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.

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 IEPs and placement recommendations made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for the 2007/08, 2008/09, and 2009/10 school years. The Parents seek tuition reimbursement for the Student’s placement at the XXXX School, a private school located in XXXX. They seek declaratory findings that the District failed to provide the Student with a program of special education and related services that appropriately addressed XXXX and XXXX and allowed XXXX to make meaningful progress, and that the District failed to provide the Student with a free appropriate public education during the 2007/08, 2008/09, and 2009/10 school years. They also seek tuition reimbursement for the Student’s unilateral placement at the XXXX School during the 2009/10 school year. In addition, they ask for attorneys’ fees and costs (Ex. IHO-6).

The District denies the allegations contained in the Parents’ Due Process Complaint Notice and asserts that the programs recommended by its CSE for the 2007/08, 2008/09, and 2009/10 school years were appropriate and reasonably calculated to provide the Student with meaningful educational progress in the least restrictive environment. The District also asserts that it acted in compliance with the procedural and substantive requirements of the Federal Individuals with Disabilities Education Act and New York State Education Law and the implementing regulations. In addition, the District asserts that it offered the Student a free appropriate public education for the 2007/08, 2008/09 and 2009/10 school years; that the XXXX School is neither appropriate nor in the least restrictive environment; and that equitable considerations do not support the Parents’ claim for reimbursement for the 2009/10 school year. The District submits that the claims for the 2007/08 school year and earlier are time-barred by the two-year statute of limitations. The District also reserved its right to seek attorneys’ fees against the Parents should it prevail at the hearing (Ex. IHO-7).

PROCEDURAL HISTORY

On September 23, 2009, the Parents requested an Impartial Hearing seeking tuition reimbursement for their unilateral placement of the Student in the XXXX School, a private school located in XXXX. They alleged that the IEP that was developed by the District for the Student for the 2009/10 school year was procedurally invalid and substantively inappropriate. They also alleged that the District failed to offer the Student a free appropriate public education during the 2007/08, 2008/09, and 2009/10 school years; that the District failed to provide the Student with a program of special education and related services that appropriately addressed XXXX and XXXX and allowed XXXX to make meaningful progress; that the Parents cooperated with the CSE in all respects during the relevant time period; that the Parents are entitled to tuition reimbursement for the Student’s unilateral placement in the XXXX School during the 2009/10 school year; and that the Parents are the substantially prevailing party and are entitled to attorneys’ fees and costs (Ex. IHO-6).

On September 25, 2009, the IHO was advised that she was selected to act as Impartial Hearing Officer. In letters dated September 29, 2009 and October 1, 2009, the IHO received written confirmation of her appointment (Exs. IHO-1, IHO-2, IHO-3, IHO-4).

On November 3, 2009, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Several potential tentative hearing dates were scheduled (Exs. IHO-8, IHO-9).

There were a total of 20 days of hearing in this matter. The first day of impartial hearing was held on February 24, 2010. Additional hearings were held on March 3, March 15, April 7, April 21, April 30, May 10, May 12, May 17, May 19, May 24, May 25, May 26, June 21, June 22, June 24, July 19, July 27, July 23, and July 30, 2010 (R. 1, 280, 513, 734, 939, 1179, 1266, 1520, 1726, 1940, 2145, 2504, 2660, 2827, 3063, 3249, 3419, 3515, 3696, 3773).

The District presented 6 witnesses on its direct case. The Parents presented 4 witnesses on their direct case. The District presented 2 witnesses on its rebuttal case. The transcript is 3,870 pages in length. The District submitted a total of 82 exhibits. The Parent submitted a total of 36 exhibits. The Impartial Hearing Officer submitted a total of 27 exhibits. The Impartial Hearing Officer granted a total of 19 requests for extension of the 45 day rule (Exs. IHO-10, IHO-11, IHO-12, IHO-13, IHO-15, IHO-16, IHO-17, IHO-18, IHO-19, IHO-20, IHO-21, IHO-22, IHO-23, IHO-24, IHO-25, IHO-26, IHO-27, IHO-28, IHO-29). The record close date in this case was extended through and including June 9, 2011, and the IHO’s decision was due on June 22, 2011 (Ex. IHO-29). Both parties submitted post-hearing memoranda of law.

ISSUES

In the Parents’ Due Process Complaint Notice, it is stated that the CSE’s placement recommendation for the 2008/09 school year did not provide the Student with XXXX and provided XXXX, a reduction in service from the 2007/08 school year, despite the Student’s XXXX during the 2007/08 school year, and triennial evaluations revealing XXXX. Moreover, XXXX, and XXXX. It also states that IEP Progress Reports from the 2008/09 school year indicated that XXXX and that, as a result, the Parents obtained XXXX to determine the source [and] extent of XXXX and XXXX. The Parents assert that although the CSE convened to review the results of the evaluation, it failed to incorporate any recommendations contained in the Parents’ evaluation (Ex. IHO-6).

The Parents further allege in their Due Process Complaint Notice that the CSE reconvened for the Student’s annual review for the 2009/10 school year on March 24, 2009 and, despite the Parents’ request for XXXX, the CSE XXXX. The Parents contacted the District indicating that they did not fully understand the CSE’s recommendations and requested a follow-up meeting for clarification. The CSE reconvened on May 6, 2009 and recommended XXXX.

At the outset, I note that the Parents challenge the appropriateness of the Student’s educational placement for the 2008/09 school year, while XXXX simultaneously testified XXXX (R. 2871-2876; Ex. SD-4). XXXX also testified that the Student XXXX. XXXX stated just the opposite in the information XXXX provided on the XXXX (R. 3344-3349, 3386-3388, 3390; Exs. SD-3, SD-79). The Parents stated their belief that the Student’s needs “could and should” be met in a less restrictive environment. They allege that they were denied the opportunity to meaningfully consider the CSE’s recommendations and, XXXX. The Parents thereafter determined to enroll the Student at the XXXX School for the 2009/10 school year (Ex. IHO-6).

In the District’s Answer to the Demand for Due Process, it is alleged that each of the educational programs recommended for the Student for the 2007/08, 2008/09, and 2009/10 school years were appropriate and reasonably calculated to provide the Student with meaningful educational progress in the least restrictive environment, based on XXXX. It details each of the CSE recommendations made for the Student for each school year at issue in the Parents’ complaint. It is also asserted that the District acted in compliance with the procedural and substantive requirements of the IDEA and New York State Education Law; that the District “provided/offered [the Student] with a free appropriate public education for the 2007/08, 2008/09, and 2009/10 school years,” that “the XXXX School is neither appropriate nor in the least restrictive environment,” and that “equitable considerations do not support the parents’ claim for reimbursement for the 2009/10 school year.” The District also asserts that claims relating to the 2007/08 school year and earlier are time-barred, a fact to which the parties stipulated at the Impartial Hearing (R. 23-25, 3754-3755, 3835-3840; Ex. IHO-7).

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX years old. XXXX is classified as a student with XXXX. XXXX has been diagnosed with XXXX. The Student was born

XXXX. XXXX was also born with XXXX. XXXX received XXXX for XXXX and XXXX underwent XXXX. XXXX was XXXX. Developmentally, the Student was XXXX. XXXX required XXXX. XXXX were late, and XXXX began to receive intervention at XXXX (Exs. SD-11, SD-25, SD-25A, P-X).

The Student has XXXX. XXXX also has XXXX. Cognitively, the Student’s Full Scale Intelligence Quotient was measured in XXXX, in the XXXX which was once

XXXX. The Student exhibited XXXX. In the XXXX, the Student demonstrated XXXX. On the XXXX, the Student performed in XXXX. In the XXXX, the Student fell within the XXXX. In the XXXX, the Student scored in the XXXX. Overall, the Student exhibited

XXXX. The Student benefits from XXXX (Ex. SD-14).

The Student demonstrates particular difficulties in XXXX, as well as in the areas of XXXX and XXXX. The Student also has deficits in XXXX, and XXXX has difficulty with XXXX. XXXX has poor XXXX. XXXX also has difficulties with XXXX. Academically, the Student is XXXX. Although the Student is able to XXXX, XXXX has difficulty with XXXX. XXXX is also XXXX. XXXX has XXXX, XXXX, and XXXX, as well as XXXX. XXXX also has difficulties with XXXX (R. 573, 470-473, 861-864, 1369-1376, 1546, 1567-1572, 2764-2766; Exs. SD-5, SD-12, SD-13, SD-14, SD-15).

The documentary record is sparse with information regarding services received by the Student as part of XXXX. During the XXXX school year, the Student attended

XXXX. XXXX qualified for XXXX, and it appears that XXXX. XXXX were reportedly XXXX as of XXXX, and XXXX were discontinued prior to XXXX (Ex. SD-11).

The Student was initially referred to the District’s CSE as a XXXX student during the XXXX school year. The CSE met on XXXX, and recommended XXXX. Commencing with the XXXX school year, XXXX was recommended for placement in the District’s XXXX XXXX School in its XXXX, a XXXX, together with XXXX. XXXX was recommended due to XXXX. XXXX was recommended for XXXX, and XXXX. XXXX was also recommended to XXXX. XXXX were recommended in the XXXX. Support for XXXX (R. 64, 66-67; Ex. SD-11).

On XXXX, the CSE Subcommittee (hereinafter referred to as the “Sub-CSE”) reconvened. It discontinued XXXX, as the Student XXXX. However, the Sub-CSE added XXXX to address XXXX. The Student reportedly had XXXX and XXXX. It was reported that XXXX. He also received XXXX. Annual goals and short-term objectives were added in XXXX area (R. 64, 68-69; Ex. SD-10).

The Sub-CSE reconvened on XXXX for the Student’s Reevaluation Review. The Student was found XXXX. Following an XXXX, the Sub-CSE recommended XXXX, to address XXXX (R. 63, 72-74; Exs. SD-9, SD-22).

The Sub-CSE also reconvened on XXXX for the Student’s Annual Review for the XXXX school year. It continued to recommend XXXX, and continued to recommend placement in the XXXX at the XXXX School, with XXXX. XXXX included XXXX. XXXX was discontinued. The Student was also recommended for XXXX. XXXX continued to receive XXXX. XXXX was also found eligible for XXXX. The Sub-CSE recommended annual goals and short-term objectives in the areas of XXXX (R. 63, 74-75; Ex. SD-8).

On XXXX, the Sub-CSE convened for the Student’s Annual Review for the XXXX school year. It continued to recommend XXXX. XXXX recommended placement changed to XXXX based on a request from the Parents that XXXX. Based on discussion, teacher and therapist reports, and classroom assessments, it was recommended that XXXX, in an attempt to reach consensus with the Parent. Recommended XXXX. XXXX was discontinued. The Student continued to be recommended for XXXX, and XXXX. XXXX continued to be recommended for XXXX. The Sub-CSE added XXXX, due to XXXX. The Sub-CSE recommended Annual Goals in the areas of XXXX (R. 63, 75-80; Ex. SD-7).

On XXXX, the Sub-CSE convened for the Student’s Annual Review for the XXXX school year. It continued to recommend classification for the Student as XXXX and placement in XXXX at the XXXX School XXXX. XXXX included XXXX. XXXX were discontinued. The Student continued to be recommended for XXXX. XXXX also received XXXX. XXXX continued to include XXXX. The Sub-CSE also added XXXX. The IEP included Annual goals in the areas of XXXX (R. 62, 80-90; Ex. SD-6).

The Sub-CSE reconvened on XXXX for the Student’s Reevaluation Review and to review XXXX progress to date. There was significant discussion about XXXX. There was also discussion about the Student’s XXXX. The Sub-CSE recommended a change in the Student’s XXXX, as part of the XXXX, XXXX. The Parents voiced concern over the change since the Student was XXXX, but after discussion, they agreed to XXXX. On cross-examination, XXXX, the District’s XXXX, stated that the Sub-CSE reviewed the results of XXXX, which contained XXXX in determining to make the change. The Sub-CSE also XXXX. It restored XXXX. The Sub-CSE added XXXX (R. 62, 91-98, 344-345; Ex. SD-5).

On cross-examination, XXXX described the difference between the XXXX and the XXXX. XXXX stated that in the XXXX, the XXXX curriculum is followed. In the XXXX, the emphasis is XXXX, and XXXX. Students who are able to XXXX. XXXX stated that the XXXX (R. 345-347).

On XXXX, the Sub-CSE convened for the Student’s Annual Review for the XXXX. It recommended placement in XXXX at the District’s XXXX School XXXX. On cross-examination, XXXX stated that she did not know why the Sub-CSE did not continue to recommend the XXXX for the Student. She did state, however, that the Student was XXXX. The Sub-CSE continued its recommendations for XXXX. XXXX was discontinued based upon discussion with XXXX. The Sub-CSE recommended

XXXX. On cross-examination, XXXX stated that the XXXX. She also stated that the purpose of the XXXX. The Sub-CSE also provided for XXXX, in addition to XXXX. XXXX continued to include XXXX. XXXX continued to include XXXX. The Sub-CSE discontinued XXXX (R. 61-62, 98-100, 102-105, 357-361, 365, 367, 372; Ex. SD-4).

On XXXX, the Sub-CSE met at the Parents’ request to XXXX. The Parents also requested XXXX. It added XXXX (R. 60-61, 105-107; Ex. SD-3).

On XXXX, the Sub-CSE met for the Student’s Annual Review for the XXXX. The participants discussed XXXX. There was discussion about XXXX in the XXXX, but the Parents felt that XXXX, and the Sub-CSE agreed that XXXX. Less restrictive options were discussed and the Sub-CSE ultimately recommended XXXX. The focus of the XXXX is XXXX. Students in the XXXX, but XXXX. The students in the XXXX have XXXX. The Student would have participated in XXXX that was individually designed in an attempt to work with the Parents, who were not in favor of XXXX. The Sub-CSE continued to recommend XXXX. It removed XXXX. XXXX continued to be XXXX. XXXX continued to include XXXX. The Sub-CSE added XXXX. XXXX continued to include XXXX. At the Parents’ request, the Student’s XXXX. Annual goals were recommended in the areas of XXXX. The minutes indicate that the Parents were tentatively supportive of the recommendations and if they changed their minds, they would request another Sub-CSE meeting (R. 60, 108-116; Ex. SD-2).

On XXXX, the Sub-CSE reconvened at the Parents’ request for a Program Review. It ultimately recommended XXXX. It changed its recommendation for XXXX. It continued to recommend XXXX. Recommendations for XXXX remained the same (R. 56-57; Ex. SD-1).

The Student was ultimately unilaterally placed by XXXX Parents in the XXXX School for the 2009/10 school year (R. 214-216, 220-222; Exs. SD-34, SD-35, SD-36, SD-44, SD-46).

XXXX is the District’s XXXX. Her job duties include XXXX. She testified regarding her employment prior to the District, which included duties as XXXX. XXXX is multiply certified in the area of XXXX, as a XXXX, and in XXXX. She is also taking courses toward a doctoral degree in XXXX. She is a member of various professional education-related organizations. On cross-examination, XXXX testified that she is not XXXX and that she never taught in a public school (R. 37-47, 322-323).

XXXX stated her familiarity with the Student. She chaired two of XXXX CSE meetings when XXXX was a student at both XXXX and XXXX schools and she observed XXXX in class settings at both schools. On cross-examination, she stated that she has not observed the Student’s XXXX firsthand. She described the Student as possessing XXXX. She stated that the Student has XXXX, with XXXX. She described XXXX strengths in XXXX, and described XXXX as a hard worker. XXXX stated that the Student had attended XXXX (R. 47-49, 325-326).

XXXX testified that as of the time of the CSE meeting held on May 6, 2009, the Student had XXXX. XXXX made progress in XXXX (R. 54-55).

XXXX chaired the Student’s CSE Re-Evaluation Review on January 3, 2008 and XXXX Program Review that was held on May 6, 2009 (R. 65; Exs. SD-1, SD-5).

XXXX testified that the Sub-CSE’s recommendations made on March 24, 2009 were made based upon the progress that the Student was making, but it felt that he needed more XXXX, and they recommended XXXX. She described the XXXX. The ability levels of the students vary. Students in the XXXX have XXXX. The teacher uses

XXXX. She described the other students in the XXXX as having XXXX (R. 127-130). XXXX testified regarding the Program Review that she chaired on May 6, 2009. She stated that the meeting was held at the Parents’ request in regard to questions they had about the recommendations that were made at the annual review held on March 24, 2009. The Sub-CSE also considered the Student’s performance since the Annual Review in March 2009. There were concerns regarding XXXX. There were also discussions at the May meeting regarding XXXX. The Parents stated their concern for XXXX. The Sub-CSE felt that given the XXXX, that the XXXX “was the most appropriate placement for XXXX ... which would allow XXXX to receive XXXX and also have XXXX.” XXXX explained that the XXXX had XXXX. XXXX stated that the Parents indicated surprise about the change in recommendation, and the school psychologist who chaired the March meeting did not understand their surprise since the XXXX program was discussed, but not recommended, at the March meeting. She stated that following the March meeting, the Parents sent an e-mail to District staff expressing that the recommendations made at the meeting were XXXX. XXXX testified that she believed the XXXX would XXXX (R. 130-132, 134-138, 144; Ex. SD-49).

XXXX reviewed the XXXX that was conducted in October 2007 and confirmed the Student’s XXXX. XXXX was a relative strength for the Student. She also reviewed the XXXX that was conducted in October 2007 as part of XXXX triennial. She confirmed the Student’s XXXX. XXXX also had a deficit in XXXX which was confirmed by XXXX. XXXX had some strengths in XXXX, but XXXX demonstrated weaknesses in XXXX (R. 148-152, 1119-1123; Exs. SD-12, SD-13).

XXXX also reviewed XXXX that was conducted in September and October 2007 as part of the Student’s triennial. The Student’s XXXX. XXXX also XXXX. XXXX

XXXX. XXXX fell within XXXX. XXXX is considered to be XXXX. XXXX demonstrated XXXX that was consistent with prior testing (R. 153-158, 294-296; Ex. SD-14).

XXXX next reviewed the XXXX that was conducted in September 2007. The Student scored XXXX in XXXX, which was consistent with XXXX classroom performance. XXXX and XXXX were both XXXX. XXXX also had XXXX, as measured by XXXX. XXXX scored in the XXXX range in XXXX, which was based upon XXXX. XXXX also performed in XXXX in the XXXX (R. 159-161; Ex. SD-15).

XXXX also testified regarding an observation that was conducted as part of the Student’s triennial evaluation. It detailed the use of XXXX by the Student to provide XXXX with XXXX in connection with a XXXX. XXXX also reviewed XXXX completed by the Parent and noted comments made with respect to XXXX. The Parent noted that the Student’s progress over the last three years was “XXXX.” The Parent also noted that the Student performs best in XXXX and that although the XXXX have a positive effect on the Student’s XXXX, there was concern that XXXX. XXXX also reviewed the Student’s Health Inventory that was completed in September 2006 (R. 161-163, 165-168; Exs. SD-16, SD-17, SD-18).

XXXX also reviewed a series of documents which made up the Student’s previous triennial evaluation. She reviewed a XXXX that was conducted in March 2005. In the subtest of XXXX the Student functioned consistently at XXXX. A comparison of the Student’s performance on the XXXX in 2005 and 2007 shows that on the XXXX. In the subtest of XXXX. In the subtest of XXXX. In XXXX, the Student’s performance

XXXX. The Student’s performance on the subtest of XXXX. In the subtest of XXXX. In the subtest of XXXX, the Student’s performance XXXX. A review of the results of the XXXX and the XXXX reflects XXXX (R.168-171; Exs. SD-13, SD-19).

XXXX also reviewed the Student’s Triennial XXXX that was conducted in 4 separate sessions during 2005. The XXXX was performed, and it is not able to be compared to the tests conducted in 2007. In 2005 XXXX scored XXXX. The Parent and the teacher also completed XXXX. The Parent XXXX. The teacher XXXX. The score of most concern was on the XXXX, in that the Student XXXX. XXXX also reviewed an observation that was conducted in 2005 during a XXXX (R. 171-176, 180; Exs. SD-14, SD-20, SD-21).

XXXX testified regarding an XXXX that was conducted in March 2005. At that time, the Student demonstrated XXXX. There was also concern over XXXX. A comparison of the Student’s test results on the XXXX shows that in 2005 on the XXXX the Student received a XXXX. In 2007, the Student’s standard score XXXX. On the XXXX, in 2005 the Student received XXXX. In 2007, the student received a standard score XXXX (R. 180-183; Exs. SD-14, SD-22).

XXXX also reviewed the Student’s XXXX conducted in 2005. XXXX scored within the XXXX, in the area of XXXX, and XXXX scored in the XXXXX. The teacher felt that the score was an overestimation of XXXX ability due to the fact that XXXX. The Student also had XXXX (R. 83-185; Ex. SD-23).

XXXX reviewed a XXXX that was obtained independently by the Parents in November and December of 2008. She noted that portions of the document on the first and third pages were blacked out, and that the document was received in that form by XXXX, the District’s XXXX. XXXX stated that a series of test were conducted, and that some of the tests that were conducted were particular subtests and not a complete battery. The Student was diagnosed with XXXX, XXXX, and XXXX with some concerns over XXXX and XXXX. The deficits noted in XXXX were consistent with the District’s test results. The report contained recommendations regarding specific teaching strategies, which were reviewed by the Sub-CSE and contrasted with the services XXXX was receiving through the District’s program. As the result of XXXX noted in the report, the Sub-CSE increased XXXX to include XXXX, which had previously been addressed in XXXX. There was a recommendation for XXXX due to XXXX. XXXX were measured again within the XXXX, consistent with the District’s testing, and XXXX XXXX was XXXX. XXXX were reported to be in the XXXX, but that was for the area of XXXX. XXXX had some significant XXXX, which was consistent with XXXX classroom performance. XXXX skills were deemed to be in the XXXX, a relative XXXX (R. 192-197; Ex. SD-25).

XXXX also reviewed the Student’s Health Inventory from 2005 and noted nothing significant in regard to medical or allergies, but that the Student was diagnosed with XXXX. She also reviewed a series of teacher report forms. The forms are a mechanism that the District uses to gain progress reports from all of the teachers and providers that worked with the Student. The forms are collected and reviewed at child study team meetings and by the CSE. XXXX testified that the teacher report forms reflect XXXX. It also indicates XXXX. There was consistent home support and ongoing dialogue between the teacher and the Parent (R. 198-206; Exs. SD-26, SD-27, SD-28, SD-29, SD-30, SD-31).

XXXX reviewed an XXXX dated March 21, 2009 that was considered as part of the Student’s Annual Review. Administration of the XXXX yielded a standard score of XXXX. XXXX were assessed using the XXXX. XXXX earned a standard score of XXXX. The Student continues to have difficulty with XXXX, as measured by outside testing provided by the Parents. The Student’s functioning was XXXX. It was recommended that the Student XXXX (R. 206-209; Exs. SD-25A, SD-32, P-X).

XXXX testified that the Student would have had XXXX had XXXX attended the XXXX program for the 2009/10 school year, XXXX, identified as XXXX. Depending on XXXX progress in the XXXX, XXXX could have XXXX (R. 223-224; Ex. SD-1).

XXXX stated her opinion that the XXXX class was appropriate for the Student because it is XXXX. She stated that based on XXXX, it was the most appropriate program in which to place XXXX. She stated her agreement with the XXXX recommended for the Student, XXXX, to address XXXX and XXXX. She was also in agreement with the recommendation for XXXX in addition to XXXX (R. 226-228; Ex. SD-1).

XXXX also stated her agreement with the Sub-CSE’s recommendation for XXXX, to include XXXX, given the Student’s issues with XXXX. The Student did not attend the recommended program in XXXX. She also stated her opinion that each of the XXXX and XXXX were appropriate for the Student, and that XXXX relies heavily on and utilizes each of them on a regular basis when XXXX is being provided with instruction, including XXXX. XXXX also stated her agreement with the XXXX that were listed in the IEP, and stated that XXXX (R. 228-234; Ex. SD-1).

XXXX reviewed the goals and stated that the Sub-CSE agreed they were appropriate and based upon XXX evaluations. The Parent voiced concerns about the XXXX program and polled the Sub-CSE about the recommendation. Each member had an opportunity to speak and the consensus was that the XXXX was the most appropriate program. In an e-mail, the Parents stated their disagreement with the XXXX program and their acceptance of the prior recommendations made by the SubCSE at the March 2009 meeting, which was no longer the Sub-CSE’s recommendation. On cross-examination, XXXX testified that she did not respond to the Parents’ e-mail and that there were no communications between her and the Parents from the date of the e-mail until the Parents’ receipt of the IEP in August 2009 (R. 234-238, 332-335; Exs. SD-1, P-B).

XXXX testified that at no time did the Parents indicate to her that they would not privately place the Student at the XXXX if the CSE changed its recommendation back to that which was recommended at the March 2009 meeting. She stated that in fact, the Parents never communicated to her that they were seeking an out-of-district placement, and when XXXX asked the Parents at the May 2009 CSE meeting if they were interested in an out-of-district public placement, they said no. She did know, however, that some inquiry had been made by the Parents for an out-of-district placement based on their requests for educational records to be sent to the XXXX and the XXXX (R. 239-244; Exs. SD-44, SD-46, SD-50).

XXXX stated her familiarity with the XXXX School by virtue of a visit she made to the school with XXXX in the 2008/09 school year to observe another student who was privately placed by his or her parents. She spent approximately 3 hours observing the classes and saw that student in a XXXX, and she had an opportunity to speak with some of the staff members. On cross-examination, XXXX stated that it was a XXXX grade classroom, and she never spoke with anyone at the XXXX School in regard to this Student. In addition, she did not know what percentage of students in the XXXX program had IEPs, and she stated her familiarity with the curriculum, based on research she conducted and conversations she had, that it XXXX. XXXX stated her opinion that this Student does not need a private school placement in order to learn. She felt that XXXX was too restrictive for the Student, and that placement in the XXXX class in the public school would XXXX. Moreover, if he XXXX. In addition, XXXX (R. 284-290, 313, 320-322).

XXXX testified that the XXXX class has XXXX. Moreover, XXXX. She stated her belief that the Sub-CSE’s placement recommendation in May 2009 was XXXX, and that she was in agreement with it (R. 290-293).

XXXX stated that the May 2009 recommendation was not a complete change from the March 2009 meeting, in that the XXXX was discussed at the March 2009 meeting, and there was ongoing conversation about the benefits of the XXXX for the Student. The March 2009 recommendation was XXXX, and it was felt to be appropriate based on the fact that XXXX. However, the Sub-CSE felt that placing the Student in the XXXX class would increase XXXX rate of progress, and they felt that it would be the most appropriate program for the Student, given the Student’s progress between March and May 2009, hearing from the Parent and also looking at the private evaluation that recommended a XXXX. The Sub-CSE was also looking at the XXXX grade curriculum, where there was going to be more of an emphasis on XXXX. XXXX stated that the Parents were very open to listening about both programs, and they asked a lot of questions about the XXXX class. She provided them with a XXXX of the XXXX class, which showed that XXXX. The Parents were given opportunities to visit the XXXX. XXXX stated that the Student was receiving the XXXX based on the Parents’ preference for XXXX. She noted that other than in XXXX the Student was in the XXXX (R. 297-313).

On cross-examination, XXXX testified that XXXX instruction is one XXXX that is available at XXXX for students who need XXXX. She stated that there were several trained staff members, including XXXX. She stated that this Student received XXXX, an XXXX, in prior school years. She also testified that there is a XXXX at the XXXX identified as XXXX, and XXXX, identified as XXXX and XXXX. She stated that to her knowledge, the CSE never recommended that the Student XXXX (R. 410-411, 413-415).

Also on cross-examination, XXXX stated that the special education teacher of the proposed XXXX class, XXXX, came into the CSE meeting on May 6, 2009 to provide a class profile, but she did not stay at the meeting to discuss her program. XXXX stated that the Parents were offered opportunities to view the XXXX class in March 2009 and in May 2009 (R. 422-424, 428-431).

On redirect examination, XXXX reviewed the attendees at the Sub-CSE meeting on May 6, including herself; XXXX, the school psychologist; XXXX, the Student’s XXXX and teacher of the XXXX in which XXXX participated; XXXX, the Student’s XXXX; XXXX, the Student’s XXXX; XXXX, the Student’s XXXX; and the Parents (R. 433-435).

Also on redirect examination, XXXX testified that from the time that the District sent the Student’s educational records to XXXX, as requested by the Parents, on February 4, 2009, until the Parents’ discussion with XXXX regarding removal of the Student from the District’s programs on August 24, 2009 and up until the present day, the Parents never indicated a willingness to place the Student in the District if the recommendations made at the Sub-CSE meeting in March 2009 were restored (R. 441-443; Exs. SD-34, SD-35, SD-36, SD-44, SD-46).

On re-cross examination, XXXX testified that the Parents asked questions about the recommendations at both the March and May 2009 meetings and were active participants at the meetings. She also testified that she had no knowledge as to whether the Parents determined to send the Student to XXXX (R. 446-448).

On redirect examination, XXXX stated that the Parents voiced their opposition to the Student’s placement in the XXXX in prior schools years, in both the XXXX and the XXXX. The XXXX classes offered in XXXX and XXXX were run in the same manner. She also testified that the Parents had conversations with XXXX and visited the XXXX classroom at the time the Student was transferring from the XXXX grade into the XXXX grade (R. 449-452).

XXXX, is a XXXX and a XXXX who has been employed by the District for XXXX years. Her job duties include XXXX. XXXX described her work history prior to her employment with the District, which included XXXX (R. 454-463).

XXXX possesses a XXXX (R. 464-465).

XXXX is certified as a XXXX. She holds New York State certification as XXXX and she is licensed as XXXX in New York State. She also possesses national licensure with the XXXX. She described her membership in professional and education-related organizations (R. 465-467).

XXXX described her familiarity with the Student. She is assigned to the XXXX and she sat as a member at XXXX CSE meetings at both XXXX XXXX and XXXX

XXXX. She also knew him from the XXXX building, in that she conducted XXXX of the XXXX of which XXXX was a part. She chaired Sub-CSE meetings involving the Student in January 2009 and March 2009, and she was a member of the Sub-CSE that met for the Student in May 2009 (R. 467-470).

XXXX testified that she reviewed the Student’s educational records, which were sent to her by the XXXX in XXXX, XXXX. She reviewed the Student’s previous IEP and XXXX information contained in XXXX file. She described the Student as “XXXX.” XXXX was born with XXXX called XXXX, which presents with XXXX and a variety of XXXX, such as XXXX. She stated that XXXX has had XXXX since XXXX. XXXX current IQ of XXXX. XXXX also has XXXX, and has difficulty with XXXX. XXXX has XXXX. XXXX also has XXXX (R. 470-473).

XXXX reviewed the Student’s XXXX that was conducted starting in October 2004 by XXXX. She stated that the Student’s performance on XXXX stood out. She also commented on the Student’s XXXX, as described by the Parent, that XXXX, XXXX, and XXXX. She stated that the Student had XXXX. She also reviewed an XXXX conducted by XXXX, XXXX XXXX, and noted that XXXX (R. 473-485; Exs. SD-20, SD-23).

XXXX reviewed the IEP which was developed for the 2008/09 school year. She testified that she was present at the meeting, where discussions occurred regarding the Student’s progress to date, XXXX then current needs and levels of ability, areas that continued to require XXXX, programming, and goals. She testified that the goals developed at the meeting were appropriate and based on XXXX areas of deficit, XXXX levels of performance, and the results of XXXX evaluations (R. 517-520; Ex. SD-4).

XXXX testified that she was in agreement with the Student’s continued classification as XXXX as XXXX continued to have XXXX at that time. She discussed the history of the Student’s prior placements. She stated that the Student received

XXXX. At the end of XXXX grade, the Parent approached the XXXX at XXXX, XXXX, and asked if it was possible to place the Student in XXXX. XXXX told the Parent that if XXXX, XXXX could be supported in XXXX. However, they also discussed that at some point XXXX may not be sufficient for XXXX needs, as the educational material became more XXXX and XXXX. XXXX was XXXX and placed in XXXX. On cross-examination, XXXX stated that she was unsure as to who made the recommendation for the Student to XXXX and that the CSE supported the Student’s move to XXXX. During the 2007/08 school year, the Student’s XXXX grade year, XXXX was placed in XXXX, but that at some point in the year, XXXX had to XXXX for XXXX (R. 520-523, 746-751; Exs. SD-5, SD-6, SD-7, SD-8).

A CSE meeting was held on March 4, 2008 to discuss programming for the Student for the 2008/09 school year, XXXX XXXX grade year. The CSE discussed whether XXXX would be sufficient for XXXX needs. There was specific discussion about XXXX placement, an area of particular difficulty for the Student. There was discussion about the Student XXXX for XXXX, and there was also discussion regarding XXXX at XXXX where XXXX. It was determined that the Student could be placed in a XXXX, while accommodating the Parents’ request that the Student XXXX. On cross-examination, XXXX stated that there was no indication in the IEPs that the CSE was not supportive of XXXX for the Student, and that the minutes indicate that staff were pleased with XXXX progress in XXXX placement and in XXXX placement for the XXXX grade. There was also no indication that the CSE recommended a more restrictive placement for either the XXXX or XXXX grade years and the Parents rejected it. She also stated that XXXX at XXXX are XXXX, and the XXXX gave XXXX a great deal of support while XXXX. However, XXXX received more XXXX than the other students in the class, and the CSE ultimately felt that the XXXX would best suit XXXX needs, given that the other students in the placement were on the same functional level as this Student (R. 523-524, 749-753, 758-765; Exs. SD-4, SD-6).

XXXX stated her agreement with the Sub-CSE’s recommendations for the 2008/09 school year relating to XXXX, XXXX and XXXX. The level of XXXX remained the same, and XXXX was increased. She explained how the XXXX works at XXXX. She stated her agreement with each of the XXXX that included XXXX. She stated that the Student benefits greatly from XXXX. She also agreed with the recommendation for XXXX so that XXXX without XXXX. She also agreed with the recommendation of a XXXX, to be sure XXXX (R. 525-531; Ex. SD-4).

XXXX stated that although the IEP recommendation for XXXX was written to be implemented XXXX, the XXXX actually XXXX, as part of the XXXX. The IEP is written for less time, to cover situations where the XXXX might have to attend a meeting or conduct testing for another child, so that the District wouldn’t be out of compliance with the terms of the IEP in those situations. In addition, the XXXX. The XXXX (R. 531-534; Ex. SD-4).

XXXX explained the process by which students are XXXX at XXXX. She identified XXXX as XXXX. An XXXX was also present in the Student’s XXXX. The Student’s XXXX was identified as XXXX, who is dually certified in XXXX and as a XXXX. XXXX provided XXXX to the Student at some time before XXXX entered her XXXX (R. 534-537).

XXXX expressed her agreement with the XXXX recommended for the Student for the 2008/09 school year, which included XXXX. XXXX explained that on the ELA test, students under standardized conditions have to listen to a passage once to get the gist of it, and the second time they listen to the passage they have to take notes before responding in writing to what they heard. Children with XXXX or XXXX, for example, XXXX in order to complete the task. She also agreed with the recommendations for XXXX. She stated that based upon what she knew of the Student at the time the IEP was developed on March 4, 2008, she felt comfortable with the recommendations that were made for XXXX (R. 537-540).

XXXX testified that she reviewed the Student’s triennial testing that was conducted prior to the Student’s entry into XXXX, including the XXXX, XXXX, XXXX, the XXXX, and the XXXX (R. 541-543; Exs. SD-12, SD-13, SD-14, SD-15, SD-17).

XXXX reviewed the XXXX and stated that the XXXX is a measure of XXXX. It provides detailed information about XXXX. She explained the interpretation of scaled scores and percentiles. She noted that this Student’s performance on the XXXX, the most XXXX subtest, was the XXXX. XXXX strongest performance was in XXXX. She stated that the difference is statistically significant. XXXX was XXXX (R. 543-551; Ex. SD-14).

XXXX also reviewed the Student’s test results on the XXXX, which measure

XXXX. The Student scored in the XXXX. She stated that the analysis of XXXX is very difficult for the Student. In the area of XXXX, the Student functioned in the XXXX overall, with XXXX. In the area of XXXX, the Student was able to XXXX but when

XXXX. XXXX is a very XXXX for the Student, XXXX (R. 551-559; Ex. SD-14).

XXXX stated that the Student’s XXXX indicates that XXXX. She would expect that the Student would need XXXX and XXXX. XXXX relative strength in the XXXX subtest means XXXX. XXXX also has XXXX, XXXX knows XXXX, and XXXX is stronger. She stated that the XXXX are really a concern, since there is not a lot that can be done to XXXX, and speaks to the XXXX. On cross-examination, XXXX confirmed that recommendations for placement are not XXXX, and that other important information should be considered, such as XXXX (R. 559-561, 742-745; Ex. SD-14).

XXXX also reviewed the results of XXXX that was conducted as part of the Student’s triennial evaluation. She reviewed the results of the XXXX and the XXXX (the “XXXX”). In the XXXX, the Student scored XXXX, in which XXXX was required to XXXX. On the XXXX, which is also a test of XXXX, the Student is required to XXXX. A high level of XXXX as well as XXXX is required. The Student scored in XXXX. The Student is stronger in XXXX as opposed to XXXX. In both the subtests of XXXX and XXXX, the Student scored XXXX. XXXX testified that standard scores falling between 8-11 are average; standard scores falling between 6-7 are below average; standards scores falling at 5 or below is considered low, low average or borderline deficient (R. 561-573; Ex. SD-15).

XXXX also described the XXXX and the subtests that make up that score, including XXXX and XXXX. The Student scored XXXX. She described the XXXX as made up of the subtests of XXXX, XXXX, and XXXX. The Student scored XXXX in XXXX and XXXX, and in the XXXX in XXXX (R. 574-576; Ex. SD-15).

XXXX interpreted the Student’s performance in comparison with XXXX and stated that, except in the area of XXXX, the Student XXXX. XXXX is a real area of difficulty, which would be expected, given the XXXX that is required. It involves XXXX and XXXX. Given the Student’s difficulties with XXXX and XXXX, she was not surprised that XXXX is difficult for XXXX (R. 576-577; Ex. SD-15).

In the XXXX, the Student scored XXXX, and she believed the Student was XXXX. On the XXXX, the Student scored XXXX, but she felt that the Student XXXX (R. 577-580; Ex. SD-15).

XXXX also reviewed the Student’s performance on the XXXX, which measures

XXXX. She described the subtest of XXXX as XXXX, in which XXXX scored in XXXX. In XXXX, which is a test of XXXX, XXXX fell XXXX. In XXXX, the Student had to XXXX. In XXXX, the Student must XXXX, and XXXX performed in the XXXX. In XXXX, the Student is required to XXXX. The Student performed XXXX. In XXXX, XXXX was XXXX. XXXX was XXXX (R. 581-586; Ex. SD-15). XXXX stated that the Student’s XXXX, although XXXX, was XXXX. The XXXX shows that the Student has XXXX and XXXX. XXXX achievement on the standardized testing is XXXX (R. 586-588; Ex. SD-15).

XXXX also reviewed the Student’s XXXX. She described the XXXX as XXXX. XXXX described the Student’s performance as XXXX noting XXXX. She stated that the Student’s XXXX, noting XXXX score on the XXXX in the area of XXXX, shows that XXXX is weak. XXXX, which involves XXXX, is also XXXX, at the XXXX (R. 588-593; Ex. SD-13).

In addition, XXXX reviewed the Student’s XXXX. She stated that the XXXX is a XXXX. The XXXX. The Student’s XXXX was XXXX. XXXX was XXXX, at the XXXX, and XXXX for the Student, who scored in the XXXX. The Student has XXXX. The Student performed in the XXXX. A review of the evaluation reveals that XXXX, XXXX, XXXX and XXXX were all XXXX (R. 594-597; Ex. SD-23).

XXXX stated that in view of the Student’s performance on each of the evaluations, that XXXX (R. 603).

XXXX reviewed the XXXX, completed by the Parent on October 1, 2007, which became available to her upon the Student’s entry into XXXX for the 2008/09 school year, and she was confused. She stated that in June 2008, the Parents visited the XXXX at XXXX and that she ran into the Parent in the hallway upon leaving the XXXX class visit. The Parent stated that XXXX but XXXX. However, in the XXXX completed by the Parent in October 2007, she XXXX, and she was confused by the Parent’s XXXX in the XXXX class for the 2008/09 school year (R. 597-600; Ex. SD-17).

XXXX also testified regarding conversations between the Parent and XXXX staff, the then current XXXX, XXXX, and the incoming XXXX, XXXX, toward the end of the 2007/08 school year about moving the Student to the XXXX, when XXXX. She had also heard from XXXX that when the Parent participated in a transition meeting at XXXX for parents of upcoming students, the Parent XXXX. XXXX stated her surprise that the Student was not placed in the XXXX classroom for the 2008/09 school year, and that she heard that XXXX (R. 600-603).

XXXX stated that she informally observed the XXXX on two or three occasions in the first semester of the 2008/09 school year. Each time she observed the Student, XXXX was working. XXXX frequently would have XXXX. Sometimes XXXX. She was impressed with XXXX work ethic. She also recalled XXXX. She did not have any contact with the Parents until approximately December 2008, regarding XXXX. On cross-examination, XXXX testified that in the XXXX grade, the Student had a couple of close friends, that XXXX did not require XXXX or XXXX, that XXXX made progress XXXX and XXXX since entering the XXXX, and she had no reason to believe that the Student XXXX. She also stated that the Student did not XXXX; that in making a placement decision for the XXXX grade, XXXX is considered; that the Parents indicated concern about XXXX; and that she believed that their concern was based more on XXXX rather than any XXXX (R. 604-607, 769-778).

XXXX recalled a Sub-CSE meeting that was held in January 2009 to review private XXXX testing obtained by the Parents and to discuss adding a XXXX. XXXX noted that there were many tests administered over a two day period, and the evaluator, XXXX, stated that the Student XXXX, calling into question the reliability of the results, i.e., XXXX. She also questioned the manner in which XXXX administered the XXXX and the XXXX, and why the results of certain tests administered, specifically the XXXX and XXXX, were not mentioned in the report. She also noted that the XXXX was normed for adults and was not meant to be a measure for children. She also stated that the XXXX has had a lot of negative criticism about its validity (R. 610-622; Ex. SD-25).

XXXX noted that XXXX did not administer the full battery of the XXXX. She noted that only two out of three subtests in the XXXX were administered. This Student’s performance in the XXXX was XXXX. She stated that if the XXXX had not been administered in 2007, one would have missed important information about the Student’s XXXX. She noted that a comparison of the District’s administration in 2007 and XXXX’ administration in 2008 revealed XXXX. The Student’s standard score in XXXX in 2007 was XXXX. In 2008, XXXX standard score is XXXX. Also, the Student’s standard score in XXXX in 2007 was a XXXX. In 2008, XXXX standard score is XXXX. The testing shows that the Student’s XXXX, and XXXX ability to XXXX. The Student also made XXXX in XXXX. XXXX was measured at XXXX and XXXX was measured at XXXX (R. 622-626, 632-633; Exs. SD-14, SD-25).

XXXX also noted, however, the Student XXXX, scoring in XXXX in 2007 and in XXXX in 2008. She stated that there is no way to remediate XXXX. She also stated that testing in the area of XXXX. The Student’s XXXX was measured to be in XXXX. XXXX noted discrepancies in the manner in which scores were categorized by XXXX. She stated that XXXX did not participate in the CSE meeting, and that she asked the Parents for permission to speak with XXXX, but that the Parents did not give permission. She also stated that she received the document from the Parents with black marks on pages 1 and 3 (R. 626-628, 635-644; Exs. SD-14, SD-25).

XXXX testified with respect to the Sub-CSE meeting that was held on January 13, 2009. They discussed XXXX’ evaluation and the Parents’ request to add XXXX to address XXXX. All of the participants were in agreement. On cross-examination, XXXX confirmed that each of the issues she had with XXXX’ evaluation did not relate to the discussion that occurred at the CSE meeting. XXXX stated her opinion that the IEP was appropriate because the Student was XXXX (R. 644-648, 780-785; Ex. SD-3).

XXXX also testified with respect to the Sub-CSE meeting that was chaired by her on March 24, 2009 for the Student’s Annual Review. They discussed XXXX areas of progress and the areas in which XXXX was still struggling. The CSE reviewed the Teacher Report Form by XXXX, which indicated that XXXX, even in XXXX. They also reviewed the Teacher Report form by XXXX, which indicated that XXXX. In addition, they reviewed an XXXX, which indicated XXXX. XXXX was measured at the XXXX. XXXX continued to have difficulty with XXXX (R. 647-651; Exs. SD-2, SD-27, SD-28, SD-32).

XXXX stated that the Student’s progress in XXXX “was XXXX.” XXXX (R. 655-656).

XXXX testified that the Student XXXX. XXXX had gone from XXXX. They were continuing to work on XXXX, and it was agreed that the Student XXXX. XXXX continued to be the most difficult area for the Student. Even though XXXX was XXXX, XXXX was XXXX. XXXX was still being exposed to the XXXX grade curriculum, but the special education teacher “XXXX” XXXX went from being XXXX to XXXX. XXXX was not as XXXX, but XXXX was XXXX. XXXX did well in XXXX. In the area of XXXX, XXX made

XXXX. Continuation of XXXX was no longer required (R. 657-660).

XXXX stated that the Sub-CSE discussed the Student’s issues with XXXX and they again visited the issue of XXXX, and XXXX raised the issue of XXXX. The Parents were not in favor of that recommendation, feeling that XXXX. The Sub-CSE discussed the options available in XXXX grade, given the Parents’ desire not to place the Student in the XXXX. There was a XXXX. They developed a hybrid program which would allow for placement in XXXX, placement in the XXXX for XXXX, and XXXX. She stated that the Sub-CSE was trying very hard to come up with a program that would meet the Student’s needs in a format that would be “tolerable” for the Parents, who really did not want XXXX. XXXX would have received XXXX in all academic areas and XXXX would have been placed in XXXX (R. 652, 660-662; Ex. SD-2).

XXXX testified that the Parent requested a change in XXXX from XXXX to XXXX, given that XXXX were related to the XXXX, and the Sub-CSE agreed (R. 663).

XXXX described the program that was recommended at the meeting held on March 24, 2009. It would have included XXXX (R. 664-668, 679-681, 819-823; Exs. SD-2, SD-55, SD-56).

On cross-examination, XXXX confirmed that in the Student’s placement during the XXXX grade, XXXX made XXXX. She stated that XXXX. She also confirmed that, at the CSE meeting held in March 2009, it was determined that XXXX. She also stated that XXXX. On re-cross examination, XXXX testified that XXXX (R. 785-789, 791-794, 818-819).

On redirect examination, XXXX testified that the Parents’ opposition to the XXXX had a significant effect on the CSE’s recommendations at the March 2009 CSE meeting, and that it would not have recommended placement in XXXX. She also stated that had the Parents been supportive of the XXXX, she would have felt that it was an appropriate placement for the Student at the March meeting, because XXXX (R. 799-805).

XXXX described the profile of the typical student in the XXXX as being XXXX. She stated that at the end of the meeting the Parents were tentatively in agreement, that they wanted to think more about the recommendations and that they reserved their right to disagree at some point. XXXX advised them that if, upon further reflection, they determined that they did not want the Student to be placed in the XXXX that they should ask for another CSE meeting (R. 669-670).

XXXX testified that she received an e-mail from the Parents indicating their opinion that XXXX. XXXX stated her opinion that the Sub-CSE was “really kind of bending over backward to provide [the Student] with what XXXX needs in the least restrictive environment so that XXXX parents could feel comfortable with the recommendations without cheating [the Student] out of what XXXX needed.” She described the Student as “XXXX” and felt that the recommended XXXX program was the least restrictive environment that she would personally feel comfortable with, and that XXXX would be getting XXXX. XXXX sent the Parents an e-mail stating that she would arrange another CSE meeting to discuss their concerns. She then notified XXXX, who agreed to chair the meeting. The Parents responded to discuss scheduling (R. 683-685; Exs. SD-48, SD-49, P-A).

XXXX described the Sub-CSE meeting that was held on May 6, 2009. The Parents stated that they wanted XXXX, a concern they expressed over the years. They discussed the XXXX program in terms of what the Student’s day would look like. XXXX reviewed with the Sub-CSE the Student’s progress over the year, XXXX residual needs, and there was further discussion regarding programming for the 2009/10 school year. There was discussion over the rationale for the XXXX program, XXXX raised the issue of placement in the XXXX, and the members were polled as to whether the XXXX would be “an even more appropriate placement” than the XXXX program devised at the March 2009 meeting. The staff felt that the most appropriate program for the Student for the XXXX grade was XXXX program (R. 686-687; Ex. SD-1).

XXXX described the nature of the discussion and the reason for the change in recommendation to the XXXX class. She stated that the Student has XXXX; that XXXX was a student for whom learning was going to be extremely difficult based on XXXX XXXX; that XXXX has XXXX; and XXXX. Although XXXX made great progress in the area of XXXX, XXXX difficulties with XXXX were anticipated to continue to impact

XXXX. They revisited the issue of support for the Student in the content area. Although XXXX performed XXXX, they discussed that the content in XXXX and XXXX in XXXX grade becomes XXXX, and the Student’s XXXX. The XXXX program would provide XXXX and XXXX. She stated that she believed that “the best most appropriate place for [the Student] would be a XXXX.” The Parents disagreed and continued to say the recommendation was unacceptable because XXXX (R. 687-689, 692).

On redirect examination, XXXX stated that the change in recommendation from the March to the May meeting was not caused by a change in the Student’s needs. She stated that the change was based on the consideration that the XXXX class was more appropriate for the Student, an issue raised by the Chair, but that she still felt that the XXXX program that was developed at the March meeting was appropriate, and XXXX would have been placed in that program if the Parents had not made objections to the program after the March meeting. She also stated that “we really bent over backward to make whatever program [the Student] was in to work for [the Student], even if it meant, you now, providing XXXX like a class within a class. So we would have done our best to make it work for XXXX.” XXXX disputed the Parents’ assertions that they did not understand the Sub-CSE’s recommendations from the March meeting, and that the CSE recommended an entirely different recommendation from March to May, asserting that placement in the XXXX was discussed at the March meeting (R. 807-810, 815-817; Exs. P-A, P-B).

XXXX described the XXXX class which was taught by XXXX as having a XXXX, with XXXX (R. 689-692).

XXXX reviewed the IEP and stated that the minutes “captured nicely the discussion;” that the present levels of performance were representative and accurate; that the XXXX goals relate to XXXX, which is area of weakness, as well as XXXX difficulty with XXXX; that the XXXX and aimed at XXXX; that the XXXX goals were appropriate, that XXXX was working at that time with XXXX and that XXXX needed support in XXXX; that the XXXX were appropriate and focused on XXXX, improving XXXX, and XXXX and XXXX, that the XXXX were appropriate; that the Student’s XXXX was XXXX, and they were working on XXXX. She also agreed with the recommendations for XXXX and XXXX (R. 693-697; Ex. SD-1).

XXXX stated that XXXX’s class includes XXXX who is a certified teacher who used to be a XXXX class teacher. She stated her agreement with the recommended XXXX, indicating that XXXX, XXXX, and XXXX relate most specifically to the Student’s XXXX issues; that one needs to be sure that XXXX understands what is going on, and that XXXX is key because of XXXX XXXX and XXXX. XXXX are helpful because of XXXX (R. 695-696, 698; Ex. SD-1).

XXXX also stated her agreement with the recommended XXXX, because in order to determine whether XXXX, XXXX needs to XXXX, XXXX needs XXXX, and when

XXXX. XXXX is necessary so that XXXX can be provided (R. 698-699; Ex. SD-1).

XXXX stated her opinion that the IEP developed by the Sub-CSE in May 2009 addresses all of the Student’s needs and deficient academic areas in a manner which allows XXXX to learn best given the difficulties XXXX faces in learning, and that she feels strongly that the IEP will produce educational progress for XXXX. She stated that the Student is not going to be necessarily XXXX, but she has seen XXXX make over a year’s progress in XXXX in the period of one year, something that neuro-typical students do not make. She stated that she cannot guarantee that the Student will continue to make a year of progress in every year, but she believes that XXXX progress will continue because the recommended program is XXXX and XXXX, where XXXX, XXXX, XXXX, and XXXX are integral parts of the program. She stated her strong belief that the Student should be in the XXXX (R. 701-703).

On re-direct examination, XXXX stated that she believed in March 2009 that the XXXX was more appropriate for the Student, but that her philosophy is to work with parents and for the parents to feel happy, to feel supported by the school as well as their child being supported by the school (R. 835-837).

XXXX also stated her opinion that the Student did not require a private school placement in order to learn because it was too restrictive. She stated that the Student had “an extraordinarily appropriate program” where XXXX would get the support XXXX requires in the XXXX and in XXXX in the least restrictive environment relative to XXXX needs, where XXXX would have the opportunity for XXXX almost 2 hours per day with XXXX. She stated her familiarity with the XXXX School and stated her opinion that it was not an appropriate placement for the Student because it was overly restrictive, there were no mainstreaming opportunities, and she did not think the XXXX and XXXX classes that she saw were appropriate. On cross-examination, XXXX stated that she thought that the XXXX she observed was for XXXX grade, but she does not know whether the teacher who she observed is one of the Student’s teachers at XXXX (R. 736-739, 827-828).

XXXX is a XXXX at the XXXX School. She has been employed by the District for 8 years. Her job responsibilities include XXXX. She also XXXX. Prior to her employment with the District, XXXX worked for a total of 7 years in other public schools and for one year in a parochial school (R. 811-846).

XXXX is certified as XXXX and as XXXX. She stated that she first became familiar with the Student when she provided XXXX to XXXX as part of XXXX. She stated that XXXX was “a very sweet little XXXX” who was very motivated when she worked with XXXX. During the 2008/09 school year, XXXX was the Student’s XXXX grade XXXX. She stated that the Student remembered her from the summer, and XXXX had XXXX in the beginning of the year. As the school year moved along, it seemed like XXXX, and XXXX would XXXX. She stated that the Student was never a XXXX, but she called XXXX mother to share that XXXX (R. 846-847, 850-853).

XXXX stated that her class had a XXXX to it, where XXXX, XXXX, was present in the classroom for XXXX. There was also a XXXX, XXXX, in the classroom (R. 854-856).

XXXX described a typical day in her XXXX class. XXXX (R. 856-861).

This Student was part of the XXXX. XXXX relative strength was XXXX, but XXXX had a hard time with XXXX. XXXX was put into a group based on XXXX IEP goals. XXXX worked with the Student in addressing XXXX IEP goals. On cross-examination, XXXX stated that she provided input with respect to XXXX, XXXX, and XXXX goals. XXXX conferenced with the Student individually, and XXXX mother XXXX with XXXX every night. The Student became XXXX, and XXXX liked to XXXX, which are XXXX. The questions are multiple choice and it helps children to self-monitor their own XXXX. Students received stickers if they correctly answered 8 out of 10 questions or more (R. 861-864, 1062-1064; Ex. P-D).

On cross-examination, XXXX reviewed the Student’s progress during the 2008/09 school year on goal 4, a XXXX goal, that states, “XXXX.” The Student was not able to achieve the entire goal by the end of the 3rd marking period. XXXX testified that she and XXXX used a XXXX to help XXXX, in the form of XXXX. Also, in the XXXX, XXXX worked on XXXX and XXXX, as well as XXXX (R. 1064-1071; Ex. P-D).

XXXX stated that she differentiated instruction to meet the individual learning needs of each student. In the XXXX portion of the day, students XXXX at their instructional levels. XXXX are differentiated according to each student’s XXXX ability. In XXXX, both teachers present a mini-lesson and then they would conference individually with each student. Sometimes a teacher pulled a small group of children who needed help and would re-teach the lesson. The special education teacher worked with students on their IEP goals. XXXX was also differentiated according to students’ abilities, and this Student worked with XXXX in a XXXX (R. 867-871).

After XXXX, the students had XXXX. After XXXX, the students worked on XXXX. Then students participated in XXXX. Following XXXX, students XXXX and then worked on XXXX. The students then XXXX, until the end of the day (R. 871-874).

XXXX reviewed the details of the parent-teacher conference held on October 22, 2008 between herself, XXXX, XXXX, and the Parent, held for the purpose of discussing the Student’s progress to date. She stated that the Student was XXXX. XXXX XXXX was still below grade level. XXXX was a relative strength, but overall XXXX was still an area of difficulty. XXXX required XXXX for XXXX and XXXX. In XXXX the Student had difficulty XXXX. They XXXX before XXXX which helped to XXXX. XXXX struggled with XXXX and benefitted from XXXX. They supported the Student’s XXXX by XXXX. The Student met daily with XXXX in XXXX, and the Student always needed XXXX to help XXXX (R. 944-951; Exs. SD-56, SD-57).

XXXX reviewed a series of XXXX administered to the Student to assess XXXX. As of September 19, 2008, the Student was XXXX, at the XXXX level. XXXX with XXXX, which shows XXXX. XXXX did not XXXX, and the results tell a teacher that XXXX. As of January 22, 2009, the Student was XXXX. XXXX with XXXX, designated as XXXX. The Student required XXXX. As of April 24, 2009, the Student XXXX. XXXX, indicating XXXX. XXXX continued to XXXX. As of June 3, 2009, the Student

XXXX. XXXX at a XXXX. XXXX described the administration and scoring processes of XXX in detail. On cross-examination, XXXX testified that during the 2008/09 school year, the Student was not administered a standardized test specifically in the area of XXXX (R. 951-985, 1073-1075, 1109; Exs. SD-58A, SD-58B, SD-58C, SD-58D).

XXXX described the Student’s XXXX that she completed with XXXX. It shows that as of June 2009, although the Student continued to XXXX, XXXX was XXXX. XXXX actively participated in the XXXX, and that XXXX struggled with XXXX. XXXX benefitted from XXXX to help XXXX. While XXXX was able to XXXX, XXXX still had XXXX. On cross-examination, XXXX described the manner in which students took the XXXX tests. Sometimes she assisted XXXX including this Student, with the test. She stated that XXXX was XXXX. In the area of XXXX, XXXX needed XXXX. The Student’s XXXX and XXXX were weak and XXXX. XXXX XXXX improved but XXXX still had trouble XXXX. XXXX with XXXX. With respect to XXXX. On cross-examination, XXXX stated that they worked on XXXX such as XXXX and XXXX. They also XXXX. The Student was unable to XXXX. XXXX and XXXX used those strategies with the Student. She also consulted with XXXX, the Student’s XXXX, in providing XXXX (R. 986-993, 1076-1086, 1111-1115, 1186-1188; Exs. SD-59, P-E).

XXXX also reviewed the Student’s XXXX that were conducted on September 16, 2008 and on February 6, 2009. It assessed XXXX ability to XXXX. The Student was unable to XXXX, but XXXX was able to XXXX. A comparison between the two assessments shows that the Student XXXX. XXXX also improved in XXXX (R. 994-1003; Ex. SD-60A).

XXXX reviewed the Teacher Report Form she completed for the Student on March 19, 2009. The Student’s overall academic progress at that time was XXXX and although XXXX, it was XXXX and XXXX, and XXXX was still XXXX. In XXXX, XXXX XXXX, specifically with XXXX. XXXX was able to XXXX. XXXX was marked XXXX, because XXXX. XXXX would XXXX. XXXX needed a lot of XXXX. She stated it was better not to XXXX, because it made the situation worse. XXXX responded to XXXX. In a XXXX the Student would tend to XXXX. XXXX also benefitted from XXXX. She also noted that the Student struggles XXXX, and XXXX benefits from XXXX. XXXX also needs XXXX. On cross-examination, she stated that other students in the class benefitted from XXXX, and most students benefit from XXXX (R. 1005-1011, 1197-1201, 1221; Ex. SD-28).

XXXX also reviewed the Student’s report card for the 2008/09 school year. In the area of XXXX XXXX continued to need improvement throughout the year. XXXX was able to XXXX. XXXX had difficulty with XXXX. XXXX was a XXXX throughout the year. In the area of XXXX, the Student also needed XXXX throughout the year. XXXX was able to XXXX. However, XXXX had difficulty XXXX. XXXX also reviewed in detail the Student’s performance in the areas of XXXX, in which XXXX obtained grades of XXXX. XXXX performed XXXX in each of the sub-areas with the exception of XXXX (R. 1011-1021; Ex. SD-51).

In the area of XXXX, the Student has difficulty XXXX. XXXX also demonstrated difficulty XXXX. XXXX was not XXXX. In the area of XXXX, the Student XXXX. The Student had consistent difficulty in XXXX. When working in XXXX, XXXX would get

XXXX. XXXX was not able to XXXX. XXXX needed XXXX (R. 1021-1024; Ex. SD-51).

XXXX also reviewed Progress Report Conference Notes dated March 24, 2009, in connection with the parent/teacher conference for the 2nd marking period. The parent/teacher conference was held during the Student’s CSE meeting, since XXXX was scheduled for maternity leave. The report reflected XXXX. The Student XXXX. XXXX required XXXX. XXXX were beneficial, and XXXX benefitted from XXXX. In addition, XXXX were important because XXXX (R. 1024-1027; Ex. SD-52).

XXXX reviewed the Student’s IEP for the 2008/09 school year and confirmed that she provided the XXXX and XXXX that were listed in the IEP for the Student. She described the XXXX with respect to the Student. She also reviewed the Student’s present levels of performance, social development, physical development, and management needs, as listed on the IEP, and confirmed that they were consistent with what she observed in the Student upon XXXX entry into her classroom. On cross-examination, she testified that she reviewed the Student’s IEP with the XXXX, and based on her review, she knew that XXXX, and they would have to target XXXX, XXXX would have XXXX, and XXXX would XXXX. She also reviewed the IEP goals with XXXX prior to the start of the year. In addition, she conferred with the XXXX in regard

XXXX. The District’s XXXX did not work with the Student directly. However, XXXX worked with XXXX, who was a XXXX (R. 1028-1035, 1088-1091, 1093, 1184, 1343-1344; Ex. SD-4).

On cross-examination, XXXX testified that she conferred with the District’s XXXX, XXXX, and reviewed the Student’s XXXX from the 2007/08 school year. She stated that XXXX are developed at the end of September or the beginning of October, and prior to that, she was responsible for XXXX during the first 3 weeks of school. She acknowledged that during that time, the Student had difficulty with XXXX, similar to the other students in the class. The Student did not have a XXXX until the groups were configured, and ultimately XXXX, XXXX became the Student’s XXXX. She stated that the Student was XXXX, because XXXX. XXXX had a hard time XXXX. XXXX did not XXXX (R. 1094-1101, 1226-1231; Ex. P-F).

XXXX also testified regarding the Sub-CSE meeting that was held on January 13, 2009 at which the results of an independent evaluation obtained by the Parents was reviewed and at which XXXX was added to address XXXX. In addition, she testified to the Sub-CSE meeting that was held on March 24, 2009 for the Student’s Annual Review. She reviewed the minutes of the meeting and indicated her agreement with a number of statements relating to the Student’s progress, such as XXXX. On cross-examination, XXXX stated that students XXXX and they are viewed by the students prior to XXXX (R. 1035-1042, 1118-1119; Ex. SD-3).

XXXX also testified regarding the discussion of the XXXX program at the March 24, 2009 Sub-CSE meeting. She stated that the class was discussed but that she knew that the Parents felt that it was too restrictive and not something that they wanted for the Student. XXXX agreed that the XXXX would be appropriate for XXXX, because XXXX, and that type of class XXXX. She described the XXXX class as “the first place where we thought would be most appropriate for XXXX,” but because the Parents were not in favor of the program, they offered XXXX, where XXXX would receive XXXX. She also stated that although the Student maintains grades of XXXX, she was concerned because XXXX, XXXX, and XXXX. She believed that the Student needed XXXX. The CSE ultimately recommended XXXX. She agreed with the recommendations, including those made for XXXX (R. 1042-1048, 1058-1060, 1202-1205, 1222-1223; Ex. SD-2).

XXXX was not present at the May 24, 2009 Sub-CSE meeting due to a maternity leave, but she stated her opinion that the change in placement recommendation to XXXX program “probably would have been the best fit --- or more appropriate” for the Student because XXXX. On re-direct examination, XXXX stated that had she been present at the May 24 Sub-CSE meeting, she would have agreed with the recommendation for the XXXX class because in her heart she felt like the XXXX class would be the best place because XXXX (R. 1048-1050, 1222-1223; Ex. SD-1).

XXXX also reviewed the Student’s test results on XXXX, XXXX. She stated that scores XXXX show areas of weakness. In the fall, the Student demonstrated weaknesses in XXXX. The Student also participated in two additional assessments of XXXX (R. 1051-1057, 1235-1242; Exs. SD-61, SD-62).

On cross-examination, XXXX stated her concerns early in the 2008/09 school year regarding the Student’s placement in XXXX, and she spoke with the Student’s mother within the first few weeks of the class, who indicated that the Student liked the class. On re-direct examination, she stated that she spoke with the Student’s mother that she was going to keep a close watch on him, because XXXX. The Parent stated that she did not believe that the XXXX was appropriate for the Student at that time (R. 1193-1195, 1217-1221).

XXXX is a XXXX at XXXX. She has been employed by the District for 16 years. She provides XXXX. She also works in the XXXX with students who have XXXX. She

XXXX. She described her employment and her job duties prior to working for the District. XXXX has Bachelors and Masters Degrees in XXXX. She also received her

XXXX. She is New York State certified as XXXX, she is licensed as XXXX, and she is nationally certified by XXXX. She described her memberships in professional organizations (R. 874-881).

XXXX stated her familiarity with the Student as XXXX during the 2008/09 school year. She was also assigned to the XXXX during the 2009/10 school year. She and the XXXX, XXXX, met weekly for a minimum of 30 minutes and collaborated on XXXX. She spent between 30 and 45 minutes in the XXXX. The students worked on XXXX. XXXX described typical activities in which the students participate in XXXX. She described the students in the class as XXXX (R. 881-885).

XXXX stated that she provided XXXX to the Student XXXX, during the 2008/09 school year. XXXX were increased XXXX to address XXXX. XXXX stated that the Student had weaknesses XXXX. XXXX was stronger at XXXX. XXXX a relative strength. XXXX had more difficulty when XXXX. XXXX was XXXXX. XXXX was (R. 890-893).

XXXX testified that she had a discussion with XXXX, the Student’s prior XXXX, and she reviewed documents, including prior evaluations and IEPs in preparing for the Student’s entry into XXXX. She reviewed the Student’s XXXX as part of the materials. She reviewed the Student’s performance on the XXXX XXXX had difficulty in XXXX (R. 894-903; Ex. SD-13).

In the area of XXXX (R. 903-905; Ex. SD-13).

XXXX worked with the Student on XXXX. XXXX reviewed each of the Student’s goals in detail and gave examples of how each goal was worked on in XXXX. XXXX stated that the Student is XXXX (R. 905-912, 1136-1144; Ex. SD-4).

XXXX discussed the Sub-CSE meeting that was held on January 13, 2009 to review the Parents’ private evaluation and a request for increased XXXX. Although the Student was not XXXX (R. 1144-1149, 1269-1272; Exs. SD-3, SD-25).

XXXX testified regarding the Sub-CSE meeting held on March 24, 2009. She recalled reviewing the Student’s progress to date and making recommendations for the 2009/10 school year. She stated that all members agreed that the Student made progress, but that XXXX. She stated that the XXXX was always a consideration for the Student, because the XXXX. However, the Sub-CSE recommended placement was XXXX. She remembered making statements at the meeting regarding the Student’s difficulties with XXXX. She also stated that the Student was XXXX (R. 1272-1275, 1277-1278; Ex. SD-2).

XXXX stated that she recalled a discussion of the XXXX class and other alternatives at the March meeting. Her recollection was that the Parents stated that the XXXX program was one in which they were not interested because they felt it was overly restrictive. The Student was recommended to receive XXXX. At the hearing, the parties stipulated to the appropriateness of the recommendation for XXXX. The Parents did not access XXXX (R. 1283-1289, 1964, 1966-1967; Exs. SD-2, SD-55).

XXXX reviewed the Student’s Progress Report for IEP Goals in the area of XXXX and stated XXXX (R. 1293-1296, 1319-1322; Ex. P-D).

XXXX also discussed her participation in the Sub-CSE meeting held in May 2009. She recalled that the recommendation emanating from the meeting was placement in the XXXX class for the 2009/10 school year. She stated that the Committee felt that it was a more appropriate placement for the Student, in that XXXX. On cross-examination, XXXX stated that the Student had great difficulty with XXXX. On some days, XXXX was XXXX. On cross-examination, XXXX stated that she believed that the Student was XXXX. She stated that other than a recommendation for placement in the XXXX, no other changes were made to the IEP that was developed in March 2009, and she agreed with the rest of the recommendations relating to XXXX (R. 1296-1306, 1326-1327, 1332-1334; Exs. SD-1, SD-2).

XXXX testified that she would have been the XXXX who was attached to the XXXX for the 2009/10 school year, and that had the Student attended the program, she would have worked with XXXX on XXXX goals. She reviewed how she would have implemented each of the proposed goals and why each goal was appropriate. On cross-examination, she testified that each of the Student’s XXXX. She also stated her belief that the XXXX would have been appropriate for the Student because XXXX (R. 1306-1316, 1338-1340; Ex, SD-1).

XXXX is a XXXX who has been employed by the District for 4 years. She XXXX at the XXXX. She is multiply certified in New York State as XXXX, an XXXX, and as a XXXX. She stated that for the 2008/09 school year, she was a XXXX. She and XXXX were in the front of the room, XXXX. She described the XXXX on re-direct examination in detail. On re-cross examination, she confirmed that the materials are geared toward XXXX (R. 1343-1348, 1731-1739, 1743-1744, 1747-1750).

XXXX also testified that she XXXX during the 2008/09 school year. She explained that students are given XXXX. On cross-examination, she confirmed that the Student was XXXX. On cross-examination, she confirmed that she collaborated with XXXX (R. 1348-1350, 1546-1548, 1555, 1563).

XXXX was the Student’s XXXX during the 2008/09 school year. She provided

XXXX. Students use XXXX (R. 1350-1357). XXXX stated that the Student met with her every day for between 20 and 25 minutes in guided reading, and he worked independently when she worked with other identified students. During that time, XXXX sat with him and made sure he understood what to do. On cross-examination, XXXX stated that she did not give the Student formalized reading or writing assessments, but she met with him every day and made informal assessments of his daily performance. She developed the next day’s lesson based on the difficulties he exhibited the previous day. She checked his spelling and that of other students in the class. XXXX periodically checked on him and reported to XXXX how he was doing (R. 1357-1358, 1550-1551).

XXXX described the profile of the students in this Student’s XXXX (R. 1358-1362).

XXXX testified that although she was required to stay in XXXX’s class for 80 minutes 5 days in a 6-day cycle, there were many days when she stayed for 2 hours per day. After XXXX (R. 1362-1369, 1562).

After XXXX.. On cross-examination, XXXX testified that (R. 1369-1376, 1546, 1567-1572).

XXXX testified regarding the instruments used to assess the Student’s performance in the areas of XXXX. She also reviewed the IEP for the 2008/09 school year and described how she implemented the XXXX in class. She stressed the need to XXXX (R. 1376-1382; Ex. SD-4).

XXXX also described the Student’s XXXX and the manner in which they were implemented. XXXX (R. 1382-1383; Ex. SD-4).

XXXX stated that the Present Levels of Achievement as listed on the IEP described the Student accurately at the time XXXX. She also stated that she was responsible for implementing the Student’s goals in the areas of XXXX. The Student achieved this goal by the end of the year. XXXX goals relating to XXXX. By the end of the year, XXXX (R. 1384-1389, 1422-1428, 1750-1753; Exs. SD-1, SD-4).

The Student also worked on XXXX. That goal was also continued for the 2009/10 school year (R. 1389-1391, 1428-1430; Exs. SD-1, SD-4).

XXXX reviewed the Student’s Conference Form dated October 22, 2008. At that time, the Student’s XXXX. During XXXX needed XXXX and she communicated that information to the Parent (R. 1392-1394; Ex. SD-57).

XXXX reviewed each of the Student’s XXXX that were administered by herself and XXXX during the 2008/09 school year. As of September 19, 2008, the Student was XXXX (R. 1394-1403; Exs. SD-58A, SD-58B).

As of April 24, 2008, the Student was not XXXX (R. 1403-1408, 1572-1573; Exs. SD-58C, SD-58D).

XXXX also reviewed the Student’s results on the XXXX testing in XXXX. The Student scored XXXX (R. 1408-1413, 1575-1578, 1739-1740, 1744-1746; Exs. SD-53, SD-54).

XXXX reviewed the XXXX that was prepared as a guide for XXXX grade teacher. XXXX was XXXX (R. 1414-1416; Ex. SD-59).

XXXX also reviewed the Student’s performance on the XXXX administered 3 times during the school year. At the beginning of the year, the XXXX (R. 1417-1421, 1578-1580; Ex. SD-62).

XXXX testified to her recollection of the Sub-CSE meeting that took place on January 13, 2009. She recalled reviewing the private XXXX, she remembered the addition of XXXX, she remembered reviewing additional recommendations made in the report, and she remembered discussion about the Student’s abilities at that point in the school year. The XXXX spoke about XXXX (R. 1430-1433; Exs. SD-3, SD-25).

XXXX also discussed the Sub-CSE meeting held on March 24, 2009. She stated that they spoke about some of the Student’s needs for the following school year. They discussed XXXX spoke about some of the Student’s progress and skills in that area. At the end of the meeting, there was discussion about the Student’s placement for the 2009/10 school year. The first discussion involved the XXXX. The Parents felt that the placement was too restrictive for the Student. After that, the Sub-CSE discussed a XXXX would have been provided for the Student during XXXX (R. 1433-1438; Ex. SD2).

XXXX reviewed her Teacher Report Form for math that was discussed at the March 24 Sub-CSE meeting. She stated that at that time, XXXX (R. 1440-1447, 1561-1562; Exs. SD-27, SD-28, SD-51, SD-52).

XXXX also reviewed the XXXX that she completed. When the Student XXXX. When asked what had changed between March 24 and May 6 that made her believe that the XXXX class was the most appropriate, she stated that the Sub-CSE in March first recommended the XXXX class but the Parents didn’t agree with it, so they recommended XXXX in an attempt to achieve consensus. She stated that the March meeting, XXXX stated that the XXXX would be an appropriate placement for XXXX because she worked closely in that classroom, she was very familiar with the students in the class, and XXXX would fit in well there. She did not recall any other CSE members comment on the reasons they believed the XXXX class to be appropriate. Also on cross-examination, she confirmed that at the time of the parent/teacher conference in October 2008, she did not tell the Parents that she felt the Student needed XXXX. She testified that at the time of the March 24, Sub CSE-meeting, however, she did indicate to the Parents that she felt the Student needed XXXX only because she did not believe that the Parents would accept a placement for the Student in XXXX based on their rejection of an XXXX placement during the time of XXXX (R. 944-951, 1652-1676; Exs. SD-2, SD-56, SD-57).

XXXX also stated her agreement with the XXXX and XXXX that were recommended for the Student at the Sub-CSE meeting held on March 24, 2009. She stated that all of the XXXX really helped the Student to XXXX. On cross-examination, XXXX confirmed that the Student knew that XXXX (R. 1452-1454, 1563-1566; Ex. SD2).

XXXX testified that she was in agreement with all of the goals that were recommended for the Student at the March meeting. She stated that all of the goals were specific to XXXX learning needs, and each targeted weaknesses that XXXX had in XXXX (R. 1454-1457, 1745-1746; Ex. SD-2).

In the area of XXXX, XXXX stated that goal 8 addressed XXXX also a continuing area of need (R. 1457, 1745-1746; Exs. SD-2, SD-3, P-D).

XXXX reviewed a series of e-mails that were sent between herself and the Parent. Among them was an e-mail relating to a change in the XXXX the Student would use for the remainder of the 2008/09 school year, to target XXXX. On cross-examination, she confirmed that the Parent wished the option was considered earlier in the school year. The Student was the XXXX in the group. XXXX had XXXX (R. 1462-1488, 1585-1592, 1598-1603, 1611-1618; Exs. SD-63, SD-64, SD-65, SD-66, SD-67, SD-68, SD-69, SD-70, SD-71, SD-72, SD-73, SD-74, P-I, P-J).

XXXX, the Student’s XXXX, confirmed on cross-examination that XXXX confirmed that the Parents did not change their minds about the declination of XXXX (R. 3303-3305; Exs. SD-73, SD-74).

On cross-examination, XXXX reviewed the results of several XXXX given to the Student during the 2008/09 school year. XXXX (R. 1618-1652; Exs. P-K, P-L, P-M, PN, P-O, P-P).

XXXX testified regarding the Sub-CSE meeting that was held on May 6, 2009. She stated that the specific change that was made to the Student’s proposed program for the 2009/10 school year was a recommendation for the XXXX class, because they felt that it would be the most appropriate placement for the Student, given XXXX strengths and weaknesses. She stated that the XXXX class consisted of XXXX

She reviewed the Present Levels of Achievement section of the May 2009 IEP and stated that it was a true and accurate summary of the Student’s then present levels at the time of that Sub-CSE meeting. I note that the Present Levels of Achievement as stated in the March and May IEPs is identical, with the exception of XXXX. The March summary states that XXXX The May summary states that XXXX (R. 1524-1540; Exs. SD-1, SD-2).

XXXX stated her agreement with the recommendations for XXXX and goals based on her belief that XXXX. I note that there were no changes in the Sub-CSE’s recommendations in those areas between the March and May meetings. On cross-examination, XXXX confirmed that there were errors on the final IEP, which designated primary responsibility for certain goals to XXXX. On re-direct examination, she stated that despite the typographical error, she agreed with the substance of the goals contained in both IEPs (R. 1540-1541, 1676-1677, 1740-1743; Exs. SD-1, SD-2).

On cross-examination, XXXX stated her belief that the XXXX class used the XXXX (R. 1552-1555).

On re-direct examination, XXXX testified that since the Student was not XXXX, she prepared the Student to XXXX while simultaneously working to help the Student achieve the goals on XXXX IEP (R. 1684-1693).

XXXX is a XXXX who has been employed by the District for 15 years. She possesses dual New York State certification in XXXX and XXXX. During the 2009/10 school year, she was assigned to teach the XXXX class that was recommended for the Student. She described the class as designed for students with XXXX. They work on XXXX. XXXX stated that she has XXXX for 4 years. She described her other XXXX assignments in the District and she described her employment prior to coming to the District (R. 1757-1764, 1774-1776).

XXXX testified that she XXXX. She also described trainings in which she participated, such as XXXX (R. 1765-1774, 1777-1782, 1785-1787, 1789, 1791-1792).

XXXX described the XXXX program, which was designed to complement the XXXX program. It helps students to be able to XXXX (R. 1783-1785, 2536).

XXXX also described XXXX. On cross-examination, XXXX identified a program called XXXX (R. 1787-1788, 2536-2537, 2560-2562, 2718-2719).

On re-direct examination, XXXX stated that she uses XXXX (R. 2714-2715).

XXXX described the XXXX program as XXXX. On cross-examination, XXXX testified that she also used a program called XXXX (R. 1791-1794, 2536).

XXXX also described the XXXX program, which is XXXX (R. 1795-1796).

XXXX described the physical layout of the XXXX during the 2009/10 school year.

XXXX. On cross-examination, XXXX stated that the program was used in other classes in addition to the XXXX class (R. 1796-1802, 2562).

XXXX also described objects that were on her classroom walls, such as XXXX (R. 1804-1814, 1816-1823).

XXXX stated that the XXXX. On cross-examination, XXXX testified that XXXX were available in classes other than the XXXX class as well (R. 1824-1827, 2562-2563).

XXXX described a typical student in her XXXX program for the 2009/10 school year. She stated that a typical student had XXXX (R. 1827-1830, 1832-1836, 2563-2568, 2719-2723).

On cross-examination, XXXX described her understanding of XXXX’s XXXX (R. 2552-2553, 2705-2714).

XXXX stated that in addition to herself, additional adults who service students in the classroom include XXXX (R. 1830-1832).

XXXX summarized how the XXXX was used in the classroom. She stated that XXXX (R. 1836-1839).

XXXX described a half-hour block she called a XXXX (R. 1840-1845).

XXXX summarized how the XXXX was used in the classroom. XXXX (R. 1845-1847).

XXXX also discussed XXXX’s duties in the XXXX. She and XXXX (R. 1848-1856).

XXXX described what took place between herself and XXXX during their collaborative planning. First, XXXX (R. 1856-1863, 1869-1870).

XXXX described the XXXX component of the XXXX. XXXX (R. 1863-1869).

XXXX described XXXX (R. 1870-1873).

XXXX stated that the students in the XXXX for the 2009/10 school year were XXXX (R. 1873-1879, 2570-2572, 2580-2581, 2593-2598, 2715-2718, 2727-2728; Ex. SD-1).

On re-direct examination, XXXX testified XXXX (R. 2724-2727).

On cross-examination, XXXX testified that none of the students in the XXXX class during the 2009/10 school year had XXXX (R. 2551-2552, 2624-2627).

XXXX testified that students in the XXXX during the 2009/10 school year had XXXX (R. 1880-1885).

XXXX described a typical day in the XXXX (R. 1885-1893, 1976-1979, 2582, 2584, 2586-2587).

XXXX stated that many of the students in the XXXX have (R. 1893-1896, 1979-1983, 2587-2589).

At 10:15 a.m., this Student would have XXXX (R. 1897-1898, 1984-1986, 2589).

At 11:00 a.m., the XXXX (R. 1898-1903, 1987-2000, 2532, 2589-2590).

At 1:00 p.m., XXXX (R. 1903-1912, 2000-2005, 2590-2592).

XXXX stated that scheduling for the XXXX varies by year, and that she meets in the summer with the Principal to discuss the master schedule and the best way to fit instructional segments in the XXXX during the day. She stated that, one year, she had XXXX (R. 2005-2009).

XXXX explained that students have XXXX (R. 2009-2019).

XXXX described the XXXX that she uses in the XXXX, including XXXX (R. 2019-2027, 2558-2560).

XXXX described the types of XXXX that are given to the XXXX students. In beginning of the year, students are XXXX (R. 2027-2029).

In the area of XXXX (R. 2029-2032).

The students are also given XXXX (R. 2032-2034).

Students in the XXXX. No one in the XXXX for the 2009/10 school year was XXXX (R. 2042-2045, 2738).

XXXX described the instructional materials used for XXXX. For XXXX (R. 2045-2047).

XXXX stated that in terms of instruction, she XXXX (R. 2048-2050).

XXXX works to prepare the students for XXXX (R. 2051-2054).

On cross-examination, XXXX described the manner in which she prepared the XXXX students for XXXX (R. 2533-2535, 2550).

XXXX testified on direct and cross-examination that her first contact with the Student and the Parents occurred during the spring of the 2007/08 school year, when XXXX was in the XXXX grade. She stated that each spring an informational session for parents of XXXX is held in preparation for the transition into XXXX from XXXX XXXX into XXXX XXXX. It ordinarily occurs in late April or early May. The teachers attended to share information about their classes. XXXX also attended. As XXXX was beginning to give her presentation, she noticed a parent, later identified as this Student’s XXXX (R. 2054-2058, 2061, 2537-2538).

The Parents came to observe the XXXX and to meet privately with XXXX in May 2008. They observed the class for approximately 30 minutes, after which they were outside in the courtyard where XXXX shared with them the structure of the day, the schedule, the types of activities she does in the XXXX, and the methods she uses. She shared work samples of students who were currently in the program. The Parents shared some of the Student’s needs and they talked about whether the program would fit with XXXX needs. At some point in June 2008, the Parents asked if the Student could visit the program. The Student, XXXX mother, and a younger sibling attended class on a half-day toward the end of the school year. On cross-examination, XXXX testified that XXXX spoke with the Student on the date of XXXX visit. She never observed the Student in XXXX classroom or when XXXX was working with XXXX (R. 2059-2060, 2550-2551).

XXXX stated that at some point in May 2008 the XXXX grade students who would be entering the classroom in the fall came to visit the XXXX class. This Student did not join the class for visit, even though XXXX asked if XXXX could attend. A decision had been made between the Parents and XXXX XXXX that the Student would not attend with the other XXXX graders. However, the Student spent between an hour and an hour and a half in the XXXX in June 2008, after the Parents observed the XXXX in May 2008. The Student seemed to be comfortable and XXXX was interacting with the students, some of whom XXXX knew from XXXX prior placements (R. 2060-2065).

Toward the end of the 2007/08 school year, XXXX received a class list with the Student’s name on it. She began to set up her classroom in either late July or early August. She sent e-mail reminders to parents with supply lists and suggested reading lists. She received an e-mail response from the Student’s father in which he stated that she should not send them any more papers, the Student would not be attending the XXXX, and that if she had any questions she should speak with the Principal. The Principal, XXXX, stated that the Parents decided not to place the Student in the XXXX, and that XXX would be placed in XXXX. She removed XXXX from her class list and took XXXX name down from the wall (R. 2065-2067, 2539).

As the 2008/09 school year progressed, XXXX was approached by XXXX and XXXX to provide a profile of the students in her XXXX classroom, and to provide information regarding their XXXX for use by the CSE in determining whether the Student might be appropriate for placement in the XXXX at their meeting in May 2009. She entered the CSE meeting to provide the document she prepared to XXXX. She did not stay for the meeting. XXXX stated that all of the students who were present in the XXXX for the 2008/09 school year continued to be placed in the XXXX for the 2009/10 school year, with an additional student who entered the XXXX from XXXX (R. 2068-2076; Ex. SD-75).

XXXX testified that she was aware that the Student was recommended for placement in her XXXX class for the 2009/10 school year immediately following the meeting held on May 6, 2009. She reviewed the recommended IEP and stated that the Student’s Present Levels of Achievement were consistent with the profile of the students placed in the XXXX as of the beginning of the 2009/10 school year. She stated that the Student would have been XXXX, as indicated on the IEP. On cross-examination, she confirmed that XXXX. She reviewed each of the Student’s XXXX and explained how she would have implemented them in the XXXX. She also stated that the Student would be instructed in how to use the XXXX (R. 2081-2090, 2562).

XXXX reviewed each of the goals contained in XXXX IEP for the 2009/10 school year and explained in detail how she would have implemented each of them in the XXXX. She stated that had XXXX attended the XXXX for the 2009/10 school year, XXXX would have had XXXX. She also stated that based on the information contained in his IEP, she would have expected him to make progress in the XXXX (R. 2090-2101; Ex. SD-1).

XXXX testified that based on the Student’s IEP, XXXX has specific areas of deficit and underlying XXXX. Students who are XXXX (R. 2101-2102; Ex. SD-1).

XXXX stated that had the Student entered the XXXX for the 2009/10 school year, she would have either seen XXXX sometime over the summer prior to the start of the year or she would have met with XXXX teachers from the prior school year. She would have reviewed XXXX progress, sat in on meetings at the end of the year to talk about areas where the Student struggles, and to look at work samples. She would have also taken time over the summer to meet with the Principal to develop a schedule for the day based on the particular needs of the students to make sure that the XXXX were appropriate (R. 2102-2103).

XXXX reviewed the Student’s specific XXXX as described in the IEP. She stated that XXXX (R. 2103-2112).

On cross-examination, XXXX discussed her understanding of the differences between the XXXX and XXXX. She stated that the XXXX (R. 2556-2558).

On re-direct examination, XXXX reviewed a XXXX (R. 2665-2672; Ex. SD-76).

On re-cross examination, XXXX clarified that XXXX can be compared, but the XXXX cannot (R. 2748; Ex. SD-76).

Also on re-direct examination, XXXX compared the Student’s profile information in conjunction with the information contained with respect to the other XXXX (R. 2683-2684, 2699-2704).

XXXX testified that she was able to meet each of the students’ XXXX (R. 2723-2724; Ex. SD-76).

On re-cross examination, XXXX stated that XXXX However, she stated that there are factors other than XXXX that bear on a CSE determination to continue or change programs and placements for students (R. 2758-2760).

XXXX was employed by XXXX School for 34 years. For 28 years, she served as the XXXX. She spent 4 years as XXXX and XXXX. Prior to her employment with XXXX, for two years, she XXXX. XXXX is certified as XXXX and as an XXXX in XXXX. She consults with families who are working with their school districts, and in that capacity, she observes students in XXXX, she meets with their XXXX, and with their XXXX in preparation for hearings. She was paid by the Parents for her consulting work and for her appearance at hearing. On cross-examination, XXXX testified that she was first approached by the Parents to review the Student’s records, meet with XXXX advisory team, and act as a voice for XXXX’s program in early February 2010. With permission from the Parents, she spoke with their attorney and gathered records from XXXX for review. She then scheduled an opportunity to meet with the Student’s XXXX and XXXX, which occurred on May 6, 2010, for a period of 1 hour. On May 7, 2010, she observed the Student in XXXX (R. 2157-2160, 2207-2212, 2332-2339).

XXXX described her duties as an XXXX to include XXXX (R. 2160-2161).

XXXX also described her duties as XXXX They included XXXX (R. 2161-2164, 2167-2168, 2170-2174, 2176, 2182-2183, 2194-2195).

In her role as XXXX, XXXX had the opportunity and responsibility to XXXX (R. 2174-2175, 2180-2182, 2194-2199).

XXXX described XXXX as a XXXX (R. 2168, 2177-2180).

XXXX testified that the age range of students at XXXX is XXXX, and the oldest student they see at admissions is XXXX. Students are not XXXX. She described the three-step admissions process in detail (R. 2183-2187).

XXXX stated her familiarity with the curriculum, programs, and materials used at XXXX. The curriculum is XXXX (R. 2190-2194, 2313-2316, 2347).

XXXX stated her familiarity with the Student. She met the Parents during the admissions process and she met the Student during XXXX two-day visitation. She was also part of the admissions committee who reviewed the Student’s eligibility for enrollment. She reviewed materials provided by the Parents; she had the opportunity to speak with the teachers who hosted the Student during XXXX two-day visit; and those teachers provided the admissions committee with feedback on their impressions. On cross-examination, XXXX testified that she was involved in the Student’s intake process; she was involved in profiling, gathering the information for scheduling, and in the actual scheduling of XXXX classes for the fall 2009. She also stated that she conducted profiling with her associate between May and June 2009 in which they reviewed all records and intake information and created a document listing student strengths, needs, learning styles, and any other pertinent information contained in student IEPs and testing information in preparation for scheduling. She had input into the Student’s class placements for the 2009/10 school year. XXXX stated that the Parents submitted an application to XXXX some time prior to March 31, 2009. She had an intake meeting with the Parents on March 31, 2009. She stated that the Student’s two-day visitation occurred sometime in April 2009, and the Admissions Committee met sometime at the end of April or early May 2009, and a formal letter of acceptance was sent in early May 2009. Parents then sign an enrollment agreement that is sent to the business office. Parents also need to sign medical forms and photographic release forms. Together with the enrollment agreement, parents either pay a 10% deposit of the annual tuition or set up a monthly payment plan (R. 2199-2202, 2320-2328; Ex. SD77).

Following her retirement, XXXX returned to XXXX to observe the Student in his

XXXX. She also attended a team meeting, she met with the Student’s advisor, XXXX and she met individually with XXXX classroom teachers for the 2009/10 school year. She described the Student’s classes. He had XXXX (R. 2202-2204, 2375, 3389-3390; Ex. P-X).

The XXXX consisted of XXXX (R. 2204-2207, 2223, 2225).

XXXX described the grading categories contained in the progress reports. She described XXXX (R. 2220-2222, 2247; Ex. P-Q).

XXXX reviewed the Student’s progress reports from December 2009. She testified that in the XXXX (R. 2212-2215, 2219-2220, 2343-2345, 2362-2363; Ex. P-Q).

In the area of XXXX, the Student was working on XXXX (R. 2224-2228, 2236, 2248, 2400; Ex. P-Q).

In the area of XXXX, XXXX stated that XXXX (R. 2239-2240, 2247, 2395-2396; Ex. P-Q).

In the area of XXXX, XXXX testified that XXXX (R. 2243-2245, 2248, 2392-2394; Ex. P-Q).

In the area of XXXX, XXXX testified that XXXX (R. 2245-2247, 2357-2359, 2410-2412, 2425-2426; Ex. P-Q).

The Student also received XXXX (R. 2248-2254, 2366-2368, 2432-2433; Ex. PQ).

On cross-examination, XXXX confirmed that the Student did not have XXXX (R. 2342-2343, 2346, 2414-2415).

XXXX testified that XXXX (R. 2255-2263, 2364-2366; Ex. P-Q).

XXXX explained that with respect to XXXX (R. 2263-2266).

XXXX testified that XXXX and consists of XXXX (R. 2268-2270).

This Student is grouped with XXXX (R. 2271-2272, 2366, 2428-2429).

XXXX stated her familiarity with a XXXX (R. 2274-2279, 2370-2374).

XXXX stated that XXXX (R. 2279-2283).

XXXX described the Student’s XXXX functioning at XXXX. She stated that XXXX (R. 2283-2288, 2375).

XXXX testified that during her observation of the Student in XXXX (R. 2289-2296).

XXXX stated that in her capacity as XXXX she worked with families of students who were transitioning from XXXX. She stated that XXXX (R. 2296-2299, 2348-2351).

XXXX described her understanding of XXXX and stated that this Student’s classes for the 2009/10 school year were not XXXX (R. 2299-2301, 2377-2379, 2434).

XXXX reviewed the District’s IEP containing its recommended program for the 2009/10 school year. She stated that the IEP was not reviewed as part of the Student’s admission packet, but that she reviewed it subsequent to the admissions process. She stated that she was not familiar with the XXXX, and could not comment on its appropriateness. On cross-examination, she reviewed the Student’s IEP prepared by the District’s CSE and stated that the XXXX appeared to be appropriate. She also reviewed the Student’s goals, and also stated that they seemed to be appropriate. On cross-examination, XXXX stated that she had no opinion as to whether the Student required XXXX and that she did not know whether XXXX needs those services. On redirect examination, XXXX stated that the Student receives XXXX. She also stated that she had no knowledge about the District’s recommended program and had no opinion over the recommendations for XXXX and XXXX. She stated her opinion that XXXX provides the Student with an appropriate program in the least restrictive environment. She described it as a XXX (R. 2301-2303, 2330-2331, 2381-2384, 2431-2432; Ex. SD1).

On cross-examination, XXXX set forth her understanding of the Student’s abilities and special education needs. She stated that the Student has (R. 2328-2330, 2340-2341).

On re-direct examination, XXXX stated that XXXX (R. 2433-2436).

XXXX is the Student’s XXXX. She testified that the Student was placed in the XXXX School, located in XXXX for the 2009/10 school year, and that prior to that time, XXXX was a student at the District’s XXXX for one year, and prior to that, XXXX attended the District’s XXXX for XXXX (R. 2763-2764).

XXXX stated that the Student has several diagnosed XXXX (R. 2764-2766).

XXXX described the Student’s XXXX (R. 2766-2770, 2775).

XXXX reported that at the age of XXXX (R. 2770-2774, Ex. SD-11).

XXXX testified that during the Student’s years in XXXX (R. 2774-2775; Ex. SD11).

XXXX stated that at the age of XXXX, in the XXXX school year, the family was located within this District, and XXXX was found eligible by the CSE for services. XXXX was classified as a XXXX. For XXXX, the Student attended the XXXX program, consisting of XXXX at the XXXX. XXXX continued to receive XXXX. XXXX was also recommended for XXXX. She was in agreement with the CSE’s recommendations. She stated that the Student had a good year, XXXX enjoyed XXXX, and XXXX had friends. She also stated that neither the XXXX nor XXXX in the classroom indicated any XXXX concerns about the Student. A review of the IEP from the Student’s re-evaluation review indicates that in the area of XXXX, the Student had XXXX (R. 2776-2780, 2782-2783, 3323-3328; Exs. SD-9, SD-11).

On cross-examination, XXXX stated that she was not in attendance at a Subcommittee CSE meeting on October 20, 2004, where recommendations were made to XXXX. She stated that XXXX (R. 3323-3327; Ex. SD-10).

XXXX stated that the Student was again found eligible for special education and related services for XXXX. XXXX continued to be placed in the XXXX, and XXXX. She was pleased with the Student’s progress, as was XXXX teacher. She stated that the XXXX. A review of the IEP indicates that the Student XXXX. On cross-examination, XXXX said that she had no specific recollection of the meeting and that she relied on the statements contained in the CSE minutes as being truthful (R. 2781-2789, 3330; Ex. SD-8).

XXXX testified that for the XXXX school year, which would have been the Student’s XXXX, the Parents felt that they wanted to give XXXX an opportunity to explore other options for programming, other than the XXXX class. The CSE Chairperson indicated that XXXX. The Parent stated that neither XXXX teacher nor XXXX indicated to her that XXXX, and that no member of the CSE indicated that XXXX. The Student’s IEP states that the Parent’s requested an opportunity for the Student to be placed in XXXX. On cross-examination, XXXX reviewed the minutes and stated that having no specific memory, she relied on the minutes and that “nothing appear[ed] to be out of sorts” (R. 2789-2796, 3331-3332; Ex. SD-7).

During the XXXX school year, the Student was placed in XXXX. XXXX stated that XXXX had a good year, that it was XXXX. She also stated that the Student made a lot of friends, that XXXX. The Parent stated that the Student made a lot of progress. She stated that XXXX instruction was delivered XXXX (R. 2796-2804).

XXXX testified that she was present at the CSE meeting that was held in preparation for the Student’s program for the XXXX school year. She stated that she agreed with the information contained in the minutes. The comments indicate that XXXX. On cross-examination, XXXX reviewed the minutes and stated she had no disagreement with them (R. 2830-2833, 3332-3333; Ex. SD-6).

XXXX testified that the CSE recommended placement for the Student for the XXXX school year in XXXX. She stated that XXXX was also recommended for XXXX. A review of the IEP also includes XXXX The Parent stated her agreement with the recommendations (R. 2833-2836; Ex. SD-6).

XXXX stated that the Student “had a great year” and that XXXX worked hard. She stated that the Student was placed with some of the same students with whom XXXX was placed in XXXX in the prior year, and that XXXX. XXXX described conversations she had with the Student’s teachers at parent/teacher conferences held on XXXX and XXXX. She confirmed that the information contained in the Student’s Progress Report for the XXXX school year, and the information contained in a Teacher Report form, was consistent with the information the Parent received at the parent/teacher conferences. She also reviewed a XXXX and confirmed that XXXX. The Parent stated that the Student was doing very well in XXXX. XXXX reviewed the minutes and stated that they were accurate (R. 2837-2850, 3334-3335; Exs. SD-29, PR, P-S).

A review of the Teacher Report Form dated XXXX indicates that the Student’s XXXX (Ex. SD-29).

The Parent testified that there came a time during the XXXX school year that the Student XXXX. A review of the IEP indicates XXXX. On cross-examination, XXXX confirmed that she never requested an impartial hearing or mediation with respect to any of the IEPs created for the Student through the XXXX. She also confirmed that she XXXX (R. 449-450, 2851-2862, 3339-3343; Exs. SD-5, P-T).

XXXX testified that during the XXXX school year, the teachers in the XXXX She stated that the CSE held an annual review for the 2008/09 school year, and that the comments in the IEP reflect the discussions that occurred at the meeting. She stated that she did not recall XXXX as having been present at the meeting, she did not recall her participation in the meeting in any way, and she did not know her prior to the CSE meeting held in March 2008. She reviewed the minutes of the meeting and remembered that the Student’s teachers felt XXXX (R. 2862-2871; Ex. SD-4).

XXXX testified that the CSE’s recommendation for the 2008/09 school year was XXXX (R. 2871-2876; Ex. SD-4).

On cross-examination, XXXX stated that the minutes contained in the annual review IEP for the 2008/09 school year were accurate and that the Parents were in agreement with the recommendations. She also reviewed the IEP for the Student’s program review on January 13, 2009, and stated that she did not disagree with anything in the minutes and that XXXX. That, however, was not the information she provided to the XXXX School during the application process. When asked to elaborate on what she meant by her statement that XXXX (R. 3343-3349, 3386-3388, 3390; Exs. SD-78, SD79).

Also on cross-examination, the Parent stated that as of January 2009, she believed the Student needed XXXX (R. 3350-3353, 3354-3359, 3362-3382; Exs. SD-17; SD-49, SD-78, SD-79, P-A).

Ms. P stated that prior to the Student’s move to XXXX for the 2008/09 school year, she attended a coffee presentation in the cafeteria, to which parents of children with special needs were invited, to hear information about the special education programs that were offered at XXXX. She stated that the then school principal of XXXX, XXXX, was very focused on letting parents know that the demands at XXXX were different from XXXX; that XXXX (R. 2877-2890; Ex. P-U).

XXXX testified that after the coffee, she had a discussion with XXXX and expressed her concerns for the Student’s success at XXXX. Ms. XXXX asked whether the Parent was interested in viewing the XXXX class, and she and her husband agreed to observe XXXX’s XXXX. They observed on June 13, 2008. The Student visited the XXXX two weeks after the Parents’ visit. A few days prior to the coffee, the Student went with XXXX classmates from XXXX to visit XXXX. XXXX did not visit the XXXX. The Parent testified that no one from the CSE, XXXX, XXXX, or XXXX suggested that the Parents observe the XXXX. They determined that the Student did not need to be in XXXX. She stated that XXXX, XXXX, and XXXX did not contact the Parents to ask them to reconsider the appropriateness of XXXX (R. 2891-2901).

XXXX stated that she had no knowledge that the Student’s name appeared on XXXX’s class list for the 2008/09 school year, that at no time following the March 2008 meeting did anyone contact her to consider placement for the Student for the 2008/09 school year, and that no one indicated to her that the Student’s recommendation for the 2008/09 school year was the XXXX. She did not remember XXXX sending any materials to her home during the summer 2008. The Parent testified that the Student participated in XXXX services with XXXX during XXXX and that she sent XXXX an email asking XXXX opinion as to whether the XXXX was appropriate or whether XXXX should be in the XXXX class. XXXX responded that placement in XXXX would be “the most ideal setting” for the Student, since XXXX (R. 2901-2911; Ex. P-V).

On cross-examination, XXXX did not recall having any formal meeting with XXXX about the XXXX, but that she was the one who raised the issue about the appropriateness of the XXXX class for the Student for the 2008/09 school year, and not District personnel. She recalled having a meeting with XXXX, the incoming Principal of XXXX, who replaced XXXX, but she didn’t recall the purpose of the meeting, and later in her testimony indicated that there was a discussion about placement for the Student in the XXXX or XXXX (R. 3289-3297).

XXXX testified that on August 4, 2008, they took the Student for a XXXX evaluation to obtain additional information with respect to the appropriateness of the Student’s placement in the XXXX for the 2008/09 school year. XXXX testified that XXXX thought XXXX. A review of the report shows that XXXX. The Parents did not share XXXX report with the District (R. 2911-2915, 3424; Ex. P-W).

XXXX stated that she worked with the Student on XXXX and that XXXX returned to school in September 2008 with XXXX. The Parent stated that XXXX was the Student’s XXXX, XXXX, was the Student’s XXXX, and XXXX was the XXXX. The Student was familiar with XXXX as she XXXX. The Parent stated that sometime in September 2008, she contacted XXXX about XXXX (R. 2916-2919).

XXXX testified that at the parent/teacher conference in October 2008, she asked XXXX about the XXXX. She responded that XXXX and XXXX responded that the XXXX was used in the XXXX, and that XXXX (R. 2919-2922; Exs. SD-51, SD-52, SD57).

The Parent testified that they decided in November 2008 to obtain an independent evaluation, in that they did not want to wait for the District to conduct triennial testing, and in that the Student “XXXX” and considering that XXXX can be associated with XXXX, they believed it would be a good idea to have the Student thoroughly evaluated. XXXX was evaluated by the XXXX. XXXX conducted a XXXX. The Parent provided the District with a copy of the report, identified as School District Exhibit 25. Ms. P confirmed that she redacted information from the report prior to providing it to the District. She stated at that point that the Parents were just interested in XXXX and she crossed out “stuff” that “just was not pertinent to the discussion with XXXX.” XXXX stated that the redacted information related to the Student’s XXXX. She stated that they did not agree with the information so she deleted it prior to providing the report for the CSE’s review. She stated that XXXX did not participate in the CSE meeting, and she did not advise XXXX that she was going to remove information from the report before submitting it to the CSE. On cross-examination, she denied deleting any other information from XXXX’ report other than that which was contained on page 3, and stated that she did not know whether XXXX deleted additional information. She also stated that following the CSE meeting, she had a discussion with XXXX, who stated that she obtained the information in question from XXXX, who obtained the information from the Parents. XXXX testified that she did not ask XXXX to change the report, even though she believed it was not accurate (R. 2923-2930, 2933-2943, 3196-3201, 3211-3212; Exs. SD-25, P-X).

On cross-examination, XXXX testified that she had no recollection as to whether XXXX faxed her report to the Parents, or whether she provided a copy of XXXX’ report to XXXX in connection with her application for admission. She also did not know how a copy of XXXX’ report came to be sent from XXXX to the District’s attorney, pursuant to a subpoena. XXXX acknowledged that she handwrote the Student’s middle name on the 1st page of Parents’ Exhibit X. She did not know who underlined information on the 3rd page of Parents Exhibit X. She confirmed that the blacked out paragraph on District Exhibit 25 was done by either herself or XXXX She also confirmed that the section entitled, “XXXX” that appears on pages 9 and 10 of District Exhibit 25A is missing from District Exhibit 25, and that the fax header on School District 25, at page 10, is missing the fax header of Page 11/19. XXXX stated that she had no explanation regarding why the entire section on XXXX is missing from School District 25 that she provided Exhibit 25 to the District. She also had no recollection of providing School District 25-A to XXXX (R. 3253-3254, 3261-3271; Exs. SD-25, SD-25A, P-X).

Also on cross-examination, XXXX compared page 8 of Parent Exhibit X, page 8 of School District ^[25], and page 9 of School District 25A, and she confirmed that the copy of the report that she gave to the District was missing the entire section on XXXX, including scores from an administration of the XXXX. She stated that she had no explanation as to why that information was missing from the copy she provided to the District. XXXX stated that she had no recollection providing information to XXXX that, as of the time of testing in November and December 2008, that the Student continued to XXXX; that she did not remember telling anyone that the Student XXXX She also stated that she did not contact anyone at the XXXX to ask them to change or remove the disputed language from the report (R. 3272-3279; Exs. SD-25, SD-25A, P-X).

Also on cross-examination, the Parent reviewed information contained on page 7 of 18 in Parent Exhibit X relating to XXXX (which is missing from School District Exhibit provided to XXXX. She also did not recall XXXX as part of the evaluation (R. 3279-3287, 3289; Exs. SD-25, SD-25A, P-X).

XXXX testified that the information contained under XXXX was not relevant to the educational programming that she was requesting for the Student. On cross-examination, she agreed that it was important for the CSE to have all available information regarding a student when considering educational recommendations. She stated that XXXX chaired the CSE meeting, and that she never chaired any of the Student’s previous annual reviews or program reviews, because the January 2009 meeting was the first CSE meeting the Student had at XXXX. The Parent stated that she asked the CSE for XXXX to address XXXX. The Parent confirmed that XXXX did not recommend XXXX, but the CSE agreed to it. XXXX’ report did refer to “XXXX” in her recommendations. XXXX testified that at the January 2009 CSE meeting, none of the members raised concerns about the Student’s XXXX (R. 2943-2948, 3196; Exs. SD3, SD-25).

XXXX testified regarding an e-mail that she received from the XXXX during the 2008/09 school year, XXXX. She stated that XXXX sent her an e-mail regarding the Student’s performance in class on January 7, 2009. The Parent responded. XXXX stated that she knew XXXX from their prior participation in PTA, that XXXX’s and XXXX’s are friends, and that their families went out for pizza after attendance at a XXXX testified that an annual review was held regarding the Student’s programming for the 2009/10 school year on March 24, 2009. She stated that the meeting was chaired by XXXX, and that there was no communication between her and XXXX between the time of the January 2009 meeting and the annual review held in March 2009. XXXX stated that prior to the meeting, she and her husband thought that the CSE would continue to recommend XXXX. On cross-examination, however, she stated her belief that XXXX (R. 2966-2968, 3390-3394; Ex. SD-2).

XXXX stated that a different program was discussed at the March 24 CSE meeting, and that the Parents asked for information about the make-up of the class, but that it was not provided. A review of the IEP from the March 24 meeting indicates

XXXX. The Parents’ e-mail to XXXX shows otherwise (R. 2968-2981; Exs. SD-2, SD49, P-A).

XXXX stated that placement in the XXXX class for the Student for the 2009/10 school year “was briefly mentioned” but that she did recall who specifically mentioned it. She also stated that XXXX was discussed first, and that XXXX She stated that no one at the meeting indicated that XXXX, and that it was never recommended. She said there was no discussion of the XXXX class at the March 24 meeting. She stated that “everyone was comfortable with the recommendation of XXXX” because “there were no objections to it” (R. 2981-2985).

XXXX testified that prior to the March 24 meeting, neither XXXX nor XXXX raised concerns about the Student and the XXXX. A review of the Student’s progress reports from XXXX, XXXX, and XXXX, shows otherwise. The Parent stated that it was mentioned at the meeting that XXXX. She stated that someone at the CSE indicated that the Student would need XXXX, and that was part of the XXXX. She also stated her understanding that there was XXXX She stated that the Parents left the meeting in agreement with the XXXX and advised the CSE that if they had any questions they would let them know (R. 2985-2987, 3433-3439; Exs. SD-27, SD-28, SD-29, SD-30, SD-31, SD-51, SD-52, SD-57).

XXXX stated that XXXX, the Student’s XXXX, contacted the CSE subsequent to the March 24 CSE meeting asking for another CSE meeting because they wanted to explore other options because XXXX, and they wanted clarification about the program. She also stated that following the March 24 meeting, she e-mailed XXXX and XXXX regarding the Student’s XXXX, because XXXX offered the possibility of XXXX for the remainder of the 2008/09 school year, given the Student’s XXXX. The Student sat with XXXX, but XXXX. The Student didn’t realize that XXXX. XXXX responded to the Parents’ e-mail and scheduled another CSE meeting for May 6, 2009 (R. 2988-2999; Exs. SD-1, SD-65, P-A, P-H, P-I, P-J).

XXXX testified that the Parents called the meeting to discuss in further detail the XXXX recommended on March 24, which was discussed for a few minutes, and then “suddenly the XXXX was being recommended to us in detailed conversation.” She stated that the conversation about the XXXX was initiated by XXXX and/or XXXX and that the Parents were “shocked.” XXXX stated that they all knew that the Student had XXXX (R. 2999-3003).

XXXX stated that between March 24 and May 6, she had no discussions with anybody indicating that the Student’s XXXX (R. 3003-3010).

XXXX testified that the only information given to the Parents about the difference between the XXXX and the XXXX was that XXXX (R. 3012-3016).

XXXX stated that there was no recommendation by the CSE at the March 24 meeting for XXXX (R. 3016-3021).

XXXX testified that after the discussion about the XXXX, XXXX asked the Parents if they wanted to consider XXXX, and the Parents asked the CSE whether XXXX, and they responded that they did not. She stated that the CSE did not discuss XXXX (R. 3021-3024).

XXXX reviewed an e-mail that the Parents sent to XXXX, stating that they had no choice but to accept XXXX and it was their belief that that was the program that would appear on XXXX IEP for the 2009/10 school year. However, on cross-examination, XXXX stated that as of May 8, 2009, she believed that the CSE’s recommendations from the March 24 meeting were appropriate. A review of an e-mail sent by the Parents to XXXX on April 2, 2009, indicates otherwise. XXXX stated that the Parents did not receive the IEP until near the end of August 2009. On cross-examination, XXXX confirmed that she recalled receiving the proposed IEP together with a cover letter sometime on or about August 12, 2009. She also confirmed that she received the IEP that resulted from the March 24, 2009 CSE meeting on May 6, 2009. XXXX stated that even if the CSE recommended XXXX in May 2009 she could not say whether they would have sent the Student to XXXX for the XXXX grade, because at that point in time they were losing confidence in the District. She stated that XXXX did not respond to the Parents’ e-mail. The Parent stated that between March 24, 2009 and late August 2009, she spoke with several parents about CSE recommendations made for their children in an attempt to find out more information about the CSE’s recommendation made for the Student (R. 3024-3036, 3311-3315, 3425, 3427; Exs. SD-1, SD-2, SD-37, SD-39, SD49, P-B).

XXXX testified that on June 24, 2009, she sent an e-mail to XXXX requesting the final IEP for the 2009/10 school year. She stated that they were preparing for XXXX and they wanted to provide the private school with an IEP that appropriately reflected their program choice for the Student. She stated that she received no response, and left a telephone message with XXXX’s secretary in the last week in July, but that she did not receive a call back. On August 4, 2009, the Parent sent another e-mail to XXXX asking for the IEP. XXXX responded by e-mail that all remaining IEPs would be sent out by the end of the following week. She stated that she received the finalized IEP between 10 and 12 days after XXXX’s e-mail, on approximately August 18, 2009 (R. 3066-3072; Ex. P-C).

XXXX stated that the Student did not attend XXXX, because XXXX. She stated that she worked with the Student at home. She testified that she received an e-mail from XXXX on May 21, 2009, stating that the Student was XXXX. XXXX stated that she received the information from XXXX after she was informed that the Student would not XXXX (R. 3081-3088; Ex. P-AA).

XXXX stated that she and XXXX first interviewed at XXXX in April 2009. She stated that they also looked at XXXX in February 2009, but that the Student was not accepted into the program. She stated that they were searching for a program that would teach the Student XXXX. She stated that XXXX came highly recommended, and that XXXX at the XXXX said that only a very minute percent of children they saw for testing were actually recommended for the program. They met with XXXX in April 2009 and she said that the Student’s profile seemed to fit XXXX, but that they would need to meet with XXXX as well. The Parents toured the school, and they XXXX. She described XXXX. The Student visited the school for two days, on April 27 and April 28. They received an acceptance letter somewhere around May 5, 2009 (R. 3089-3094, 3097-3098; Exs. SD-50, P-BB).

XXXX described the Student’s experience at the intake. XXXX was matched with another student by XXXX. XXXX joined in XXXX (R. 3094-3096).

XXXX testified that the Parents made their decision to send the Student to XXXX on May 8, when they wrote a check for the deposit. On cross-examination, she confirmed that she also submitted the enrollment agreement at that time. She also confirmed that under the terms of the enrollment agreement, the Parents were obligated to provide a XXXX nonrefundable deposit and that if they did not cancel the agreement prior to July 15, 2009, they would have been responsible for the entire sum of XXXX for tuition. XXXX stated that when the Parents left the meeting on May 6, they felt that the CSE really did not know what to do with the Student, and when they returned from the CSE meeting and saw the acceptance letter from XXXX, they believed it was fate. The Parent stated that they did not want a recommendation for the XXXX to appear on the IEP that they were sending to XXXX, because they felt it did not properly reflect XXXX needs, even though she acknowledged that the Student had already been accepted into XXXX by that time. She stated that they chose the XXXX because XXXX, and that was the only reason that they wanted the recommendation on the final IEP (R. 3098-3104, 3305-3308, 3317-3319; Exs. D-77, P-CC).

XXXX stated that she observed the Student at XXXX during the 2009/10 school year and spoke with his teachers and XXXX, and she stated that each of the Student’s classes are XXXX (R. 3104-3107).

XXXX said that the Student XXXX. She also stated that testing was conducted in the beginning of the year and at the end of the year by XXXX. The Parent stated that she did not provide copies of any of the XXXX reports to the District, but that she believed that XXXX sent reports directly to the District, even though she did not consent to sending records to the District. She stated that the District received the reports before she did (R. 3107-3122).

XXXX testified that she received the Student’s December 2009 progress reports and discussed XXXX On cross-examination, XXXX stated that she did not know whether other students in the XXXX program had the identical goals that appeared on this Student’s progress report (R. 3129-3133, 3468-3470; Ex. P-Q).

XXXX described some of the XXXX (R. 3134-3136).

XXXX stated that the Student receives XXXX (R. 3136-3138, 3140-3141, 3431-3432; Exs. P-EE, P-FF).

XXXX testified that there was a schedule change in October 2009, in which the Student’s XXXX (R. 3153-3157, 3160-3163, 3470-3471; Ex. P-GG).

XXXX stated that the Student receives XXXX (R. 3169-3175).

XXXX testified that the Student XXXX (R. 3175-3179).

XXXX stated that the Student XXXX (R. 3181-3185).

XXXX stated her opinion that the Student does not necessarily require a private school education to make progress. She stated that XXXX needs an education with individualized programming that will fulfill XXXX academic needs, and whether the curriculum is provided by a private or public institution does not make a difference (R. 3186-3187).

XXXX is a XXXX who, at the time of her testimony, had been employed by the District for 6 years. She is dually certified in XXXX and XXXX. During the 2009/10 school year, she was a XXXX at the XXXX, and she was XXXX. During the 2009/10 school year, there were XXXX (R. 3519-3525, 3529-3530).

XXXX testified that she knows the Student by sight; that she never had a conversation with XXXX; that she never observed XXXX in class; that she did not review any educational documents, IEPs, or educational testing relating to the Student; that she never had conversations with any of XXXX teacher regarding XXXX abilities; and she never spoke with administrators about the Student, except in connection with the impartial hearing (R. 3532-3533).

XXXX was given information as to the Student’s XXXX (R. 3534-3539; Ex. P-LL).

XXXX testified that she had XXXX (R. 3540-3544).

On cross-examination, XXXX testified that XXXX (R. 3544-3547).

On re-direct examination, XXXX testified that her understanding that XXXX (R. 3647-3549).

XXXX, the Student’s XXXX, testified that the Parents decided to look at a private school for the Student to determine whether there were any alternatives that could teach the Student XXXX. He stated that it didn’t matter whether the program was public or private, just “the best program that was out there.” He stated that XXXX (R. 3551-3552).

XXXX testified regarding the CSE meeting that occurred on March 24, 2009. He stated that the Parents were not provided with a draft IEP, which historically they were, and they automatically assumed that the Student would be recommended for a XXXX, and that a change in recommendation was a surprise to them. He stated that the CSE had a difficult time articulating the nature of the XXXX they were recommending with respect to XXXX (R. 3553-3554).

XXXX stated his understanding at the March 2009 CSE meeting that the XXXX. XXXX also stated that the Parents reached out to XXXX to obtain more information about the proposed placement (R. 3556, 3559; Exs. SD-2, SD-49, P-A).

XXXX testified that another CSE meeting was held on May 6, 2009, and that he attended. The Parent stated that their reactions to the meeting were “shock, disappointment, and confusion” because the Parents believed that they were to receive more information about the XXXX program. XXXX stated that there was no XXXX. He also stated that the meeting was “chaired, spearheaded and driven” by XXXX and that it was his opinion that the CSE changed its mind about the March 2009 placement because they “had a different agenda at that point, and were, perhaps, preparing themselves for an eventual hearing.” He described the May 6 meeting as “adversarial” and stated that the members “were being pressed to make a decision” by being polled by XXXX, which never occurred at any of their prior CSE meetings. All members raised their hands in support of the XXXX program (R. 3559-3565; Ex. SD-1).

XXXX stated that at the May 6 meeting, the Parents indicated their desire to return to the March 24 CSE recommendations. The information that is contained in the CSE minutes from the May 6 meeting is that, “Parents did not disagree with recommendations at the time of the meeting, but requested time to think about it and email the CSE Chair at a later date. CSE Chair shared that the CSE was obligated to make a recommendation and they have a right to appeal. It was agreed that they would email the CSE chair by the end of the week to share their decision.” The record reflects that the Parents sent an e-mail to XXXX dated May 8, 2009 in which it was stated, “We have discussed the options to the extent possible given the pressure to respond to you today, as you requested. Accordingly, XXXX. At this point, we guess we have no choice but to go with XXXX. I note that while the Parents testified that they were in favor of the program recommended at the March 24 meeting, their e-mail to XXXX dated April 2 states otherwise (R. 3567-3570; Exs. SD-1, P-A, P-B).

XXXX testified about XXXX (R. 3562-3584, 3586-3588, 3613-3616; Exs. P-II, PMM-1, P-MM-2).

On cross-examination, XXXX testified that XXXX’ report was faxed to the Parents, and that he had the document faxed from his office to the District. He stated that he discussed blacking out information on pages 1 and 3 of the report because they had “more questions or clarifications to ask XXXX in connection with that particular paragraph.” XXXX stated that he did not recall having ever sent the District an unredacted version of XXXX’ report. XXXX compared the document that he provided to the District with the document that was received by the District’s attorney pursuant to a subpoena and agreed that an additional entire section on XXXX was missing from the copy he provided to the District. When asked for an explanation as to why the report provided to the District did not include the section on XXXX, the Parent responded, “None whatsoever.” He also stated that he had no explanation as to why the report he provided to the District was missing 3 paragraphs under the heading XXXX, on page 7 of the report. XXXX stated that no one else was involved in providing the confidential XXXX report to the District besides himself, or XXXX, but that perhaps a secretary faxed the report to the District. He stated that he had no specific recollection of having a discussion with a secretary asking him or her to fax the document to the District (R. 3636-3648; Exs. SD-25, SD-25A, P-X).

Also on cross-examination, XXXX stated his recollection that the XXXX was discussed at the March 24, 2009 meeting as a matter of comparison to the final recommendation made by the CSE on that day, but the XXXX was never discussed as a an option or a potential recommendation. He did state, however, that the Parents conveyed the sentiment to the CSE that XXXX. XXXX also stated that he recalled meeting with XXXX, XXXX’s replacement as Principal, in August 2008 regarding whether they changed their minds about placing the Student in XXXX in favor of the XXXX for the 2008/09 school year (R. 3468-3651, 3654-3655; Ex. SD-2).

XXXX reviewed the IEP emanating from the May 6 meeting and stated that some of the information contained in the minutes was incongruous with his memory of the meeting. He identified portions of the minutes with which he disagreed (R. 3658-3665; Ex. SD-1).

XXXX testified that he is employed by the District as the XXXX of the XXXX, and at the time of his testimony he was employed in that capacity for 3 years. Prior to that time, he was XXXX for 6 years. Prior to his employment with the District, he was employed for two years as XXXX in XXXX and, for 6 years, as an XXXX at XXXX. He is multiply certified in XXXX, XXXX, and as XXXX (R. 3721-3725).

XXXX stated his familiarity with the Student in that XXXX during the 2008/09 school year. He testified that in the summer 2008, he had conversations with XXXX as part of his transition into XXXX. He stated that XXXX said that they needed to have a telephone conversation with XXXX to discuss the XXXX placement for the Student because XXXX, felt that the XXXX would be a more appropriate placement for XXXX. XXXX stated that XXXX said that she believed that the XXXX would be a more appropriate placement for the Student, and she and XXXX spoke about XXXX as a teacher. He said that XXXX responded that he and XXXX hadn’t made a decision yet and he wished to discuss it further with his wife. XXXX responded that she was finishing her time at XXXX shortly and that XXXX and the Parents would need to be in contact (R. 3725-3737).

XXXX testified that he had a meeting in his office with the Parents on August 6, 2008 and they discussed the Student’s placement. XXXX stated that placement letters were going out the following week and he wanted to be sure to send the correct letter to the Student with correct placement. They discussed the CSE recommendation for the XXXX, in comparison to the XXXX program. He stated that the Student’s name was placed on the XXXX class list by XXXX, even though the CSE had recommended

XXXX. XXXX stated that after their discussion, the Parents “decided that they would like to go with the CSE recommendation” and the Student was scheduled for the XXXX (R. 3737, 3744-3750).

On rebuttal, XXXX reviewed the copy of XXXX’ report that was provided to her by the Parents in January 2009 and noticed at that time the black redactions contained on pages 1 and 3. On cross-examination, she stated that at the time she reviewed Exhibit

25 prior to the January 2009 CSE meeting, she assumed that it was XXXX and that it wasn’t relevant to the issue of XXXX. She compared District Exhibit 25A with District Exhibit 25 and noted missing information on pages 7, 9, and 10 of Exhibit 25. XXXX confirmed that Exhibit 25A was not before the CSE when it made its recommendations on March 24, 2009 and May 6, 2009. She stated that the first time she saw the unredacted document, i.e., Exhibit 25A, was just prior to the Student’s annual review for the 2010/11 school year (R. 3780-3781, 3786-3789, 3809-3810; Exs. SD-25, SD-25A, P-X).

XXXX reviewed Exhibit 25A and stated that the first time the document appeared before the CSE was in June 2010; that from the new material that she hadn’t previously seen, the Student was XXXX. XXXX stated that had she had the information contained in Exhibit 25A at the time of the March 2009 CSE meeting, she would have not supported placement for the Student in XXXX as recommended by the CSE in March 2009. She stated that the new information about the Student’s XXXX (R. 3789-3791).

XXXX stated that she had already felt at the March 2009 and May 2009 CSE meetings that the XXXX was appropriate for the Student, even in the absence of the information that was redacted from XXXX’ report by the Parents (R. 3808).

On cross-examination, XXXX confirmed that she did not XXXX (R. 3810-3811).

XXXX also testified that other than the redactions on pages 1 and 3 of District Exhibit 25, she was unaware of any additional missing information, specifically with respect to the Student’s XXXX, and thought that the gaps in information at pages 7, 9, and 10 were due to slippage in the fax machine (R. 3823-3825).

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.D.N.Y. 2007); see also O’Toole v. Olathe District School Unified School District No. 233, 144 F.3d 692, 701 (10th Cir. 1998)]. Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App. LEXIS 17947].

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

Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132]. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student with an opportunity greater than mere ‘trivial advancement’” [Cerra, 427 F.3d 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or 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.D.N.Y. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.D.N.Y. 2008)]. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade” [34 C.F.R. Section 300.101(c)(1); 8 N.Y.C.R.R. 200.4(c)(5)]. The 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.D.N.Y. 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.D.N.Y. 2006); Board of Education of Poughkeepsie City School District v. O’Shea, 353 F.Supp.2d 449, 454 (S.D.N.Y. 2005) [quoting Walczak, 142 F.3d 119, 122 (2d Cir. 1988)].

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs [34 C.F.R. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], 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.D.N.Y. August 27, 2010; Application of the Board of Education, SRO Appeal No. 10-097; Application for a Review of a Determination by a Hearing Officer, SRO Appeal No. 10-123; Application for a Review of a Determination by a Hearing Officer, SRO Appeal No. 10-101.

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; XXXX 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.D.N.Y. 2001), citing Town of Burlington v. Department of Education, 736 F.2d at 773, 801-02 (1st Cir. 1984) aff’d 471 U.S. 359 (1985). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent’s conduct precluded the CSE’s ability to develop an appropriate IEP [Warren G. v. Cumberland County School District, 190 F.3d 80, 86 (3d Cir. 1999); see Application of the Board of Education, Appeal No. 04-102; Application of the Board of Education, Appeal No. 04-026.

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)].

At the outset, I note that the Parents challenge the appropriateness of the Student’s educational placement for the 2008/09 school year, while XXXX simultaneously testified that she and her husband were in agreement with the SubCSE’s recommendations for XXXX for the 2008/09 school year (R. 2871-2876; Ex. SD4). XXXX also testified that the Student XXX. She stated just the opposite in the information she provided on the XXXX (R. 3344-3349, 3386-3388, 3390; Exs. SD-3, SD-79).

It is uncontroverted that the Student attended the XXXX during XXXX (R. 75-80, 2789-2796; Ex. SD-7). The Parents assert that it was them, and not the District, who inquired as to the appropriateness of the XXXX for the 2008/09 school year. The record reflects that starting with the 2006/07 school year, the Parents requested placement in XXXX for the Student for XXXX, and despite the reservations of District staff XXXX, they went along with the Parents’ requests in an attempt to reach consensus. Even if the Parents are correct in their assertion that the inquiry over the appropriateness of the XXXX for the 2008/09 school was initiated by them, and not by the District, it is uncontroverted that the Parents rejected it for the 2008/09 and 2009/10 school years (R. 449, 1204, 3493-3495; Exs. SD-1, SD-2, SD-5, SD-7).

The evidence shows that the Sub-CSE had a XXXX for the Student on January 3, 2008, and that the Sub-CSE had a number of updated evaluations which it considered in making its recommendations on March 4, 2008, for the 2008/09 school year. The Student underwent XXXX (Exs. SD-4, SD-5, SD-12).

The Student underwent XXXX (Ex. SD-13).

The Student underwent XXXX (Ex. SD-14).

The Student also underwent XXXX (Ex. SD-15).

The Sub-CSE also considered XXXX (Ex. SD-16).

The Sub-CSE also had XXXX (R. 449, 1204, 3493-3495; Exs. SD-1. SD-2, SD-5, SD-7, SD-17, SD-18).

The Sub-CSE met for the Student’s annual review of March 4, 2008. The minutes reflect that XXXX (Exs. SD-4, SD-5).

In the area of XXXX (Exs. SD-4, SD-12).

For the 2008/09 school year, the Sub-CSE recommended XXXX (R. 531-534, 854-856, 1362-1363; Ex. SD-4). The Student was recommended for XXXX (R. 1369-1376, 1409-1410, 1440-1442; Ex. SD-4).

The Student was recommended for XXX (Ex. SD-4).

The Student was recommended to XXXX (Ex. SD-4).

The Student was not recommended for XXXX (Ex. SD-4).

The Sub-CSE developed an annual goal in the area of XXXX. It recommended 4 annual goals in the area of XXXX. In the area of XXXX, the CSE developed 2 annual goals, which included XXXX (Ex. SD-4).

In the area of XXXX, the Sub-CSE developed 4 annual goals, including XXXX (Ex. SD-4).

The Sub-CSE also recommended 4 annual goals in XXXX, including XXXX (Ex. SD-4).

The evidence shows that the IEP developed by the Sub-CSE on March 4, 2008, for the 2008/09 school was reasonably calculated to enable the Student to receive educational benefits at the time it was devised. I find that the IEP developed by the Sub-CSE, in conjunction with the Parents, offered the Student personalized instruction with sufficient support services to permit XXXX to benefit educationally from instruction. The evidence shows that the Parents participated in the development of the IEP and they agreed with the Sub-CSE’s recommendations. I also find that the Sub-CSE’s recommended placement was provided in the LRE, in that XXXX.

I further find that the IEP developed on March 4, 2008 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. I also find that the IEP was properly implemented.

Although the Parents argue that, with the exception of XXXX did not share any XXXX with them about the Student’s XXXX during the 2008/09 school, that assertion is belied by the evidence. Both XXXX and XXXX notified the Parents about the XXXX (R. 852-853, 944-951, 989-993, 1005-1027, 1194-1195, 1197-1198, 1217-1221, 1228-1231, 1392-1394, 1440-1447; 1561-1562; Exs. SD-28, SD-51, SD-52, SD-55, SD-56, SD-57, SD-59).

Although XXXX testified under oath that that the Student XXXX as of the January 13, 2009 meeting, her actions spoke louder than her words. It is uncontested that the Parents referred the Student for a private XXXX by the XXXX, due to their concerns with XXXX; that the Student was assessed in late November and early December 2008 by XXXX; and that they started looking into private school placements at least as early as January 2, 2009, when XXXX executed consents for release of educational records for possible placements at XXXX and XXXX. XXXX testified that the Student’s application for admission to XXXX was rejected; that XXXX completed a Fall Application for Admissions for the Student’s commencement at XXXX in September 2009 on January 5, 2009, on the recommendation of XXXX; when asked to report on the Student’s XXXX as of the date of the application, XXXX stated, “XXXX” (R. 3089-3091; Exs. SD-25A, SD-46, SD-50, SD-78, P-X).

When asked to describe her child’s XXXX. The evidence shows that none of these concerns were expressed to the Sub-CSE by the Parents, even though they initiated the review that occurred on January 13, 2009. XXXX emphasized in her testimony that she called the Sub-CSE meeting for the limited purpose of XXXX. Moreover, she provided the Sub-CSE with an incomplete copy of XXXX’ evaluation and purposely deleted critical information with respect to the Student’s XXXX, as set forth by XXXX as part of her report on XXXX. It was disclosed in the missing section that the Student XXXX. None of this information was shared by the Parents with the Sub-CSE (Exs. SD-3, SD-25, SD-25A, SD-78, P-X).

Moreover, the Parents deleted vital information from XXXX’ report that contained results of testing conducted by her with respect to XXXX issues, the entire XXXX that provided information regarding XXXX, and the results of XXXX. The deleted information related specifically to the Student’s XXXX, information that was critical to the Student’s annual review in preparation for the 2009/10 school year (R. 3789-3791, 3811, 3816, 3823-3825; Exs. SD-25, SD-25-A, P-X). Although the Parents assert that they deleted information with which they disagreed from XXXX’ report, they never contacted XXXX to ask her to correct any of the information which they believed was erroneous. Moreover, XXXX was never advised by the Parents that they physically modified her report, or that they provided an incomplete copy of her report to the District (R. 2923-2930, 2933-2943, 3196-3201, 3211-3212; Exs. SD-25, P-Z).

Given the totality of the circumstances, I find that the CSE’s recommendations for the Student for the 2008/09 school year were appropriate at the time they were developed, and that the recommendations continued to be appropriate based upon the limited information that was made available to the District by the Parents at the time.

The record shows that the Sub-CSE reconvened with the Parents for the Student’s annual review for the 2009/10 school year on March 24, 2009, and that a discussion about the XXXX as an alternate placement ensued. The evidence shows that the Parents rejected the notion of the Student’s placement in the XXXX for the 2009/10 school year, and that the Sub-CSE, in an attempt to reach consensus, devised XXXX that would satisfy the Parents, without “cheating” the Student out of services that he desperately needed (R. 683-685, 835-837; Ex. SD-2). The Parent requested a change in the Student’s XXXX. After discussion, the Sub-CSE agreed to the change. The Parents tentatively agreed with the Sub-CSE’s recommendations, but subsequently notified XXXX that the Sub-CSE’s recommendations were XXXX and they had questions about the program. They requested another CSE meeting to further discuss educational planning for the Student for the 2009/10 school year. The Sub-CSE met with the Parents on May 6, 2010. Again, the Parents did not provide the Sub-CSE with the pertinent information from XXXX’ report regarding the Student’s XXXX and XXXX. They also hadn’t advised the Sub-CSE that the Student interviewed with XXXX and that XXXX was accepted into their program on May 1, 2010 (R. 239-244; Exs. SD-2, P-BB).

The Sub-CSE made the following recommendations for the Student for the 2009/10 school year. They continued to XXXX (Ex. SD-1).

The Sub-CSE also recommended XXXX (Ex. SD-1).

The Sub-CSE had the same current triennial testing that it considered in making its recommendations for the 2008/09 school year. In addition, the IEP contains updated information from XXXX that indicates XXXX (Ex. SD-1).

The Sub-CSE minutes reflect that the Parents agreed to XXXX (Exs. SD-1, SD55, SD-56, SD-73, SD-74, P-Q).

The Sub-CSE developed a number of annual goals at its meeting on March 24, 2009, that continued to be recommended at the meeting held on May 6, 2009. The Student continued to have difficulties in the area of XXXX as of the end of the 2008/09 school year, and XXXX goals were modified for the following year. The Sub-CSE recommended 3 annual goals in XXXX (Exs. SD-1, SD-4).

In the area of XXXX, the Sub-CSE developed 4 annual goals, including XXXX (Exs. SD-1, SD-4).

In the area of XXXX, the Sub-CSE drafted 4 annual goals, including XXXX (Exs. SD-1, SD-4).

In the area of XXXX, the Sub-CSE developed 6 annual goals, including that XXXX (Exs. SD-1, SD-4).

The Sub-CSE also developed 4 annual XXXX goals, to be carried out by XXXX, including XXXX (Exs. SD-1, SD-4).

The evidence shows that the XXXX is XXXX (R. 1856-1863, 1869-1873; Ex. SD79).

There is also XXXX (R. 1848-1863, 1869-1870, 2019-2027, 2045-2047, 2552-2553, 2558-2560, 2705-2714).

In addition to XXXX (R. 1830-1832, 1845-1847, 1848-1856).

In the XXXX, the Student XXXX (R. 1298, 1804-1814, 1816-1823, 1873-1879, 2570-2572, 2580-2581, 2593-2598, 2715-2718, 2727-2728, 3095).

The evidence shows that XXXX (R. 2090-2101, 2665-2672, 2683-2684, 2699-2704, 2723-2724; Exs. SD-1, SD-76).

All agree, including the Parents, that this Student requires XXXX (R. 226-228, 1048-1050, 1222-1223, 1296-1316, 1326-1327, 1338-1340, 1332-1334, 2101-2102, 3552, 3556-3557; Exs. SD-1, SD-25A, D-78, P-X).

A review of XXXX’ recommendations for addressing XXXX (R. 1765-1774, 1777-1789, 1791-1794, 1796-1802, 1804-1814, 1816-1827, 1873-1879. 2536-2537, 2560-2562, 2570-2572, 2580-2581, 2593-2598, 2715-2719, 2724-2728; Exs. SD-1, SD-25A, P-X).

Although the Parents assert that the Sub-CSE’s placement recommendations XXXX, I disagree. A review of the IEP developed at that time recommended XXXX (R. 165-166, 303, 1221, 3544-3549; Ex. SD-17).

The evidence shows that the IEP developed by the Sub-CSE on May 6, 2009, for the 2009/10 school year, was reasonably calculated to enable the Student to receive educational benefits. I find that the IEP developed by the Sub-CSE offered the Student personalized instruction with sufficient support services to permit XXXX to benefit educationally from instruction. The evidence shows that the Parents participated in the development of the IEP. I also find that the Sub-CSE’s recommended placement was XXXX. In response to the Parents’ concerns regarding XXXX, XXXX stated at the meeting that the Sub-CSE would try to arrange it so that XXXX (Ex. SD-1).

I further find that the IEP developed on May 6, 2009 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. I also find that the IEP was capable of proper implementation in the XXXX.

In sum, I find that the District has met its burden of proving the appropriateness of its recommended XXXX 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); XXXX 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 a declaratory finding that the District’s IEPs for the 2008/09 and 2009/10 school years failed to provide the Student with a program of special education and related services that appropriately addressed XXXX is hereby denied, and it is further

ORDERED, that the Parents’ application for a declaratory finding that the District’s IEP for the 2008/09 school year violated the Student’s right to a free and appropriate public education is hereby denied; and it is further

ORDERED, that the Parents’ application for a declaratory finding that the District’s IEP for the 2009/10 school year violated the Student’s right to a free and appropriate public education is hereby denied; and it is further

ORDERED, that the Parents’ application for tuition reimbursement for the Student’s unilateral placement in the XXXX for the 2009/10 school year is hereby denied and it is further

ORDERED, that the Parents’ remaining applications for relief as contained in their Due Process Complaint Notice are 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: June 17, 2011

New City, New York

WENDY K. BRANDENBURG, ESQ.

Impartial Hearing Officer

Footnotes

[25] page 7 of 18) and stated that she “could” disagree with the information contained in Parent Exhibit X, that she spoke with XXXX about a couple of questions they had, but they did not focus on it because it was not relevant to the issue they were presenting to the CSE with respect to XXXX. She confirmed that the Parents did not ask XXXX to change any of the information that they disputed, and she had no explanation as to why information relating to the Student’s XXXX was missing from the report that she basketball game (R. 2948-2966; Exs. P-Y, P-Z).