no longer needed. Tr. 720-721; Ex. 10 Socially and emotionally, __ had a nice 1st grade year. Tr.721 On January 4, 2008, another IEP was written, described classroom behaviors as moderately interfering with instruction; __ agreed with that description of his behavior from January through June of that first grade year. The IEP also said he needed extensive practice in social skills, and she acknowledged the difficulties but thought it was far improved from kindergarten. Tr. 722 She agreed with the IEP statement that he had delays requiring him to be taught in a smaller teacher/student ratio with minimal distraction. She explained that __ was easily distracted, and socially the other children were becoming more sophisticated in their language and interactions, and his social skills were not at the same level. He wasn’t as as the year before, which was an improvement, but he was not able to concentrate in the larger setting as much, and he was starting to fall behind educationally. Tr. 723-725

In 2nd grade, he was in the co-teaching model. The IEP, drafted in March 2008, stated that there are no social-emotional needs to be addressed through special education, which she believed was an accurate assessment at the time. Tr. 726-727; Ex. 11 He started on a positive note, enjoying being once again with other mainstream children and the teachers, but he began to realize the difference between his skills level and the other children in the 2nd grade. He was still reading picture books, while they

−19− were reading chapter books, his handwriting and other skills were not the same, and there was a morning meeting which involved sharing a writing journal. He was unable to participated because he didn’t have anything written down, and Ms. asked to have him type up something to share but he didn’t want to be different from the others. Tr. 729-730

At the time he was taking Medidate to address attention and focusing issues, and Abilify for help with his anxieties. Tr. 730-731; Ex. 24 As the year progressed, he became more withdrawn, and started to not want to go to school. She testified that she often received calls from the school nurse saying that he was in her office with a tummyache or a nosebleed, or that he would pick and make his arm bleed, and wanted to come home. This began to happen more and more often. She spoke with the nurse and Ms. Giacomo, and they discussed it as avoidance behavior. The nurse began calling her, but encouraging him to go back to the classroom. He was saying he was ill, that he wanted to come home, that he was stupid, and on a couple of times he said he wanted to kill himself. Tr. 732-733 The skin picking was extensive. Both of his arms had markings, and he had to go to the pediatrician twice to get antibacterial ointment because they had become infected. Ms. would get him band-aids. This behavior continued from about November through the end of the 2nd grade year. She testified that she discussed the suicidal ideation with the school; no one from the school ever discussed the need for a behavioral plan to dal with these behaviors. Tr. 733-734

__, testified that the scores on an evaluation conducted by Ms. seemed a little higher than he actually is, stating that verbal comprehension would be rather than average and perceptual reasoning would be rather than Tr. 736-737; Ex. 25 Although he had trouble focusing and was fidgety in the classroom, there was no discussion of its relevance with her. Teachers reported that he often shut down when given a task too difficult for him, requiring Ms. to constantly refocus him. He didn’t want to use the manipulatives or a keyboard for writing, even though it was offered to the entire class, because he felt like he was different from everyone else. It was recommended that he use the keyboard and start typing because handwriting was really not achievable and was going to continue to be a major setback for him. She was not sure anything was implemented to teach him to write. He did not learn to write

−20− at the end of the 2nd grade. He did learn to handwrite at __________. Tr. 737-739, 752- 753; Ex. 26 She testified that she was not advised of __’s progress at the end of the 2nd school year; conversations were on the different issues going on and how to best address them. Tr. 740 She stated that in 2nd grade, __ began to withdraw socially; he stopped talking about friends and wanting them to come over. The teacher told her he started to play by himself at recess, and he wasn’t invited to birthday parties anymore. He came home each day sad and angry, and didn’t want to discuss the day as he did before. At home, he would call himself stupid, constantly say, “I hate myself,” “I am stupid,” “I want to die.” The skin picking continued. He also started to have trouble with one other child, and __ started to act negatively toward other children and say mean things. He stated that he hated school. __ confirmed that these issues were discussed with the school. Tr. 742-749 She described her observation of a science day at the end of the 2nd grade. __ had worked on a science project with a small group and was eager to present the project with his peers, but when it was is turn he couldn’t concentrate because of other things going on the classroom. She discussed it with the teachers, who confirmed that it was typical for __. Tr. 749-750 She confirmed that during the year they parents were providing services privately, including speech, occupational therapy, and reading; the school knew they were providing these services and encouraged communication between the teachers and the tutors. Tr. 750-751 She stated that the 2nd grade did not see a large improvement, if any, academically, and emotionally it really just went downhill. Tr. 751 When she met with the teachers about his issues, they had no recommendations. She asked if it was possible to take this group to another room to work in a small setting, but was told it wasn’t possible, it had to be done in the classroom. Tr. 751-752

The district recommended a co-teaching program for the 3rd grade. At the IEP meeting the parents expressed their opinion that it was going to be a continuation of what happened in the 2nd grade, that he would realize the disparity between his educational abilities and those of his peers, which would continue to grow, and his self esteem would suffer and his ability to focus in the larger setting would be very difficult for him. Tr. 753-754; Ex, 12 The class was described to her as larger than the class the previous year, not just 12 students, but 12 special education students. The parents

−21− said it was too large a class, but the response was that was all they had to offer. Tr. 754-755 The IEP’s notation that he required “support of special instruction in a general program with a smaller student-to-teacher ratio,” was explained to her as the class would be broken down into groups, although it was still in the same classroom setting and not removed to a separate area. Tr. 755-756 The IEP also noted that he was “very conscious of appearing different,” which she explained described his unwillingness to use manipulatives in the classroom, to read different books than his peers were reading, to share his work in morning meetings. The school made the keyboard available to the entire class, but he still knew he was the only one who really needed it. Tr. 756-757

She stated that she sent her son to __________ because they felt “stuck in between” the self-contained model that had not been appropriate in kindergarten and the co-teaching model in which his emotional needs and problems had gotten worse. Tr. 764 She stated that her son’s year at __________ was a very positive experience socially, emotionally, and academically. Within two weeks at __________, he started coming home, saying he loved school and his teachers, and had a lot of friends. He didn’t like missing school. The school encouraged him to do his homework independently, and he wanted to share the work he had done, something he had never done before. Towards the end of the year, they noticed his handwriting had improved dramatically, and they could read what he had written. She saw him reading billboards or menus, which had never happened before, and at night he would bring a book to her to share, and he would read stories to her. He no longer picks at his skin, and has not expressed suicidal ideation. Tr. 766-768 The tuition at __________ is which she and her husband have paid. Tr. 769

She observed him a class with one other child at __________, which allowed him to stay focused. He seemed to be happy and excited to be there, and to share his work with peers and teachers, as well as his parents. Tr. 769-770 Teachers at __________ told her they do occasionally have to refocus him for difficult tasks, but they work through it and the better he gets at this skill, it’s no longer an issue. They have never mentioned him shutting down. Tr. 770-771

__, __’s father, testified that the invoices reflect the amount he has paid to __________. Tr. 881-882; Ex. J He stated that he made an initial payment of −22− around May 18, 2009, which he understood to be nonrefundable. He called it “dead money.” The second payment of was made in June, and there was a “little bit of a question” on whether it was nonrefundable or not. He was told that if they decided to stay with the school system, the school would refund the money. The balance of was paid on November 24, 2009. He testified that the amount he thought he would lose if they accepted the placement was Tr. 883-885 When asked about the second payment, he later explained that when he received the contract he called the __________ office, and was told that if they had someone else to fill the spot they would refund that money; if a replacement couldn’t be found, he would lose it. Tr. 890

On cross examination, he agreed that the terms of the contract said the obligation to pay full tuition was unconditional unless cancelled by July 15, and agreed that he had not notified __________ by July 15 that he was canceling the application. Tr. 887 As of his letters of July 20 and August 3, 2009, he had not notified the district that he had made any payments to __________. Tr. 888-889; Exs. 32, 34 These letters indicated notice to the district that the parents were seeking a nonpublic school placement. __ agreed that the letter written on August 25, 2009 was the first time he notified the district that he had made a payment and would be seeking tuition reimbursement for his son at __________. Tr. 889

FINDINGS

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

It must be stated at the outset that analysis require separate review of the school district program and the program chosen by the parents. As far as the law is

−23− concerned, the two programs are not in competition and comparison is simply not relevant. Each program stands or falls on its own merits, depending on the underlying facts and in accordance with the standards applicable thereto.

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd. of Educ. v. Rowley, 458 U.S.176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. Application of a Child with a Disability, Appeal No. 07-008, Application of the Bd. of Educ., Appeal No. 06-076; Application of a Child with a Disability, Appeal No. 06- 059; Application of the Bd. of Educ., 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.

In this case, the district failed to sustain its burden that it had provided FAPE. To __. I agree with the district argument that the issues to be determined at the hearing are limited to those raised in the hearing request. Examination of the due process complaint notice provides the scope of permissible inquiry. The basis for the parents’ argument, as articulated in the hearing request, is that __ was not appropriately placed in a 12:1 integrated co-teaching class, and that he needed individualized attention in a class with a smaller teacher-student ratio, a smaller class size, and a distraction-free −24− environment to address his special education needs. It cited his need for refocusing and redirection as a particular concern. It also set forth that the IEP was not sufficient at addressing the child’s behavior and needs in relation to his consciousness of his deficits, arguing that he required a class with only children with similar learning disabilities to __. It also stated that he needed an aide during lunch and recess, and that denying him the aide amounted to a denial of FAPE. Ex. 1 The district’s recommendation, as set forth in the IEP of June 8, 2009, was for four hours daily in an integrated co-teaching class with a student-teacher ratio of 12:1, and related services of once a week for 30 minutes in a group, therapy six times monthly in individual sessions for 30 minutes per session, occupational therapy consult twice monthly for 30 minutes, therapy six times monthly in individual sessions and three times monthly in group sessions for 30 minutes per session, and consult twice monthly for 30 minutes. Ex.

In short, the recommendation was to continue the same inclusion program, the integrated co-teaching class the child had been in the previous year. The related service of counseling was a new addition for the 2009-2010 school year, and there were some changes in the amount of therapy and therapy. The IEP also eliminated enhanced staffing for lunch/recess in a 3:1 ratio, which had been provided in the 2008-2009 school year. Exs. 11, 12

Certainly, the outset, the recommendation did not provide the small teacher-student ratio or the small class size the parents desired. I note there was limited explanation of the program that was recommended for __ for the 2009-2010 school year. Ms. acknowledged that the parents expressed concerns about class size. Tr. 68-69 The IEP also noted that __ benefits from small group instruction. As early as 1st grade, the child’s IEP noted delays requiring him to be taught in a smaller teacher/student ratio with minimal distraction. His mother noted then that he was not able to concentrate in the larger setting as much, and was starting to fall behind educationally. Tr. 723-725 Until the 2008-2009 school year, the child’s class had been capped at eight students. Tr. 64-65; Exs. 8, 10, 11 At the 2nd grade, she asked if it was possible to take the group to another room to work in a small setting, but was told it

−25− wasn’t possible, it had to be done in the classroom. Tr. 751-752 The class recommended for the 2009-2010 school year was described as larger than the class the previous year, and when the parents voiced their concerns that it was too large a class, the response was that was all the district had to offer. Tr. 754-755 As the letter from __ detailing his objections to the district’s recommended placement said, “Although Ms.

said the district did not have an appropriate self-contained class such a class must exist somewhere.” Ex. 32 The IEP’s notation that he required “support of special instruction in a general program with a smaller student-to-teacher ratio,” was explained to her as the class would be broken down into groups. Yet he would be in the same larger classroom setting and not with a smaller ratio.

The record is clear about the child’s difficulties in the 2008-2009 school year. The evidence was overwhelming that the child had begun to keenly appreciate the difference between his abilities and those of his nondisabled peers. As reported by Ms. Kramer and Ms. , he was resistant to modifications the occupational therapist was putting in place. The IEP noted that he “has difficulty participating in activities that set him apart from his peers and this interferes with his accessing materials or instruction at times.” Tr. 54-58, Ex. 12 Ms. explained that counseling was added because __ had some difficulty in class accepting the modifications necessary to implement his IEP and make instruction accessible. She stated that the difficulty was not at the outset of the school year, but developed a few months into the year. She testified that she addressed the issue by making support universally available so he wouldn’t feel singled out. Tr. 211 She testified that his awareness of his deficits in the inclusion class affected him in that the supports put in place to make instruction accessible went largely unused because he was “exquisitely aware” that these were special things put in place to help him understand. He refused the modifications; he would just shut down. Tr. 229-230 She confirmed that she told the parents that __ would shut down during class when things became too difficult for him. She discussed that __ was not comfortable with having additional assistance because he felt that it made him feel different from his classmates. She discussed that at morning meetings he was not eager to share his written journal or reading with others. Tr. 224 According to Ms. , Ms. reported that there were times when he didn’t want to do a

−26− task, which she felt was because he was afraid of how it would look in front of his peers. He wouldn’t ask for support or help when he was in a larger classroom arena. Ms. Fonseca-Elias stated that how to address it depended on where a child was cognitively, although she didn’t specify how that applied to __. There was no behavior plan, formal or informal, in place. Tr. 464-468 He often shut down when given a task too difficult for him, requiring Ms. to constantly refocus him. It was undisputed that he didn’t want to use the manipulatives or a keyboard for writing, even though it was offered to the entire class, because he felt like he was different from everyone else. Tr. 737-739

In that regard, the specifics of his performance in the 2nd grade warrant consideration. Ms. stated that __ was in the solid middle in reading. Tr. 132 An educational evaluation of __, and the WIAT showed that he fell largely in the below average or low average range for his group, and she conceded that the scores in numerical operations and reading showed significant deficits. Tr. 164, 208-209; Ex. 27 In testing in May 2009, scored at the 2nd percentile in numerical operations, the percentile in spelling, the percentile in reading, the percentile in reading comprehension, and the percentile in written expression. Tr. 197-199; Exs. 12, 27 Ms. testified that he had become more aware of selecting appropriate text, and they were better able to match him with books of higher interest to him and books he felt more comfortable being seen by his classmates. Tr. 154 She testified that he made marked progress in decoding and his ability to express his comprehension and writing, In math, when he took advantage of manipulatives and having instruction in a smaller group. He was able to grasp concepts and employ them independently. Tr. 240 His reading was definitely not as consistent when reading independently as when working individually with the teacher or in a small group; as she testified, he needed constant redirection to attend. Otherwise he would be “kind of looking” to see if someone was watching or what the other kids were doing. Tr. 155-156 She stated that she often ended up working individually with __ because he would need more direct instruction. Comprehension was an issue, and he needed things broken down and monitored as he went, so it took a lot of individualized 1:1 attention. Tr. 133 These factors lend support to his need for instruction in a smaller class setting, with redirection and refocusing, away from distraction and away from the distraction of comparisons by __ with his

−27− nondisabled classmates.

For the main part of the 2nd grade school year, __ made numerous trips to the school nurse, complaining of feeling ill and picking at his skin until it bled. The nurse began calling the child’s mother, as he complained of being ill and wanting to come home. He repeatedly told __ that he was stupid, and on a couple of times he said he wanted to kill himself. Tr. 732-733 I credit the parent’s testimony that the skin picking was extensive, and school officials certainly knew of it – Ms. got him band-aids. Tr. 733-734, 742-749 Ms. confirmed sending __ to the nurse because he picked at his skin and caused it to bleed; and that he would often say he was ill so he could go to the nurse. Tr. 224 As __ testified, she discussed the with the school; no one from the school ever discussed the need for a behavioral plan to deal with these behaviors. Tr. 733-734 Ms. also recalled conversations about __ calling himself stupid and saying he wanted to himself. Tr. 224-225, 733-734, 742-749 Ms.

’s affidavit, while detailing four specific incidents regarding scabs in which __ came to the nurse’s office, did not provide any information concerning the total number of times he visited her office during the school year, for scabs or any other reason. Ex. 43 I do not credit Ms. ’s affidavit that she didn’t see __ picking scabs “a great deal in class,” which failed to specify what she considered a great deal or how often he actually did picked at scabs. That she made no connection “whatsoever” between the child’s scab picking and academic demands cast considerable doubt on the reliability of her opinion.

Her opinion that he had no social problems during the 2nd grade was also disputed by her own “Teacher Report” in June 2009 that __ “has to work really hard when time is unstructured. These are the times when he doesn’t know what to say or do if someone doesn’t want to play with him and he can become physical. He often doesn’t see his part in the problem and can only focus on what was done to him.” Ex. 31 Although Ms. ’s end-of-year narrative also cited his enjoyment of social interaction during group work and unstructured time, she explained that in the beginning of the year there was a little bit more sort of inappropriate social interaction during unstructured time, but as the year progressed it eased off. Tr. 159-160, 167-168; Ex. 31 She testified that his articulation and trouble reading cues presented social

−28− problems. Tr. 121-122 He still had inappropriate activity during instructional time, talking about unrelated things, and displaying behavior such as fidgeting or withdrawing from instruction. Tr. 230-231

According to Ms. ’s testimony, __ was seeing the psychologist periodically, as issues arose. Certainly she was aware that social-emotional goals, previously eliminated, had to be reinstated for the child. The IEP developed for the 2009-2010 school year, __’s 3rd grade year, included new social-emotional goals. The goals that were added, although general, addressed the avoidance displayed by the child. Counseling was added for the first time, and for the first time the child’s social-emotional goals were the responsibility of the school psychologist. Yet although Ms. recommended social-emotional goals be administered for the following school year, there was no meeting to amend his IEP as she “wasn’t sure he was going to absolutely need it until the rest of the school year.” She wanted them put on the radar for September. Tr. 479-480

Despite this, the recommendation was to continue the same inclusion program the child had had the previous year. I credit the opinion expressed by the parents when faced with the district’s recommendation for a co-teaching program for the 3rd grade, that it was going to be a continuation of what happened in the 2nd grade, that __ would realize the disparity between his educational abilities and those of his peers, which would continue to grow, and his self esteem would suffer and his ability to focus in the larger setting would be very difficult for him. Tr. 753-754; Ex, 12

As described above, counseling was added to his IEP to help him accept his learning differences and access the supports being provided him, and goals included to address that issue. Tr. 54-58, Ex. 12 I discount the parents’ argument that the IEP failed to specify the size of the group in which __ would received counseling. Ms. stated that she hoped through the counseling goals added to his IEP that __ would more readily accept modifications and broken down instruction and smaller groups to better support his learning. Tr. 241-242 Yet the mere addition of counseling was scarcely enough to address these needs; I note the admirable efforts of Ms. to offer universal accommodations in the class so the child would not feel different, and the failure of those efforts in the face of the child’s social-emotional issues. Yet, as she

−29− pointed out, he still refused the modifications, and supports to make instruction accessible went largely unused. As she characterized it, he was “exquisitely aware” that these were special things put in place to help him understand. Tr. 229-230 I note also Ms. testimony that how to address these issues depended on where a child was cognitively, but she didn’t specify how that applied to __. The district did not address it at all. The district issued these goals, but offered no plan on how they were to be achieved. There was no behavior plan, formal or informal, in place, nor was one contemplated. Tr. 464-468

It should be noted that the elimination of the aide did not contribute to my finding that the child was denied FAPE. As for the provision of “enhanced staffing” for __, which was eliminated for the 2009-2010 school year, according to Ms. the program was changed and the school building given an additional aide support for every co-teaching class, thus staff was available to __ if he needed it. While her description of the program change hardly constitutes a change based on his individual needs, specifically his social-emotional needs, I credit her statement that __ did better without someone hovering, which was consistent with the testimony of Ms. that the aide reported her belief that he acted out to gain attention. Tr. 127-128

Finally, I discount the district’s argument that __’s placement was warranted by the requirement that the child be placed in the least restrictive environment. It quotes the IDEA mandate that disabled students be educated with nondisabled children to the maximum extent appropriate and may only be removed to a more restrictive environment when the nature and severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 USC 1412(a)(5)(A); Oberti v. Bd. of Educ., 995 F2d 1204 (3rd Cir. 1993); Briggs v. Bd. of Educ., 882 F2d 688 (2nd Cir. 1989). The evidence of this child’s 2nd grade year is abundantly clear that this child could not be educated satisfactorily with supplementary aids and services in the integrated co-teaching class.

For all the foregoing, I find that the district failed to provide FAPE for __.

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of the Burlington decision, Petitioners bear the burden of proving the appropriateness of the services they seek for __. M.S. v. Board of

−30− Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the __________ School offered an educational program designed to meet __’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29.

In this regard, I find that Petitioners have sustained their burden. In the first place, the school offered uniformly small classes, some with no more than two students and others with eight students. The program described by Ms. addressed reading, writing, math, speech and language, and social-emotional areas for __. Classes were geared to his instructional level; when the math class he was initially placed in was deemed too fast for him, the school immediately switched him into a class more suited to his level and needs. In reading and math, he was placed with children at the same level and with the same issues as him. The program included several classes designed to deal with his language issues and his social-emotional issues in tandem, including a daily tutorial in reading, an oral language class dealing with pragmatic language goals, and speech and language services on both a push-in and pull-out basis. A daily writing class worked in a coordinated program with the tutorial teacher on his fine motor skills. All his teachers were certified in special education, either in __________, or in __________ and New York. Tr. 509-511, 521, 523-524, 530-532

Progress was reported by the adviser, who told Ms. that __ became comforted by the structured routine of the program in the first months of school, and by December was beginning to participate more actively in class. I note that in math he was working on simple addition using manipulatives, which he had refused to do in his prior class. There was also progress cited in the writing class, where he was using specialized pencil grip and paper to form legible letters. The teacher in the oral language class reported that he was much more comfortable participating in role playing and games, and approaching his peers outside the classroom using the strategies introduced in class. In the core class, the teacher reported that __ was very interested

−31− in the materials; he still required a lot of redirection and language broken down, but was very interested in the material. Tr. 544-549

Ms. ’s own observations confirmed that in May 2010, __ was actively engaged in class, had moved up a level in reading and was doing an oral reading piece with his partner in the tutorial class. She described him as very engaged and enthusiastic, wanting to show off his work. She also observed him in his writing class when he was producing much more writing, reflecting progress from struggling to produce legible words in isolation. Tr. 549-551

__’s testimony supported this assessment. She cited __’s handwriting, which had improved dramatically; for the first time, his parents could read what he had written. She also saw him reading billboards and menus, which had never happened before, and at night he would bring a book to her to share and read stories to her. The small class with one other child at __________ allowed him to stay focused. I credit her conclusion that he seemed to be happy and excited to be there, and to share his work with peers and teachers, as well as his parents. He no longer picks at his skin, and has not expressed suicidal ideation. Teachers at __________ told her they do occasionally have to refocus him for difficult tasks, but they work through it and they have never mentioned him shutting down. Tr. 766-771

Finally, I note that district’s argument that the school did not provide __ with the least restrictive environment (LRE). Certainly, Ms. ‘s testimony made clear that the school was designed for children with language-based learning disabilities; certainly it was a school where small individualized classes were provided for __. I find the argument inapplicable in this situation. Under the law parents are not held to the same standard as school districts. While parents are not held as strictly to the standard of placement in the least restrictive environment as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27; M.S. v. Bd. of Educ., 231 F.3d at 105. The requirement of instruction in the least restrictive environment must, however, be balanced against the requirement that each student with a disability receive an appropriate education. Briggs v. Bd. of Educ., 882 F.2d 688, 692 (2d Cir. 1989). −32−

Given the specific deficits shown by the child during the previous year, including his extreme emotional behaviors and the deficits not only portrayed but exacerbated in large group settings, I cannot find any support in the record for the placement at __________ to be faulted as not providing the least restrictive environment. Clearly the child needs a small class setting, which is where he did better, and clearly as well, he needs to be with students who do not make him feel inadequate because of his shortcomings.

For all the foregoing, I find the Petitioners have met their burden of demonstrating the appropriateness of __________ for __.

ISSUE 3 - Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded.

The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

The district argued that the parents’ action in contracting with __________ without informing the school distirct showed they had no intent to allow __ to attend school in

I credit the testimony of __ that he was risking loss of only the initial payment of had the district offered an appropriate placement. Tr. 883-885, 890 I note also letters to the district stating their dissatisfaction and putting the district on notice that they would be looking elsewhere, on July 20, 2009, and documenting a meeting in August 10, 2009 in which they discussed __’s proposed placement at a nonpublic school, including __________. Exs. 32-

I find that the parents cooperated with the district and analysis reason under this prong of Burlington/Carter would not require a ruling against them.

DECISION ORDER

Based upon the foregoing, Petitioners’ application for reimbursement for tuition −33− for __ at __________ School for the 2009-2010 school year is granted.

The district is ordered to reimburse the parent for __’s tuition at the __________ School for the 2009-2010 school year in the amount of

IT IS SO ORDERED.

_____________________________ Nancy M. Lederman

Impartial Hearing Officer

Date: February 28, 2011

PLEASE TAKE NOTICE

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

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

APPENDIX A

W ITNESSES

District

, Director of Special Education

, Special Education Teacher

, Pathologist

, Therapist

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, School Psychologist

Parent

, former Director of Admissions, __________ School __, mother __, father

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APPENDIX B

EVIDENCE

District Exhibits 1 Impartial Hearing Request, 9/15/09, 6 pages 2 Answer to Complaint Letter with attachments, 11/30/09, 26 pages 3 IEP, 6/14/06, 7 pages 4 Parental consent letter agreeing with proposed IEP amendment, 3/14/07, 3 pages 5 IEP, 3/15/07, 8 pages 6 IEP, 3/30/07, 13 pages 7 Parental consent letter agreeing with proposed IEP amendment, 10/31/07, 2 pages 8 IEP, 11/01/07, 14 pages 9 Parental consent letter agreeing with proposed IEP amendment, 1/3/08, 2 pages 10 IEP, 1/4/08, 12 pages 11 IEP, 3/14/08, 10 pages 12 IEP, 6/8/09, 11 pages 13 IEP, 8/27/09, 12 pages 14 Evaluation, , 7/14/04, 10 pages 15 Educational Evaluation, , 7/15/04, 2 pages 16 Psychological Evaluation, , 7/15/04, 4 pages 17 Social History, , 7/15/04, 3 pages 18 CPSE Physical Therapy Evaluation, , PT, ½5/05, 4 pages 19 Psychological & Educational Report with Observations, , 4/27/06, 5

Therapy Annual Progress Report, , 5/12/06, 6 pages 21 Triennial Social History Update, , 5/15/06, 2 pages 22 Physical Examination Certificate, 8/29/08, 1 page 23 Classroom Observation, 10/28/08, 1 page 24 Social and Developmental History Triennial Update, , 11/6/08, 2 pages 25 Psychological Evaluation, , 3/27/09, 3/30/09, 5 pages 26 Therapy Triennial Evaluation, , 4/23/09, 4/30/09, 3 pages 27 Educational Evaluation, , 5/18/09, 4 pages 28 Speech and Language Evaluation Triennial Review, , 5/20/09, 4 pages 29 Grade K Achievement Report, 2006-2007, 13 pages 30 Grade 1 Achievement Report, 2007-2008, 11 pages 31 Grade 2 Achievement Report, 2008-2009, 25 pages 32 Letter parent to , 7/20/09, 1 page 33 Letter, to parent, 7/27/09, 1 page 34 Letter, parent to , 8/3/09, 1 page 35 Letter, to parent, 8/11/09, 1 page 36 Letter, parent to , 8/25/09, 1 page −36− 37 Letter, to parents, 8/26/09, 1 page 38 Letter, to parents, 8/28/09, 1 page 39 Class Profile, 2009-10, 1 page 40 __________ School Testing, 3 pages 41 Psychological Evaluation, 5/30/08, 20 pages 42 Affidavit, , 10/22/10, 2 pages 43 Affidavit, , 10/22/10, 2 pages

Parent Exhibits A Letter, Head, __________, 12/01/09, 1 page B Letter, Educational Advisor, __________, 12/09, 2 pages C Articulation Progress Report, __________, 12/09, 2 pages D Tutorial I Progress Report, __________, 12/09, 4 pages E Math Progress Report, __________, 12/09, 4 pages F Writing Progress Report, __________, 12/09, 3 pages G Oral Language Progress Report, __________, 12/09, 4 pages H Core Progress Report, __________, 12/09, 4 pages I Elementary Classroom Teacher Report, __________, 6/01/09, 1 page J 2009-2010 Contract, __________, 5/14/09, Bank Statements, 10/14/09, 4/13/10, 4 pages K Classroom Observation, 4/6/10, 2 pages L Tutorial I Progress Report, __________, 6/10, 4 pages M Core Progress Report, __________, 6/10, 4 pages N Writing Progress Report, __________, 6/10, 3 pages O Oral Language Progress Report, __________, 6/10, 4 pages P Math Progress Report, __________, 6/10, 4 pages Q Articulation Progress Report, __________, 6/10, 2 pages R Speech and Language Progress Report, __________, 6/10, 1 page S Affidavit, __, 10/28/10, 7 pages

IHO Exhibits (post hearing) I Decisions on Extension of Deadline for Decision, 12/1/09 - ½5/11, 15 pages

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