New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: August 12, 2012

October 13, 2011

November 30, 2011

December 5, 2011

January 13, 2012

January 17, 2012

January 31, 2012

February 9, 2012

Actual Record Closed Date: April 24, 2012

Hearing Officer: Elise B. Kestenbaum, Esq.

Corrected

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 12, 2011

Esq. Attorney for Parent — Student

Esq. Attorney for Department of Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 13, 2011

Esq, Attorney for Parents — Student

Parents

Esq. Attorney for Department of Education — DOE

Teacher — DOE

Sign Language Interpreter — DOE

Sign Language Interpreter — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 30, 2011

Esq. Attorney for Parents — Student

Parents

Esq. Attorney for Department of Education — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 5, 2011

Esq. Attorney for Parents — Student

Parents

Esq. Attorney for the — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2012

Esq. Attorney for Parents — Student

Parents

Psychologist — Student

Esq. Attorney for Department of Education — District

Site Coordinator (via telephone) — District

Teacher (via telephone) — District

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 17, 2012

Esq, Attorney for Parents — Student

Parents

Teacher (via telephone) — Student

to Language Therapist (via telephone) — Student

Occupational Therapist (via telephone) — Student

Writing Teacher (via telephone) — Student

Summer Teacher (via telephone) — Student

Finance Director (via telephone) — Student

Christopher Barnett, Esq. Attorney for Department of Education — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 31, 2012

Esq. Attorney for Parents — Student

Parents

MD Physician (via telephone) — Student

SEIT (via telephone) — Student

Esq. Attorney for Department of Education — District

NAMES AND TITLES OF PERSONS WHO APPERARED FEBRUARY 9, 2012

Esq. Attorney for Parents — Student

Parents

Occupational Therapist (via telephone) — Student

Esq. Attorney for Department of Education — District

INTRODUCTION: — District

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by through their attorney, , Esq. by filing a Due Process Complaint dated June 30, 2011 and an Amended Due Process Complaint dated July 28, 2011 with the District. The District was represented by , Esq., an attorney for the Department of Education.

The Parents are alleging that their daughter, , was denied a free and appropriate public education (“FAPE”) for the 2011-12 school year and are seeking tuition for her unilateral placement at the (“ ”) for said year. D-1; D-E.

There were eight days of hearings in this matter. Hearings were conducted on August 12, October 13, November 30 and December 9, 2011, January 13, January 17, January 31 and February 9, 2012. Extensions were granted in this case making the final compliance date April 25, 2012. Briefs were prepared by the parties and were due on March 16, 2012. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND

This case involved a seven year old student. During the 2011-12 school year, attended the (“ ”) where the Student was unilaterally placed by the Parents.

With respect to the 2011-12 school year, an Individualized Education Program (“IEP”) was developed on March 2, 2011. D-1. Pursuant to the March 2nd IEP, the following recommendations were made:

1. Special class in a specialized school, staffing ratio.

2. Therapy, 1 times per week, 30 minutes each time; 5:1.

3. , 3 times per week, 30 minutes each time; 1:1.

4. , 2 times per week for 30 minutes each time, 1:1.

5. , 2 times per week for 30 minutes each time; 1:1.

The District issued a Notice of Recommendation dated June 15, 2011. D-3. It stated that the offered school shall be class Y 76 at P226 at 208. The Parents sent the District a letter on June 20, 2011 indicating that they were advised that the Y-76 class did not yet exist and would not exist until the start of the 2011-12 school year in July. P-E. They said they would visit the program at that time. They stated that in the interim, they would continue ’s placement at and will seek reimbursement for the placement. P-G. On July 1st the Parents called the school and were advised that P 226 at 208 would have four classes and that the summer program would begin on July 6, 2012. On July 6th, the Parent called the school and was told that there was no class Y-76 but that two of the four classes had space for another child. The Parents and CM’s SEIT visited P226 at 208 on July 11, 2012. P-E. The Parents then sent a letter to the District on July 12, 2011 rejecting the IEP placement and advising the District that they would keep CM at SLCD for the 2011-12 school year and continue her at home SEIT/SETTS/ABA (“SEIT”) and Occupational Therapy (“OT”) services and would seek funding and/or reimbursement for the tuition for SLCD and the at home services. P-H.

The Parents entered into a Summer 2011 Enrollment Contract for on July 27, 2011. P-R. They entered into an Enrollment Contract for the 2011-12 school year on September 6, 2011. P-T.

The Parents filed a Due Process Complaint on Jun e 30, 2011 (P-A) and then an amended Due Process Complaint on June 28, 2011. P-E. I was appointed as an Impartial Hearing Officer on July 30, 2011.

POSITION OF THE PARTIES

Parents’ Case

The Parents called eleven witnesses, , and placed thirty (30) documents in evidence. P-A – P-DD.

The Parents’ first witness was . She is a school psychologist that is employed at and she is a certified NYS school psychologist. Tr. 391. She has worked for for four years. Tr. 391. Her responsibilities include the following: providing counseling services, consulting in the classroom teachers, writing behavior plans, classroom management plans, and providing progress monitoring on behavior plans. Tr. 391. She testified that she works closely with teachers and parents to help with the educational needs of every student. Tr. 391. Ms. works in the elementary school in and the middle school in . Tr. 391.

Ms. testified that is a NY State approved special education school that provides a language based program where language is incorporated into every lesson throughout the day. Tr. 392. is approved for , testified, however, that based on her caseload and experience they presently have students with speech impairment, autism and OHI. Tr. 393. The age range at the elementary school is from preschool through grade six and at the middle school it is from grade grade. Tr. 393. They also have a high school in which is grades nine through twelve. Tr. 393. Ms. testified that she serves about 70 students in the elementary school and 35 that she sees for counseling in the middle school. She stated that there are approximately 120 in educational staff at . Tr. 394. Ms. testified that all of the classrooms at the elementary school have a 12:2:2 staffing ratio. Tr. 393.

Ms. testified that she is familiar with since she was assigned to her class as a classroom psychologist for classroom management for the 2010-11 school year and 2011-12 school year. Tr. 394-395. She does not see on a basis or work directly with her. She just works were her in consultation with her teachers. Tr. 394, Tr. 400.

Ms. also participated in a CSE review meeting for on March 2, 2011. Tr. 395; D-1. In preparation for CSE meetings, provides reports that are written by classroom teachers and any service providers that work with the student. They also provide a list of any testing accommodations and any recommendations for services. Tr.

397. Ms. also testified that they provide the statement for the least restrictive environment. Tr. 397. They also provide recommendations for both class size and services and goals and suggested goals. Tr. 397. In fact, goals are drafted by the teachers and service providers. Tr. 397. Ms. testified that goals are based on the individual student’s needs not necessarily based on placement. Tr. 397. She stated that “they’re really based on performance and what you, you know, they’re seeing the student accomplish and you know, what they feel like they will accomplish for the next school year. Tr. 398.

Ms. testified that at the March 2 CSE meeting, a recommendation was made for CM. She did not recall if the staff agreed with the recommendation. Tr. 398. She testified that if asked, she would say that “As a team . . . we were recommending a 12:2:2 classroom setting based on [ ’s] needs and her performance at the time”. Tr. 398. Ms. Lee testified that she thought the program was appropriate for since she has made “nice progress in the setting and that it allowed her a lot of opportunities for social interaction. “ Tr. 399.

Ms. Lee testified that “ that she can have interactions with . . . as long as there are students . . . that she can . . . . . that are at level similar to or even maybe a little bit higher than her . . . I think that would be good for her . . . but she’s not at a level where she needs or . . . a . . .”. Tr. 404. She also testified that benefits from having girls in the room since she’s a “ ” but “[she] can’t say it would be a detriment” to place in a class that was all boys. Tr. 404.

On cross examination, Ms. testified that there are student’s in ’s class that exhibit like , . Tr. 406-407. She stated that this occurs on a daily basis Ms. testified on redirect that all of the students in . Tr. 410. She stated that they in that they are all able to carry on a conversation with facilitation. Tr. 410. Ms. testified that falls in the . Tr. 411-412.

The second witness . She is a special education teacher at and she is certified in birth through twenty in special education and in grades one through six in regular education. Tr. 438-439. Ms. testified that she has a Master’s Degree in special education and has been a teacher for nine years. Tr. 439.

Ms. is familiar with because she is a student in her class for the 2011-12 school year. Tr. 439. She has been a teacher in for nine years. Tr. 439. She testified that there are twelve students in her class, four girls, eight boys. She also stated that there are four adults in the room including herself, Mrs. , her co-teacher, and two teacher assistants. Tr. 440. The age range of the students in the class is seven to eight and all students are classified, two as and the remainder as . Tr. 441. Ms. Cusack testified that she teaches certain subjects and her co-teacher teachers others. Tr. 442. She specifically teaches social studies, ELA and both reading groups. Tr. 442. Her coteacher Ms. teaches math, science and they switch off for guided reading. Tr. 446. There is Recipe for Reading which is a decoding program and which focuses on sight words and comprehension. Tr. 442. Ms. testified that she teaches for both groups. Tr. 443. There are six students in each group and they are broken down into for reading. Tr. 443. While the students are broken up into groups, Ms. stated “The teaching assistants are with the children to help aid them with writing or if they need prompting back to an activity”. Tr. 443. In addition, if they need help with refocusing or need one to one help, they get pulled aside. Tr. 444. Ms. testified that is on a , though not the . Tr. 444. She also testified that there is a guided reading period where they read books on a second grade level. Tr. 451.

Ms. testified that math is taught in whole group instruction and that is able to stay in the whole group and doesn’t need to be pulled out for extra help. Tr. 445. In Math, they are using the NYS Math program and Math Triumphs. Tr. 448. Ms. testified that in Math “ falls . . . with concrete math meaning addition and subtraction she falls at the first grade level. With applying concepts, she’s probably middle of kindergarten”. Tr. 449. Therefore, Ms. testified that she falls in the middle of her class in math since they have students that are in the middle of kindergarten to students on the second grade level. Tr. 449. Ms. testified that there is also a writing period and that leaves the room and goes to another teacher for writing. Tr. 451; Tr. 453.

There are specials including Adaptive Physical Education (APES) four times a week, Technology two times a week, and art and music two times per week. Tr. 446. Music and art are broken down so six children go to art and six children go to music with one teacher and one assistant in each. Tr. 446. In gym, all 12 students go together. Tr.

449. Alternating with gym is socialization three times per week. Tr. 450. It is run by a Therapist and they work on greetings, turn taking, they use role plays, and they work on praising the other children. Tr. 450. Every period is a half hour. Tr. 447.

Ms. testified that they use a lot of visuals, prompting, hands-on, and they use a lot of repetition throughout the day to generalize the information. Tr. 456. In addition, Ms. testified that they use a behavior modification plan in the classroom. Tr. 455. She stated that “it is every half hour the children are rewarded with a picture if they . . . participate in a lesson and basically we have trade-in time in the morning and afternoon so if you earn four pictures . . . then they get ten minutes of free time, and it’s the same in the afternoon. If they do not earn, then we use the handwriting books and they’re actually doing work. . . “. Tr. 455. Ms. testified that responds well to the Ms. also testified that provides with the related services of and She stated that there are times she misses academic periods for the related services. Tr. 456. She stated that there are set times for related services each week. Tr. 459. She stated that “. . . we’re in constant communication with the therapist . . .”. Tr. 456. She said that there is open communication so that we are able to work on the goals that the therapists are working on. Tr. 457. They have recess one time per week with their classes.

Ms. testified that in and Recipe for Reading they give weekly spelling tests to measure progress and is doing well. Tr. 458. In math they give informal testing and measure progress through observation. Tr. 458. They also give a yearly assessment of the . Tr. 459. Ms. testified that gives reports regarding student progress. Tr. 459. She stated that “After the is given . . . we meet as a team to discuss what services we think are appropriate, then every therapist she has writes a report. There’s also a classroom report that gets sent to the District . . .” Tr. 459.

In terms of ’s progress this year Ms. testified that raises her hand to participate and she can independently do work for approximately five minutes at a time. Tr. 459-460. In reading, she has a strong sight word vocabulary and Ms. stated that they are working on comprehension. Tr. 460. She indicated that she has made progress in that “with the use of visuals and some dexoprompts, is able to answer questions and make predictions. Tr. 460. With math, “She’s doing really well with our subtraction and raising her hand.” Tr. 461. She also responds well to the program. Tr. 461.

When asked whether Ms. believes is an appropriate placement for she stated “We meet all of her needs. I mean we are really the least restrictive environment. She loves being around the other girls in the classroom. She’s social. She comes in and she greets. And she’s not regressing, so I…I believe is an appropriate placement.” Tr. 461.

Ms. indicated that she was aware that received a home program of SEIT services and because she communicates with the Ms. , the SEIT provider through the communication notebook. Tr. 463. Ms. stated that she doesn’t believe that ’s home services have impaired her. When asked if they helped her, she stated “I really only know with her help at home. I can’t recommend it, but of course it’s beneficial for her.” Tr. 464.

Ms. stated that in her professional opinion, the DOE program would be too restrictive for . She stated that “ . . . she needs role models that have pragmatic language and everything, and it does not seem like they really have academic, emotional and social needs that would really benefit [ ] . . . She needs role models that can speak and some of the children are on s and I don’t think that’s really appropriate.”Tr. 467. Ms. stated that in her classroom all of the children are . Tr. 466. She said sometimes or l that she sees in the classroom. Tr. 466. Ms. said that in the afternoon, but a quick prompt . Tr. 467. She stated that and , but a .

On cross examination, Ms. stated that receives the following related services: OT, two times per week for a half hour each time, ; PT, two times per week for a half hour each time, and , three times per week, , and one time per week, the Therapist pushes in to her socialization group. Tr. 474. Ms. testified that missed academic classes when her related services are scheduled. Tr. 477-478.

She also testified that she has never taught a program offered by the DOE nor has she visited one. Tr. 480.

The next witness was and she is the She has a Bachelor’s in Speech/Language and Hearing Sciences, a Masters in Speech/Language Pathology and is NYS certified as a teacher of students with Speech and Language disabilities. Tr. 500. This is her fifth year at . Tr. 500.

Ms is . Tr. 501. She began working with her in September of 2011. Tr. 501. She teaches her on a basis three times per week and in a push-in group one time per week. Tr. 502.

In the socialization group there are two other children. Tr. 502. Ms. stated that when she pulls her out for her individualized sessions, she is not sure what she is missing, however, she stated that the related service providers are not allowed to schedule a student so that such student misses the same period more than once a week . Tr. 503. Ms. stated that has issues in as well as . Tr. 505. In order to help CM, Ms. Powers testified that “she’s given visual and verbal cues as needed, lots of repetition. We do a lot of scripting and modeling during our socialization lessons, some role playing.” Tr. 505. She collaborates and coordinates with ’s classroom teacher on a daily basis. Tr. 506.

Ms. indicated that she is working on the goals that are listed on page 1-8 and 19 of D-1 of the March 2, 2011 IEP for . She stated that she measures progress in the following manner: “We keep data for each session . . . if . . . we are asking her a question and she answers it correctly or incorrectly, we tally it, and we write down which cues were needed for each trial, and then we have to write logs on each session. Tr. 513. Ms. Powers stated that is making progress on her speech and language goals. Tr. 513. She testified that she is making progress in recalling facts from stories so that she can answer questions about them. She has also demonstrated progress with respect to her categorization skills and being able to group three items into different categories and provide the correct category labeled verbally. Tr. 514.Ms. stated that in the socialization group she is in the middle and she benefits from higher functioning students since they act as a good role model for her. Tr. 515.

The next witness was She is an and has been there for eight years. Tr. 528. She has been ’s for the past two years. Tr. 529. She sees her two times a week for 30 minutes in the room and in the sensory room on a basis. Tr. 530. Ms. testified that the room has five people in it but they are all in individual corners. Tr. 531. She also stated that in the sensory room, it is one to one. Tr. 531. Ms. testified that “[ ’s} issues are her fine motor which means her handwriting and copying skills and also working in ... Also strengthening her muscle strength in her upper body so that she’s able to sit in an upright position and be able to follow board work and copy sitting in non-circle time.” Tr. 531-532. She also has sensory issues and Ms. is working on increasing her muscle strength and increasing her awareness of her perception of her body in space where she is. Tr. 532.

The goals that Ms. is working on, she stated were: “writing four lines of manuscript handwriting with adequate legibility, independently dress[ing]and undress[ing] herself including fasteners and shoe tying and zippering, being able to maintain a correct posture during fine motor activities, working on visual motor to be able to find different objects on a page and being able to complete mazes and dot to dots and to find things out of context and being able to . . . [do] a word search.” Tr. 537-538. With respect to writing manuscript, Ms. testified that in September was writing one sentence as , had , and was . Tr. 539. Now she is able to and Ms. is measuring for size, letter formation and spacing of her letters and words. Tr. 540. With respect to any progress has made, Ms. said that it is the product of both her sessions with and the OT work done after school, because she cannot measure it separately. Tr. 545.

Ms. testified that she works on s . She stated that when she is working on handwriting she uses a slant board since it will give her more midline carryover and she is able to focus on the material instead of looking up and down and losing her place. Tr.

546. Ms. speaks with ’s teacher after each session, if she can, but at least once a week. Tr. 548.

The next witness was . Ms. is a special education teacher for She has a Bachelor’s Degree in Education grades one through six and students with disabilities and a Master’s Degree in literacy grades birth through six. Tr. 560. She also testified that she is certified by NYS for Special Education. Tr. 560.

Ms. is familiar with because is in her writing group and comes to her class three times a week for 30 minutes each time. Tr. 560-561. There are eleven people in her group and they have curriculum maps that they follow that delineate the different topics that they need to address throughout the year. Tr. 561. There is a second teacher and two teaching assistants in the group. Tr. 562. She starts out discussing with the students what they are going to work on and then they break into two groups with 5-6 kids and a teacher and teaching assistant. Tr. 563. The students in the class are functioning between kindergarten to a low first grade level. Tr. 565. Ms. testified that is functioning at a low to level. Tr. 565. The teacher stated that “[ ] cannot write a sentence independently. She needs a lot of . A lot of times I will write the sentence out for her after she and even copying a sentence is a big challenge for her. She’ll leave words out. She’ll rearrange the order. We’re working a lot on drawing a picture, then labeling, then writing a sentence.” Tr. 566. She stated that has a very difficult time finding words to match what she’s drawing a picture of so the teacher breaks it down for her. Tr. 566. With respect to copying a sentence, Ms. says has a hard time with it so she either has a TA sit next to her or she’ll write the sentence on a small piece of paper and fold it so she can focus on one word at a time. Tr. 547.

Ms. says she measures progress through teacher observation. Tr. 548. She does not have goals for the 2011-12 school year for , these are addressed by her classroom teacher. Tr. 548. Ms. testified that she has seen progress with ’s punctuation. Tr. 570. Ms. also stated that is appropriately placed in her writing class at Tr. 570. Ms. testified that benefits from being with ten other students because she has the benefit of both peer modeling and also being a model for the other students. Tr. 572.

On cross examination, Ms. stated that she was not aware who her teacher was in July nor what goals she was working on between July and September. Tr. 570. She also testified that there are two other students at ’s functional level in writing. Tr. 575. Ms. indicated that “within certain areas [ ] is the [ ], within certain areas she is not.” Tr. 575.

The next witness was . He is a special education teacher for . Tr. 580. He has a dual certification in special education and elementary education. Tr. 580. He testified that before coming to he worked as a leave replacement in a class for the DOE for four to five months and he worked as a substitute teacher with the DOE as well for both special and general education. Tr. 581-582.

Mr. testified that he was familiar with because she was his student from September 2010 through August 2011. Tr. 583. Thus he worked with her during July and August of 2011. Tr. 583. Mr. stated that there were nine students in his class, seven boys and two girls and they ranged from six to eight years of age and they were in first grade. Tr. 583-587. There was one student with and the rest were language . Tr.

584. Mr. testified that there were two special education teachers and two teacher assistants in his class. Tr. 584.

Mr. testified that with the four adults in the room, the work got divided between the teachers and the assistants. He stated that the teachers would handle a lot of the instructing, introductory lessons and the teaching assistants would help with the review. Tr. 586. He also stated that “. . . they would try to do “a lot of nonverbal prompting so it would be less distracting for students particularly like .” Tr. 586. The teacher said he would break into small groups for reading and there would be three in each group, all with similar strengths. Tr. 588. was grouped with “individuals that were stronger in the decoding-encoding area and had more challenges in the comprehension area of the story recall area, the passage comprehension and answering questions . . .” Tr. 589. In phonics, in the summer was in the early to middle first grade functioning level. Tr.

589. He then stated that was on the kindergarten level with respect to comprehension. Tr. 590. At the beginning of the year, Mr testified that was “doing a lot of solitary play . . . and by the end of the year she was sometimes doing cooperative play which was a really big – it really took a lot of progress with in the social aspect . . .” Tr. 591.

Mr. also testified that all of the students in the class were . Tr. 591. He also stated that there were peer role models and that benefitted from exposure to students with higher than she had. Tr. 592. The range of functionality of math in his class was early grade. Tr. 594. Mr. Ehrlinger stated that falls in the low status when it came to reasoning and applied problems and when it came to , like adding, subtracting, etc., once she got it, she was able to run with it. Tr. 594.

He testified that she had trouble with bar graphs because there were so many different directions. Tr. 595. He also stated that “when measuring with a ruler, she tended to rush a little and knowing she . . . needed prompting to slow down and take her time and without . . . enough support in the classroom, that is something that she requires.” Tr. 595.

Mr. testified that with respect to writing it consisted of 15 to 20 minutes each day and he stated that “she started the year with poor intelligibility of numbers and letters and at the end of the year she progressed really well . . .” Tr. 596. He testified that as far as writing sentences, her organizational skills were a challenge for her so they would try to break down her thoughts, use some visuals, start a sentence and ask her how to finish it, etc. Tr. 597-598.

The methodology he used for math was a Math Connects program (Tr. 600) and the reading program was Reading Milestones. Tr. 601. The decoding program they used was a Recipe for Reading. Tr. 602. Mr. testified that the curriculum that he used in his classroom over the summer was the same during the school year.

Mr. also stated that there was a social skills component to his curriculum. They taught everything from . Tr. 603. Mr. benefitted from the in that she progressed with her . Tr. 605. They also had a in the class called “ .” Every half hour each student’s flag would have the ability to move up the mountain depending on whether the particular student performed certain target behaviors. Tr. 605. for included things like Tr. 606.

Specials were provided in the summer and throughout the year and included Adaptive Physical Education, music and art. Tr. 608. No trips were taken last year but Mr. ’s class has taken trips in the past. Tr. 608. He also stated that his students had lunch in the cafeteria and there were between fifty to fifty-five students at lunch with a minimum of ten adults. Tr. 611. They would also have a structured recess two or three times a week. Tr. 612-613.

Mr. testified that there were goals that he was working on with during the summer of 2011. They included organizational skills, attending skills and focus. He stated that struggled with throughout the year. Tr. 614. The teacher stated that made progress during the summer of 2011 slowing down and taking her time. Tr. 616. Socially she made progress since she started the year not interacting with others and by the end of the year she was more verbal openly with her friends. Tr. 618.

Mr. stated that he was aware of the program that was receiving after school and did not find that it impaired or interfered with ’s ability to learn in the classroom. Tr.

619. He collaborated with the SEIT and he stated that “it was just an additional part of the support team which I believe benefited [ ].” Tr. 619.

Mr. r did not think that should go from a setting to a . Tr. 620. He stated that “the only reason why you’d want to change I believe would be if she wasn’t performing up to par and I believe she is.” Tr. 620. With respect to whether she needed ABA services, the SEIT services to make progress at , Mr. said “that’s a very hard question because we’re – our job is to address all of our needs here, but at the same time did they benefit her? Yes they did.” Tr. 622.

On cross examination, Mr. testified that he never worked in a classroom nor did he ever observe one. He also said that did not require after school SEIT services, however he believed that they benefitted her and helped her. Tr. 633-634. He also stated that he thought the services helped and she would not make the same progress without them. Tr. 634. He also testified that could learn at without the afterschool SEIT hours. Tr. 642.

With respect to having another girl in the classroom, Mr. stated that having access to a girl benefitted her socially but it was not required for her to benefit academically. Tr. 638.

The next witness was . She is the finance director for She oversees the accounting department, billing and payments. She also does the financial statements and makes the contracts with the parents. Tr. 645. Ms testified that she was familiar with the contract signed by s Parents for the summer of 2011 and the 2011-12 school year. PR; P-T. She testified that the cost for attendance for the summer was approximately $7,600. Tr. 646. She stated that it was an estimate since they don’t get their tuition rates issued by State Ed until sometime in September or October, so they use the prior year’s figure and then adjust it when they get their final rates. Tr. 646. The rate that was ultimately approved for the summer was $7,063. Tr. 646. Ms. stated that she also had the Parents sign a contract for the 2011-12 school year and they paid a deposit of $4,600. She further indicated that if an interim order of pendency is issued, ’s policy is to pay back the amount to the parents and that was what was done in this case. Tr. 647. Since there is a pending order, Ms. testified that NYC is responsible for the tuition for the 2011-12 school year to date. She further indicated that if the Parents are not successful in their suit for funding for the 2011-12 school year, the Parents would be responsible for funding if enrollment continues, unless the Parents disenroll the student. Tr. 649.

The next witness was Dr. . She has been ’s doctor since she was nine months old. Tr. 682. She is a . Tr. 643. She testified that she sees children with . Her role is to assess where they need support and to make recommendations for type of therapy and school placements. Tr. 663. She sees approximately 250 to 300 patients a year. Tr. 664.

Dr. testified that she sees every months and has seen her about thirteen times since birth. Tr. 665. She does an evaluation every time and uses the same assessment tools. Tr. 665.

With respect to the August 9, 2011 Evaluation Report (P-V) ’s mother and her SEIT teacher, Ms. were present at the beginning and s father and brother came at the end. Tr. 667-668. She used a subtest from a test called and the and the to assess . She also reviewed the third marking period report from Tr. 669. Dr. testified that she had seen her in March and had put her on medication for which she had been taking for approximately a month before the evaluation. Tr. 671. Dr. indicated that was “much , more cooperative and her was better than when I had seen her in the past.” Tr. 669. She also was reading words, her writing had improved and she was able to complete one part of the for the first time which was sentence comprehension. Tr. 670. She also did informal testing and determined that she had improved her . She had more but still and had difficulty answering , and they often had to be rephrased. Tr. 670.

Dr. made a diagnosis for . She testified that “ , which is basically motor planning. This has affected her as well as her ability to do , plus she has really including her and .” Tr. 674.

Dr. testified that is in the . Tr. 675. She made the diagnosis at two and a half or three based on her . She had poor , and she . Tr. 676.

also suffers from and has to think about everything before she does it. Tr. 675. With respect to , they did specific language testing at in Spring 2011 and she was at the across the board. With respect to , the teacher reports indicated that she could not sit still, with the teachers to complete tasks. Tr. 676. She also has a and has trouble . Tr. 678. She also has . Tr. 677.

Dr felt that she should continue at since she was making progress and clearly benefitting. Tr. 679. She also testified that she recommended the 12 month program since she had in the past especially during a long vacation break. Tr. 678. She also stated that she learns best with a lot . Tr. 678.

Dr. also recommended , and . She also felt that she should continue her outside therapy at the sensory gym since this addresses her sensory needs. Tr. 679. She also recommended her after school support eight hours a week to reinforce what she was learning in school and because she needs reinforcement and repetition to learn. Tr. 679-680.

When asked to explain Dr. ’s report dated March 30, 2011 (P-H), where she indicated that the NYC Dept of Education’s placement recommendation in a class in a District school is not an appropriate placement, she stated that this would be a step back for since she is presently in a class with ten students. She also stated that in her experience, students who are in such restrictive settings have and does not display . Tr. 682. In addition, since she has difficulty in peer interactions due to her language, it is important for her to have peers that would provide positive role models for her. Tr. 682. She further testified that smaller is not necessarily better since she needs the range of students for socialization. Tr. 681. She also testified that having no girls in her class is not ideal since boys are not great role models for girls. Tr. 686.

On cross examination, Dr. testified that she has never been to she said that she saw two DOE classes in the past three years. Tr. 680. She also stated that she is recommending since is making progress there and because of their focus on language. Tr. 692. She is basing this on looking at the website and her conversations with parents that sent their students to . Tr. 693. Dr. also stated that she felt that would not make as much progress without afterschool SEIT services because she needs to be reinforced in a one to one setting in order to succeed. TR. 694.

The next witness was . She is a special education teacher who works for . She also has her own company called Saturday’s . Tr. 701. She stated that she has worked with approximately 300 kids using ABA. Tr. 704. She primarily focuses on CPSE kids, three to five. Tr. 704. Her certification is from birth through grade two. Tr. 704. She is not BCBA or BCABA certified but does not have to be to provide ABA therapy. Tr. 704.

Ms. stated that she has been one of ’s SEITs and supervisor for five years. Tr.

706. She sees her six hours a week and another SEIT, sees her two hours a week. Tr.

706. Ms. testified that she brought Ms. in for generalization purposes. Tr. 708. Under the pendency order, is being paid $102 an hour for the SEIT services. Tr. 708. The amount that the District would pay for school aged children is higher but for it is still being billed at the SEIT rate. Tr. 709. She testified that there is no difference between SETTS and SEIT services. Tr. 710.

According to Ms. , demonstrated delays in all of her domains – . Her gross and fine motor skills and her , however plays a role in cognition and must be viewed together. Also her are . Tr. 714.

Ms. testified that in order to address these delays, she works with and bases her work around ’s homework, on whatever the school has indicated she is having difficulty with and needs practice in. Tr. 715. This involves everything from , . Tr. 715. We work on , and . Tr. 716. She continues to work on her , helping her to shape the letters and making them smaller. Tr. 716. She needs help with “ ” because “her testified that they work on coordinating her body through like jumping jacks, or throwing a ball. Tr. 717-718. Also Ms. stated that she need to review things does with her so they can be maintained or she loses them. Tr. 719.

Ms. also testified that throughout her sessions she works on and . Tr. 719. Her pronouns are often incorrect and she refers to herself in the third person. Tr. 719. Ms. corrects this through with pictures. They work back and forth on simple conversation and discussing specific topics. Tr. 719. Ms also works on self help skills like dressing and undressing herself. Tr. 722. With respect to the realm, Ms. supervises play dates. She also works on her at home and in public. Tr. 726.

Ms. stated that the method that she uses with is ABA. Tr. 728. Ms. described her work as follows: “We don’t only use discrete trials with [ ]. ABA can be used at all times and it’s the idea of the antecedent, behavior and consequence, and by changing antecedent and by changing consequence, you’re changing a child’s behavior.” Tr. 729. She stated that physical prompts are easier to fade than prompts. Tr. 730. She also uses data collection with IEP goals and works from the March 2, 2011 IEP. (D-1). She also works on goals that are not in IEP such as the concept of because when situations come up they have to be dealt ”. Tr. 738. With respect to ’s , she sometimes . Tr.

737. Ms. testified that even on a good day, in a two hour period you can see stem behaviors three to four times. Tr. 737. In describing what she means by” out of control”, Ms. stated that “if she does something that feels good for some , or , you know, somebody , that , she’s and if she continues to do that kind of stuff it will interfere with her world. She uses it as an escape. That will carry over into school as well. So you have to nip it in the bud for her right away.” Tr. 739.

Ms. testified that she keeps track of ’s progress by writing notes everyday of the specific goals she worked on and the progress on these goals. Tr. 745. She also does concrete progress reports quarterly. P-H. She testified that she has seen progress in the work she has started with her since July 2011. Tr. 746. She testified that her . 747. Overall, Ms. stated that “ makes progress but it’s usually and it has to be . . . maintained. Tr. 748.

Ms. testified that her primary mode of communication with is through the communication book and verbal communication once or twice a school year. Tr. 748-49. She states that at least every other week she is sharing comments or asking questions through the communication notebook. Tr. 749. She also communicates with CM’s afterschool , every other month.

Ms. testified that continues to need an extended day of services. Tr. 752. She stated that “It is my opinion that [ ] requires an and experiences to actually learn a skill, to acquire a skill and to make it hers. There’s just not enough time in the day for her . . . there’s so many subjects at this point. There’s so many skills she needs to learn beyond just her IEP, the curriculum and the common core standards, and all the other stuff she has to deal with.” Tr. 752. She also indicated that they need to use extra time to make sure she is not losing the things from before. Tr. 753. Ms. also indicated that she needs the eight hours at a minimum because she needs the repetition and she needs it daily. Also, the older she gets the more IEP skills she needs to target and the more academic skills. Tr. 754.

Ms. testified that she was at ’s March 2nd CSE meeting but ended up leaving when they were photocopying before it actually ended. Tr. 754. She could not recall if they reviewed Dr. Packard’s evaluation or Dr. ’s evaluation. Tr. 755. She stated that the people from were not on the phone during the entire meeting. Tr. 756. She stated that “Different people spoke and they were present for the majority of the meeting, but towards the end they got off and we finished up stuff.” Tr. 756. Ms. testified that during the meeting was classified as and no one from the team objected. Tr. 756. The SEIT stated that when the team recommended a program, there were concerns by the Parent, herself and she thinks , concerning the size and her not having enough peer models. Tr. 757. She testified that no one put forth the possibility. Tr. 757. She stated that when the team mentioned a special class in a community school, they discarded it indicating that they did not believe a community school would be appropriate for her. Tr.

758. With respect to a “ ”, Ms. stated that they said it was too restrictive but did not discuss options in programs. She also testified that they did not discuss continuing . She did , however, testify that stated that a program would be appropriate for and the CSE decided that they were going to recommend . Ms. testified that they did not discuss the specifics of the program at the CSE meeting (i.e. type of children in class, curriculum or type of instruction). Tr. 760. She testified that she did, however visit the program with the Parents. She testified that they met with the site coordinator and the assistant principal and after showing the placement letter to them were told that they would show them the rooms with openings in case were placed there. Tr. 762.

Ms. testified that they viewed two rooms with three boys in each room. Tr. 763. In the first classroom, they were told they could not speak with the teacher because she was busy and that she was only there for the summer. Tr. 763. She said that they were only there for a short time because Ms. testified that “they felt that the other class—if [ ] were to come, the other class would be better.” Tr. 763. In the other classroom, Ms. testified that the teacher was trying to have a lesson on a white board until one of the children ended up under the table in the back and she had to leave to help the child. Tr.

764. She did not think either of the classes was appropriate for since they were low functioning in terms of and they . She indicated that one of the interfering behaviors was making noises, which did on occasion. Tr. 764. Ms. felt that it was inappropriate to put her in a class with others that because she likes to imitate noises and could do it everywhere. Tr. 765. She also observed that the other students appeared to be very low functioning in and would not be appropriate role models for Tr. 766. Although exhibits , Ms. testified that if she observed others she would imitate them, however if she is in the right environment and she’s reinforced for not having , these . Tr. 767. Ms. indicated that the fact that the classroom was all boys was an issue since she gravitates towards girls, though she does play with boys as well. Tr. 768.

Ms. testified that in her professional opinion and her knowledge of over the past five years, she did not think that the District’s class would be appropriate for since there are no girls and it is a very small peer group. Tr. 772.She also stated that she is concerned about the language abilities of the other children and ’s access to other children besides her classmates. Even though she would be going on trips with another class, she was concerned with the unstructured nature of this setting and her opinion that she requires mostly one to one when she is in such a setting. Tr. 776.

Ms. testified that when the Parents brought a continuation of SEIT after school services and services outside of school., the CSE would not discuss it. Tr. 777. Ms. Alfano testified that was an appropriate program for . She stated that “I believe that they are providing an environment that meets her needs and that the progress she is making is meaningful for her. “ Tr. 777. She also stated that the appropriateness of does not mitigate her need for extended day programming because of her need for repetition and her need to maintain her skills. Tr, 778.

On cross examination, Ms. testified that provides services to less than half a dozen school aged children. Tr. 779. She also testified that she is certified for birth through and that did an so if she were typically developing she might have been in on what her parents decided. Tr. 780 She stated that she observed two times, the last time being during the 2010-11 school year. Tr. 782. Ms. stated that would not be able to without receiving the after school services that she provides. She also indicated that she is working on the goals on her IEP. Tr. 784-791. On cross, Ms. testified that if she did not have afterschool services she would not make the same amount of progress she is making now, which she says is already slow and steady.. She is also going to lose some of the old material she needs to maintain. Tr. 797. Ms. testified that started with 20 hours of extended day services in January of 2007 and then in July of 2007 it was brought down to eight and she has been receiving eight for the past four years. Tr. 798. She also used to receive three hours of speech but when she transitioned into , she didn’t need those hours. Tr. 798. She also says that shows regression when there is a long vacation or when a skill isn’t maintained. Tr. 799.

With respect to her observations of the classes, Ms. testified that she spent five minutes in the first room and ten to fifteen in the second. Tr. 801.

On redirect, Ms. says she basically spends an average of 20 minutes and that she is improving in her ability to handle homework independently. Tr. 803.

The next witness was . She is an and is self employed. Tr. 819. She has her Bachelor’s and Master’s of Science in and is licensed by NYS and also by NGTOJ, which is a national board that certifies . Tr. 821. She has practiced over twelve and a half years in a variety of settings and has been in private practice for seven years. Tr. 821-822.

Ms. testified that she is familiar with and has seen her since 2006, first in an early intervention program and then she saw her through CPSE and then when she transitioned into CSE, she began to see her privately. Tr. 822. She stated that she sees every Monday in the office from 4:30 to 5:15. Tr. 823. She uses a because there us extended equipment including a table where they work on and and climbing apparatuses so they can work on and motor planning. Tr. 823. She testified that this equipment helps her attention regulation and controls her arousal levels. Tr. 823.

Ms. indicated that has , she’s often , has some , , , and with writing and , etc. Tr. 824.

When arrives she is unregulated so Ms. testified that they use the equipment to get her calm and organized each time. They then work on anti-gravity positions, an activity with puzzles and then she will throw at targets and pull rope while she is on a swing. They then transition to some motor planning like climbing or hanging on the monkey bars and then the obstacle course. Then they work on the table top for fine motor skills including writing, sizing, shaping and letter formation. Then she will do some homework and Ms. will tie in some visual, perceptual activities and then she concludes. Tr. 827-828. She speaks to Ms. every other month by phone or e-mail and she speaks to the Parent after each session. Tr. 831. She said that last March or April she spoke with Ms. and Ms. stated that they verified that they were working on the same goals because they both have her IEP and use similar strategies. Tr. 830.

Ms. has had the opportunity to review ’s IEP dated March 2, 2011 for the 2011-

12 school year (D-1) and it was her professional opinion that the goals were appropriate and addressed ’s needs. She would like to see them add something to help regulate and maintain s level of alertness, but that’s all. Ms. agrees that the CSE was correct in recommending twice a week for 30 minutes. Tr. 833. She testified that in her professional opinion also needs after school. Tr. 834. She said that she has made amazing progress but that she has significant that impede her academic performance in the classroom and socially with her peers in the community and on the playground. Tr.

834. Ms. testified that a gym based after school program helps work on her attention and her arousal levels. Once she becomes more regulated, she will be able to achieve higher level skills. Ms. also works on her , and her . She also needs repetition to ensure progress and Ms. testified that her program allows for that. Tr. 836.

Ms. testified that she has made progress in her writing in that the sizing and shaping have come along. She also stated that “She’s also getting that ocular reflex, she is able to sustain and at times engage in activities. Now she’s really regulated and she’s able to . . . she can [now] have a conversation, she can be and tell you about events of her day.” Tr. 837. Ms. testified that if were receiving therapy in a room with a lot of visual stimulation it could be very distracting. Tr. 839.

Over the summer, Ms. testified that she charges $140 for her services and in September she raised it to $145 for s family. Tr. 840.

On cross examination, Ms. testified that she spoke to Ms. , ’s school , on February 8, 2012, the day before the hearing and prior to her in March or April of 2010. Tr. 843. She also indicated that she doesn’t think another 30 minutes of at SLCD would be necessary. Tr. 854. She testified that although she needs more time, she needs time to be reading, and being with her and she doesn’t think it is appropriate for her to be missing any more academics during the school day. Tr. 855.

Ms. stated that she keeps notes on what she did with but doesn’t keep data or does not send progress reports home to the parents but she speaks with the mom after each session. Tr. 857.

The last witness was . He is the Parent. The first time he noticed that was experiencing development delays was when she was 9 months old and that is when he took her to a neurologist. Tr. 864. He testified that he referred her for services at that time. Tr. 864. started at a school but after two months they moved her to . She started in a class which had some and some but the Parents then moved her to an all special needs class. Tr. 865. The father testified that when , that placement was with the CPSE and she was also receiving after school SEIT services and OT. Tr. 865-866. He stated that the state originally paid for these services. Tr. 866. He stated that the amount of after school SEIT services and has decreased. Tr. 866.

The Parent testified that he provided the CSE with documentation describing CM’s needs in preparation for the March 2, 2011 IEP meeting. Tr. 867. He stated that he provided the CSE with all of the reports he received from the school including Ms. Alfano’s report and a report. D-8. Tr. 867. The parties who were present at the CSE meeting that had knowledge of CM were Ms. and by phone, the representatives. Tr.

868. He stated that none of the District representatives knew CM. Tr. 868.

The Parent testified that an evaluator came to his house on February 9, 2011 but there was some was confusion and she left without evaluating CM. He testified that at the meeting he was told that no evaluation was needed. Tr. 870.

He testified that at the CSE meeting on March 2, 2011 there were three sign language interpreters. He stated that “In my personal impression, they had already decided that [ was not going to continue with and that she was not going to get after school services. It seemed that was already in their minds, that the decision was made.” Tr. 872. He said that the CSE refused to discuss the after school services saying that “it wasn’t what they were willing to discuss.” Tr. 872. The father testified that they spent a minute on the doctor report and did not discuss the findings. Tr. 873. He did not believe that the members of the CSE reviewed all the documentation that was provided. Tr. 873.

The Parent testified that the team classified with a disability and there was no discussion at the meeting that she should be classified as . Tr. 871. The Parent stated that the CSE’s recommendation was for a placement in a District school and the participants from and Ms. , the SEIT did not agree since they believed it was too restrictive. Tr. 874. The Parent stated that “it seemed like they had already decided it was going to be a .” Tr. 875. He stated that the team wasn’t willing to consider keeping s placement in a . Tr. 875.At the end of the CSE meeting, Mr. indicated that he would be happy to visit the placement recommendation. Tr. 876.

s father testified that he sent a letter to on June 16th advising her that they had received a Final Notice of Recommendation, but there was no specific school placement. Tr. 877. He did not receive a response to this letter. Tr. 877. He then testified that he sent a second letter on June 20th indicating that they received the placement and that when they called the school they were told that the classroom listed on the recommendation didn’t exist. Tr. 879. When he called, he was told, however, that the classroom would exist in July. The father then requested information including a class profile but did not receive a response. Tr. 879. He testified that he called in July and was told the class still did not exist but that there were two other classrooms with availability. Tr. 879. He then visited the school on July 11, 2011 with his wife and the SEIT. Tr. 880. The visit lasted an hour. They met with the assistant principal and the woman he had spoken to previously on the phone. Tr. 880.

The Parent testified that they saw two classrooms, each with three students. In the first classroom, He stated that “there was a kid at a computer who was just sitting there doing nothing. The other two kids seemed – one of them was eating a crayon. The teacher didn’t seem to be teaching. None of the kids were talking to each other or anyone.” Tr. 881. When they asked to speak to the teacher they were told that they couldn’t because it was the middle of class and this wasn’t going to be the teacher who was going to be there in September. Tr. 881.

The father testified that in the second classroom, the teacher was at the board with a frog puppet. He stated that “The kids didn’t seem to be paying attention. One kid was looking up and down and another kid – got up and lied on the ground, and they gave him a blanket, and the teacher went to him and tried to get him to get up.” Tr. 862.

The Parent thought that would have a difficult time with these behaviors because she is . Tr. 862. From the father’s observation it seemed that ’s functioning was much higher than the other children in the classroom. Tr. 883. He also expressed concern about the lack of girls in the classroom since he testified that she gravitates towards girls. Tr. 883. Mr. also stated that he asked whether the students in the classroom would interact with other students and was told “. . . I think there was this rare visit – other student, but for the most part, all of the – lunch, recess, was just the kids in the classroom.” Tr. 884.

After the school visit, the Parent wrote a letter to the District dated July 12th indicating that the program was inappropriate for . Tr. 885; P-H. In the letter he also included updated reports and stated that “In light of these recent reports, we hereby request that the CSE Hearing The Parent testified that does very well at and every year showed “more and more progress.” Tr. 885. He feels that it is important for her to be around peers she can model, and that the classroom at provides that. Tr. 885.

The father testified that the bus trip each way is approximately one hour. Tr. 886. He stated that when she arrives home she is alert, however sometimes a after sitting on the bus for an hour. Tr. 886’

The Parent also testified that he believes continues to require extended school services since she needs a to learn. He stated that “I think the more she gets in those early years, you know, we’re trying to catch her up, and she still has, even with all the progress, .” Tr. 887. The father stated that does not have services on weekends and during holidays breaks and he notices that “she seems to regress a bit . . . [and] she’s definitely better off when she’s having the after school services.” Tr. 888.

The Parents signed a contract with for the 2011-12 school year which obligates them to pay if they don’t get funding from the State, however they can withdraw her if they don’t get funding. Tr. 888-889. They were obligated to pay a deposit of $4,000, however this was refunded as a result of pendency. Tr. 888.

The Parent believes that the program at including her after school SEIT and OT services is an appropriate program for for the 2011-12 school year because she is showing continuous progress. Tr. 891. He did indicate that if the CSE had offered an appropriate placement he would have taken it. Tr. 892.

On cross examination, ’s father stated that before accepting a placement he wanted to meet with the teacher and paraprofessional and see a class profile. Tr. 895. He indicated that he did visit the classroom in July, however, it was after the start of the school year. Tr. 896. District Case

^[1]

The District called four witnesses, , , and and placed twelve (12) documents into evidence. D-1 – D-12.

The first witness that testified for the District was . She is a school psychologist and has been employed by the NYC Department of Education since 1997. Tr. 91-92. Her responsibilities include conducting evaluations, holding reviews, participating in impartial hearings, conducting ’s, developing ’s, conducting observations and professional development workshops. Tr. 92. Prior to becoming a school psychologist, she worked for the District as a general education teacher from September 1997 to September 1999. Tr. 92-93. She has a Master’s Degree in psychology, an advanced Graduate Degree in and an advanced Graduate Certificate in supervision and administration. Tr. 93.

Ms. is familiar with since she sat on her review on March 2, 2011 as the school psychologist. Tr. 92-94. She reviewed the following reports at the CSE meeting: Social History Report (D-5); Classroom Report (D-6); Report (D-11); and Language Report (D-9); Report (D-7); (D-8); and the Report (D-4).

Ms testified that there was no general education teacher at the meeting since they were not considering general education for . Tr. 97. Ms. stated that “ presents with developmental – overall developmental delays, so we thought that she would need a smaller class setting. In addition, the parent rejected the special class … or setting, so we knew that we were going to be considering, if not that program, a more restrictive program, and not consider her for general education.” Tr. 97-98. was classified with a speech impairment and Ms. Lucio does not recall anyone disagreeing with the classification at the meeting. Tr. 99.

In terms of recommendations, Ms. testified that there were several different recommendations but that the team ended up recommending a 12 month program in a District school. Tr. 99-100. She stated that it was based on the general history that the Parents provided, their comments during the meeting, the progress reports and verbal reports made by the teachers from and the SEIT and the clinical opinion of the team based on their knowledge of the District program. Tr. 103.

Ms. testified that was at for the 2010-11 school year. Tr. 101. She stated that for the 2010-11 school year, “I believe there was a recommendation for a special class in a community school but that was rejected being that she was enrolled at [SLCD].” Tr. 101.

Ms. stated that she agreed with the CSE’s recommendation based on the facts that her needs were in the area of , development. She said that had fine motor and gross motor delays and that based on all developmental delays, the team believed that she required an intense structural individualized program which would be available at a District school. Tr. 102. She testified that “District is a program … which services students who require a very structured and individual program. They present with different delays. ..The District has different ratios, depending on the needs of the student so the one the team decided was a program. We thought the would-might be too large for her, so that’s why we considered the and recommended the .” Tr. 103. She testified that a District program could address her behavioral management needs and could provide her with her required related services of and . Tr. 102; 108. Ms. testified that in her professional opinion, the class was appropriate for . Tr. 108.

Ms. testified that the staff at and the Parents disagreed with the placement. She stated that the team took their comments into consideration, however, in the end, made the final recommendation of 6:1:1. Tr. 103. They recorded the disagreements, informed the Parents of their rights through mediation or an impartial hearing and provided them with a Parent’s rights booklet. Tr. 104.

For the 2011-12 school year, Ms. testified that was in the at in a class which is equivalent to twelve students, two teachers and two paraprofessionals. Tr. 104. She stated that a ratio is equivalent to a . Tr. 104. The psychologist testified that because of they felt she would need a and . Tr. 105. In accordance with the minutes, it also indicates that it would be helpful when focusing and for . Tr. 107.

With respect to ’s overall academic and cognitive functioning at the time of the IEP review, Ms. testified that the source of the information regarding ’s present performance was Ms. , ’s teacher at . Tr. 109. Ms. testified that Ms. gave the team estimates of ’s instructional levels. Tr. 110. She stated that “[ ’s} reading decoding was at the mid-first grade level, her reading comprehension was at the mid-kindergarten level [ ’s] writing or written language was at the level and in math comprehension was at the mid-kindergarten level, and problem solving skills, beginning kindergarten. Tr.

110. Ms. testified that “[ ] recognizes some sound/symbol correspondence. She shows some delays in comprehension. She has a relative strength in math concepts, in quantitative reasoning, and shows some delays in and solving word problems, as well as comparing numbers. She is able to greet, respond and make requests, comment, ask questions, and make demands. She’s able to decode consonant-vowel – consonantwords, as well as diagraphs. She’s able to recognize … short vowels, initial and final consonants, and she has a lot of sight word vocabulary as reported. She can answer simple comprehension questions and identify numbers up to 100, as well as add and subtract single digits with the use of manipulation. She has some weakness in story recall and reading comprehension, and she demonstrates some minimum writing ability and can print legibly, and apply spelling to written words.” Tr. 109.

Based on the foregoing and based on ’s teacher’s suggestions on how learns best Ms. testified that the team wanted specific academic management needs for . Tr.

111. Ms. stated that requires a multi-modal approach to learning. Tr. 111. She explained that “multi-modal is having information presented in a variety of ways simultaneously.” Tr. 113. Accordingly, she stated that when a teacher gives oral directions, she may want to present that with a visual display. The teacher may also decide to model the directions kinesthetically using the student’s body to help with the learning and review of information. Tr. 112. In order to meet her needs Ms. stated that she would benefit from hands on approaches like manipulatives for math problems. Since responds well to praise and redirection, this would be necessary in her classroom management plan. In addition Ms. testified that since has some language delays, she would benefit from repetition and directions broken down or clearly stated in simple terms. Tr. 112. In addition she also stated that since is , redirecting her and helping her remain on task and maintain focus would be appropriate. Tr. 112, D-1.

With respect to performance, Ms. testified that is “described as a lovely girl who has a few friends and enjoys many activities.” D-1. greets the teachers and her peers independently, however has some difficulty maintaining eye control and staying on topic verbally. D-1. She is and requires and teacher redirection. D-1. Ms. stated that the present performance section was based on the teacher’s reports from , the SEIT who works with her and the Parents’ Social History report. Tr. 114. She testified that no one, at the meeting disagreed with ’s levels. Tr. 115. The needs that were developed include praise, redirection and and to cues in order to remain on topic and . Tr. 116. In addition, would be required since she needs some prompting to interact with peers. Tr. 116, D-1.

With respect to ’s health and physical development needs, Physical Therapy and Occupational Therapy were recommended based on the , interviews with the parents and reports from the and Physical Therapist. Tr. 117. Ms. Lucio testified that no one at the CSE meeting disagreed with the health and physical development needs that were developed. Tr. 117. Ms. testified that the related services that were recommended were based on the reports that were submitted at the CSE meeting as well as the input of the CSE team. Tr. 117. She also stated that no one objected to the related services at the CSE meeting. Tr. 118.

Ms testified that the goals that were developed on pages 1-7 through 1-12 of the IEP (D-1) were developed to address specific needs and draft goals were submitted by the teacher, related services providers or other staff members that worked with . Tr. 118-

124. These goals were then reviewed individually and the team determined whether each goal was appropriate. Tr. 119. Ms. testified that no one objected to the appropriateness of the goals. Tr. 124. She also stated that all parties were offered an opportunity to provide input into the development of goals. Tr. 124.

With respect to placement, Ms. testified that they considered three programs. They considered a special class in a community school which was a program and determined it would not be able to provide with the support she needed. Tr. 125. The CSE also considered , however, they determined that it would be too restrictive for since it was a non-public school program which is considered to be one of the most restrictive for all students. Tr. 125-126. The third program that was considered and ultimately offered was the special class in a specialized school which was the 6:1:1 program. Tr. 125. They felt this was less restrictive and supportive since it was a twelve month program, little regression would take place. Tr. 126.

Ms. testified that based on her professional experience, she believes the IEP addresses ’s needs and . Tr. 127.

On cross examination, Ms. stated that prior to the CSE meeting, she reviewed the reports and pre-conferenced with and . Tr. 135. She stated that they would meet the day before a CSE meeting to make sure they had the reports, current progress reports and insure that they were valid. Tr. 135-135. By valid, Ms. indicated that they were within a year or less. Tr. 136. Ms. testified that she did not read the reports verbatim at the CSE meeting, she just pointed out strengths and weaknesses, her summary and the recommendations. Tr. 138. In terms of Ms. , she appeared to have read the Social History verbatim and summarized the reports. Tr. 140.

Ms. also testified that none of the documents revised at the CSE meeting were drafted by the team members and she stated that she did not know if any of the school CSE members know personally, but she did not. Tr. 143. She stated that a classroom observation was not done since the school was on Long Island. Ms. also testified that she prepared the minutes at the CSE meeting (Tr. 151) and that after the meeting Ms. typed the IEP. Tr. 153. She testified that no one read verbatim the language in the IEP at the meeting, however the language came from the reports which were reviewed at the meeting. Tr. 158. Ms. also testified on cross that the goals were not drafted in contemplation of a 12:2:2 staffing ratio, but rather based on ’s needs.

On cross examination, Ms. testified that the students enrolled in a specialized school are all students who are classified under the IDEA as students requiring special education and there are no general education, non-classified students enrolled in a specialized school. Tr. 181. She stated that although there are no opportunities to mainstream, there is a transition program in a District program but the team did not recommend it for at this time. Tr. 171.

With respect to methodologies, Ms. testified on cross examination that it would be up to the teacher to determine what methodology would require i.e. , ABA, etc. Tr.

175. She stated that “any student can be recommended for a 6:1:1 as long as the ratio addresses their needs, and that [the] program that is offered addresses their needs.” Tr. 178.

In connection with after school and services, Ms. testified on cross that “the District 12-month program offers the services during the school and addresses sensory processing integration issues during the school day so it is programative in the recommendation that was made.” Tr. 199. Ms. also testified that she believed the SEIT was working on “academic related delays” and “she would be able to get the academic services in the program that (the CSE) recommended. Tr. 202. She further stated on cross that even though the after school SEIT worked on socialization and academics, additional repetition, and generalization, the CSE did not recommend it based “on the reports from the teacher, the oral reports and the functional levels”. Tr. 204.

Ms. specifically stated on redirect “Now, with regard to the sensory gym that she receives after school, the providers in a District program are skilled in working with students who have , and they work with students on , , the tapping that we discussed earlier. So her needs would have been addressed by the provider at the D school so that’s why it wasn’t recommended.” Tr. 210-11.

The second witness for the District was . She is the site coordinator at at 208 and has been for eight years. Tr. 231. She testified that her responsibilities include working with teachers on scheduling, assisting teachers with challenging student behaviors, holding bi-weekly meetings with teachers, providing teacher training, covering classes, interacting with parents and agencies that work with students on-site, etc. Tr.

232. She also gives tours of the school to parents. Tr. 232.

Ms. testified that she has a Master’s Degree in special education with an extension in bilingual and a Master’s Degree in administration. Tr. 232. Before she became site coordinator, she was a paraprofessional for two years, than a classroom teacher in a class for four years. Tr. 233.

Ms. testified that she gave the Parents and Ms. ’s SEIT a tour of in July of 201, including the classrooms and. Ms. , the assistant principal joined for part of the tour. Tr. 234-235. Ms. testified that they were only interested in seeing the classrooms that had space for their daughter. Tr. 235. She specifically showed them two classrooms; one was Ms. classroom in room and one was another teacher who was only there for the summer. Tr. 236. She also showed them the cafeteria, the playground and discussed with them how they dismiss in the school and how they receive students. Tr. 235. Ms. Pimentel stated that the student would have been placed in Ms. ’ classroom. Tr. 236. She testified that she wasn’t sure how long the Parents were in Ms. ’ classroom but she believed it was close to ten minutes. Tr. 237. Ms. also indicated that the Parents asked about class Y-76, however, after speaking to the principal she explained that since there was space available in the current classrooms, that class would only be opened if more space was needed. Tr. 237, Tr. 257.

On cross examination, Ms. stated that “[she] explained to the family that the two classrooms had space, but the family was interested in seeing Ms. ’ class because she is a teacher in [the] school and the other teacher was there only for the summer.” Tr. 240. She also testified that one of the students in the two classrooms with space had a one-toone paraprofessional. Tr. 242. When Ms. was cross examined about a in the classroom, she stated “I remember an interaction where one of the students left the instruction area and Ms. went and approached him and at that time . . . we were going to leave the classroom and the family was interested in observing the interaction. And when they came out they were satisfied with the way she interacted with the student, because she was able to bring him back to the lesson.” Tr. 248. She did not recall the teacher giving the student a blanket but she did recall that Ms. was using a hand puppet to convey her lesson and was reading from the board. Tr. 250.

On cross examination, Ms. testified that she showed the Parents the room where and would take place. She explained to the Parents at that time that it was also shared with the nurse and computer classes took place in that room. Tr. 256-257.

The last witness for the District was . She is a teacher in a class at and has been there for about ten years. Tr. 261. She testified that some of her responsibilities and duties as a teacher are: planning differentiated instruction for her students, regularly assessing students, creating IEP goals, communicating with parents on a regular basis and other teachers and service providers about the kids, preparing report cards, keeping a portfolio of the students’ work, etc. Tr. 262. She also testified that since they follow the common core standards, she needs to make sure that her job matches up to the common core standards and IEP goals. Tr. 261. Ms. testified that she has a Master’s Degree in special education and participates in professional development on a regular basis. Tr. 263.

Ms. Marcus stated that in July of 2011 she was teaching a class at . Tr. 263. She testified that “a classroom is designated for who are with sometimes or autism or on the …” Tr. 264. She testified that during the summer she thought there were five students in her class and the age range was seven and eight with one seven year old and the rest eight year olds. Tr. 264. The reading and math levels of the students were pre-k to high first grade. Tr. 265. In terms of , the levels of the students in the class were varied. Tr. 265. She testified that “there are some children who played well with other children and interacted and sought out communication with adults and other children and there were other children who needed a structured setting in order to do that”. Tr. 265. She stated that the students were generally pretty good at taking turns and sharing materials with a little support. Tr. 265.

Ms. said that she functionally grouped her students for reading, math, writing and general academic subjects and that they would be together as a group for a variety of social emotional play, game playing, a variety of trips, and . Tr. 264. Ms. testified that the class she is presently in is not the class she taught in July. Tr. 266.

Ms. testified that a class during the summer is different than a class during the school year. Tr. 266. She stated that a typical day would include morning meeting which is where the students come together, then there is calendar skills including counting the days of school, talking about the weather, birthdays, etc. Afterwards there may be a reading period, a math period, then gym or music, then writing and then lunch. After lunch there would sometimes be another literacy period or cooking or another concrete experience that they would be able to write about or do follow up literacy project work. For example there might be a science project. In the afternoons they might go outside for a snack, take a community walk to various places in the neighborhood. This might be combined with social studies as part of the curriculum. Tr. 267-268.

Ms testified that during the summer was also assigned to her classroom as a paraprofessional. Tr. 269. She has worked with him for approximately two other school years. Tr. 269.

Ms. testified that she normally assesses students when they came into her classroom and then at the end of the year. Tr. 270. She uses the ABBLS with children who are pre-academic and with those that are a little higher, she uses the DRA as a reading assessment and the BCAM as a math assessment. Tr. 270. She does this to see where to group the children. Tr. 270. The reading curriculum that Ms. used with her children had a component. Tr. 271.

In terms of the math curriculum, Ms. testified that she used Everyday Math. It was a spiraled curriculum that used a lot of manipulatives and covered more than computation. She would do a math lesson and then break up into groups based on the child’s level. She stated that she would also do math throughout the day while engaged in other activities ( i.e. in reading, when lined up on walks, etc.). Tr. 273. She stated that she used generalization in her class by learning something in a lesson and using it in a variety of ways throughout the day. Tr. 273. For instance, when studying patterns, they would go to and get a leaf and a rock and make patterns to readdress what they were doing in class. Tr. 277. Ms. also testified that she used prompting in her class by giving a child extra visual or additional help when teaching a lesson. Tr. 277.

Ms. indicated that there is a equipment in her classroom that helps children who have sensory needs. Tr. 275. She testified that she has a basket of things and some children go over to take something out of the basket when they need it and for others, the teacher needs to provide it. Tr. 276. She testified that the is often in the classroom and helps the teacher and the students . Tr, 276. Ms. stated that in the room there are big balls, skates, boards that the children scoot around on, weighted vests, weighted pillows, vibrating toys, etc. Tr. 277. She stated that she uses the sensory materials in the classroom when needed. Tr. 278. She testified that she was aware of the of her students and tried to accommodate them (i.e. one child needed to clap the teacher’s hand sometimes and she would see when he needed it and clap hands with him). Tr. 278.

With respect to homework, Ms. testified that she based homework on what they had done in school and IEP goals. Tr. 279. She stated that the students had different homework based on their functional levels. Tr. 279.

Ms. testified that she had a copy of s March 2nd 2011 IEP (D-1), and had an opportunity to review it. Ms. stated that ’s academic performance would be addressed by teaching her in a multisensory manner. Tr. 281. She testified that she would try to work with in order to get more detail from her when asking questions since she is already able to answer concrete questions. Tr. 281. She would continue adding and subtracting with manipulatives and then start to wean her off them and would work on that through physical jumping activities on a giant number line. Tr. 281. She would act out word problems to help understand them. In reading, her needs deal with comprehension and remembering what she read, so Ms. stated that she would use visual prompts in order to help her achieve success. Tr. 282.

Ms. testified that with respect to ’s academic management needs, she is a very nurturing and positive teacher and she tries very hard to have a very focused goal and lots of reinforcement. Tr. 282. She stated that refocusing, teacher prompts, praise are all part of her every day teaching. Tr. 283. Ms. testified that based on reviewing ’s IEP and her academic needs she felt that she would fit in well. Tr. 283. She stated that “there are at least two other kids in the class that were more or less had the same needs and on a fairly similar level to her, definitely in reading. One was lower in math and one would have been . . . about the same in math”. Tr. 283. She also stated that there were kids that needed encouragement to interact, however, once they had support and encouragement, they were able to interact. Tr. 283.

With respect to ’s social and emotional performance (D-1), Ms. testified that ’s needs would be addressed by “developing like language” in greeting. Tr. 284. There would also be structured opportunities for the students to play games with each other like building things and taking turns with the support of the teacher. Tr. 287-289. For some students, the teacher would create an embedded schedule so they would know the rules of the game and what to do. Tr. 285. Ms. said the students are generally encouraged to relate. For instance, they frequently have “share time” at the end of lessons with teacher support to talk to their classmates to show them their work. Tr. 285. Also there is play time included in the schedule so students can interact with each other with teacher support. Tr. 286.

In terms of the on ’s IEP, Ms. would create an embedded schedule for so that she would have the different parts of each activity broken up. Tr. 286. She would also get lots of praise and so that she would feel good about what she was doing. Tr.

287. Ms. also indicated that she uses and in her classroom. Tr. 287. When asked if would fit in socially, Ms. stated that “she would have fit very well because again I had the two children who . . . have a lot of parallel strengths and things they need to work on.” Tr. 288.

With respect to , Ms. stated that ’s needs would have been addressed in the following ways: “there is an APE teacher that . . . was here daily and would address her gross motor . . . when the whole group went to APE, there was an who would support, in addition to my own, you know daily things that I would do would support the fine motor and the visual perception.” Tr. 268. Ms. indicated that she would be aware of her IEP and would keep her needs in mind and support them in the various settings she was in (i.e. if she had decrease in balance, she would do a tightrope walk on a line in the playground). Tr. 289. In accordance with the health/physical management needs on ’s IEP, Ms. indicated that they have an OT and PT and that they each took the children out or pushed in depending on the child and his/her needs and mandates on his/her IEP. Tr. 289.

In the summer, Ms. testified that there was at least a trip a week and they included the Transit Museum, bowling, the Museum of Natural History and also tennis once a week. Tr. 290. Ms. stated that the educational purpose was for the students to learn about the outside environment, expose students to different settings and use the things the students learned in and out of the classroom. Tr. 290.

Ms. indicated that the first annual goal on the IEP (D-1-7) addressed reading performance. Tr. 291. She testified that she would have implemented this goal in a variety of ways. One way would be by using a book at ’s reading level, and either reading it aloud to her in a small group or reading it to her only and then asking for her to identify the facts in the story. The teacher might also use visual supports if necessary. Tr. 292. Ms. testified that The second goal dealt with writing in sequential order which is a literacy goal. Tr. 293. Ms. indicated that she might implement this through a concrete activity like a trip, and she might use photos or Mayer-Johnson symbols or other pictures to tell the story and have put them in order, first two, then three, depending on her success. Tr. 294. The next goal dealt with mathematics. Ms. testified that there is a math program that addresses this and they use a lot of manipulatives and she would use various techniques including the giant number line, number charts and manipulatives to teach to name numbers. She would also use spatial concepts throughout the day to familiarize her with them.

With respect to the goal for skills, Ms. stated that it would be addressed with the and through the course of literacy skill throughout the day. Tr. 296.

With respect to the goal for attending (D-1-10), Ms. testified that she would use visual cues and teacher reminders. She said that for some students she uses a timer and positive reinforcement. Tr. 297. In addition, Ms. testified that some kids require the help of the for attending. She testified that some students focus better if they have a weighted vest or a weighted pillow in their lap. Tr. 298.

With respect to the goal for improving social skills and the short term objectives, Ms. testified that they have an emotional literacy program including a “how you are feeling board” where students would pick out the feeling they are expressing and place it on the board and they would talk about it. Tr. 299. Another objective on ’s IEP involved imaginative play. Ms. testified that they do imaginative play during ELA and during interactive activities. Tr. 299.

With respect to the related service goals for , Ms. testified that the related service providers push in and pull out and they show her how to address the needs of the student in the classroom and she tries to incorporate the goals in the classroom. Tr. 301. She stated that she uses and uses the same language for making letters that the uses. Tr. 301. She also testified that if a child is working on balance in , she might use it on the playground or incorporates it in what they were doing. Tr. 301. In addition, she would work on throughout the day. Tr. 301.

Ms. stated that in the summer, the students in her class had related services and she communicated with the related service providers formally and informally. Tr. 302. She stated that the purpose of with the related service providers was to make sure she was addressing and helping support their goals. Tr. 302. Ms. also testified that she had a very policy with parents; they could call her anytime there was a problem or issue. Tr. 303. She stated that most of the kids had communication not books. Tr. 303.

Ms. testified that based on her knowledge of and her training as a special education teacher, she believed that would have “fit well” in the classroom and would “have gotten her needs met . . . very well in the classroom”. Tr. 304. On cross examination, Ms. testified that her knowledge of is based on her review at the March 2nd IEP. (D-1); Tr. 307.

On cross examination, Ms. testified that at the beginning of the summer she had five students in her class. Tr. 309. She stated that three were assessed using the ECAM and DRA and two using an ABBLS and that if had entered her class she would have assessed her using the ECAM and DRA. Tr. 310. She also testified that part of the methodology used in the classroom was TEACH, part of the methodology is called Chance and is specific to District schools and they use some of the activities from Floortime. Tr. 311. She does not use ABA. Tr. 312. She does not have specific training in TEACH, Floortime or ABA. Tr. 312.

Ms. testified on cross examination that she had five students in the summer and four were classified with and one with . Tr. 312. The teacher testified that she believed there was one seven year old who was in second grade and four eight year olds who were in third grade, though she was not 100% sure. Tr. 313. All five students were boys. Tr. 314. There was no one to one para for a particular student in her class. Tr. 314.

Ms. testified that two of her students were very , though one needed encouragement and was less spontaneous than the other. Tr. 318. One student used the s booklet (Tr. 319) and the other two needed visual cues and prompting. Tr. 319. Ms. testified that typically the summer class gets reconfigured in the fall after they are reevaluated. Tr. 326. She also testified that the students go on trips and go to tennis with other classes and participate in birthday celebrations together as well. Tr. 335.

Ms. testified that although the , nurse and computer teacher work out of the same room, it is divided into sections and the usually works in the gym or a different space and the sometimes works in the hall because she uses the scooter board and other large equipment. Tr. 347.

Ms. testified that in the summer the students do not work in large groups, however, in September they have skill streaming and the children go to different classes depending on their assessed level for reading and math and their ability to make the transition. Tr. 351. Skill streaming is done to meet the students’ needs. Tr. 352.

Ms. testified that none of the children in her summer class had behaviors that seriously interfered with instruction or they would have had a para. Tr. 358. Ms. said that students in her class would . Tr. 359. When questioned about the student that had a tantrum when the parents visited, Ms. stated that “At the beginning of the summer, the kids were brand new . . . and it was a really big change for them. And there was one child who had at the beginning, but by the end was not because it was a familiar setting and he was no longer a new pupil.” Tr, 359. Two students had self- . Tr. 361. The five students were not in the same reading group. Tr. 366. Three were in one group and two in the other. For math, three were at a through first grade level and one was pre-k. Tr. 371.

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual 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. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). 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. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

A school district offers 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 Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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 Sch. Dist., 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 at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 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 (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The Parents allege that the District did not comply with the procedural requirements of the IDEA. The Parents allege that the CSE was improperly constituted since there was no general education teacher at the meeting. IHO-IV. Ms. Lucio explained that there was no general education teacher at the meeting since all parties were in agreement that they were not considering a general education setting for the student due to CM’s disability and deficits. Tr. 97-98; IHO-III. Accordingly, the CSE consisted of all legally mandated members as required by Federal and State regulations. (see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1].

The Parents further allege that the CSE classified as impaired (D-1) and did not reference the other diagnoses in the March 2nd IEP. It is evident from the record that the CSE team considered and utilized the diagnoses of , as set forth in Dr. ’s Report (D-4) when preparing the March 2nd IEP. They also reviewed the Social History Report (D-5), Classroom Report (D-6), Report (D-7), Report (D-8), Progress Report (D-9), Draft Goals/Objectives( D-10 ) and an Report (D-11) and utilized them when making their recommendations. Ms. testified that they were reviewed prior to the meeting and then discussed at the CSE meeting. Tr. 104. Therefore, in developing the recommendations for ’s IEP, the CSE considered all of the evaluative materials including the most recent reports from and Dr. , and reviewed in detail the student’s academic and learning characteristics and needs, development and needs, functional and developmental needs and managerial and needs. Therefore, the Parents were given a meaningful opportunity to participate in the development of the IEP and did in fact participate in its development. The March 2nd, 2011 IEP (D-1) that was developed was designed to address s needs and was based upon the evaluative information and reports presented at the CSE meeting.

The Parents, the student’s SEIT, the staff from including ’s classroom teacher and the psychologist at were present and participated in ’s CSE meeting. In fact, the teachers, related service providers and other staff working with prepared the draft goals/objectives that were reviewed at the March 2nd meeting and incorporated into the IEP. Ms. testified that each goal was reviewed and the team determined whether each goal was appropriate. Tr. 119 She also indicated that no one objected to the appropriateness of the goals and that all parties had the opportunity to provide input into the development of the goals. Tr. 124. There is also evidence that the teachers and related service providers are using the goals that were prepared in the March 2nd IEP and have found them to be appropriate.

As of the first day of school, the District provided testimony that there was room for class at P226 at 208. Tr. 236. The Parents, however, argue that the Final Notice of Recommendation from the District recommended Class Y-76 at and that that class did not exist as of the first day of school. Tr. 879. It is clear from the testimony, however, that prior to the start of the school year, the Parents were aware that that class did not exist and that there was availability in two other classes at the school. They were informed of this when the called the school and when they came in to observe. When the Parents toured the school, they were specifically told that would have been placed in Ms. ’s class. Tr. 236. I t is clear that if the District did not have a placement for the child as of the first day of school then there would be a denial of FAPE, however, the District did have a placement in a class that would have met her needs.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its March 2nd CSE meeting provided with FAPE in the LRE and that a 12 month placement in a special class in a specialized school was appropriate and was designed to address ’s needs. The District’s witnesses provided testimony that the program for . was comprehensive and targeted at her disabilities. Specifically, Ms. , provided testimony concerning how she would have addressed her academic management needs, her needs, and her health and physical development needs in order to provide her with the appropriate supports under her IEP, provide her with educational benefit and enable her to make progress. Tr. 284-289.

It was clear that a special class in a special school with a ratio would meet her needs in the least restrictive environment and allow her to make progress and receive educational benefit. State regulations provide that a special class placement is designed for students “whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention.” (8 NYCRR 200.6 [h][4][ii][a]). Ms. testified that based on ’s , the team believed that she required an intense structured and individualized program for and a program in a District 75 school would provide that program. Tr. 103.

Dr. , in her Report dated July 5, 2010 stated that “CM requires a small, structured classroom setting with teachers who can provide the support for her expressive and receptive language deficits and can provide a multisensory approach to learning.” D-

4. She also stated that “ requires a 12 month program. She needs consistent repetition to master materials.” D-4; Tr. 678. Based on a close reading of the IEP and the testimony of the District’s witnesses, the placement offered by the CSE would provide with all of the requirements Dr. suggests. Dr. did not, however, recommend the District’s program. She instead recommended the program citing the progress made during the school year at and the school’s emphasis on language. D-4; Tr. 692. She also stated that she has never been to . Tr. 693. Even though her recommendation was for a small classroom, she stated that placing her in a class would be a step back from a class since she presently has ten students in her class and needs positive role models . Tr. 682. She then stated that small is not necessarily better since she needs the range of students for socialization. Tr. 681. Although the availability of more role models in the class was articulated by the employees and the after school SEIT, this is not an appropriate reason to deny FAPE in this matter.

Ms. testified that a ratio is equivalent to a and regardless, she believed that the smaller setting was necessary for and need for . Tr. 105. In addition, she thought it would be helpful with focusing and socialization. Tr. 107.

With respect to functional grouping, the IDEA contains no requirement that special education students be grouped in a particular manner, however, State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs(8 NYCRR 200.1[ww][3][i], 200.6[a][3]; see Walczak, 142 F. 3d at 133; Application of the Dep’t of Educ., Appeal No. 11-066; Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep’t of Educ., 11-066; Application of a Student with a Disability, Appeal No. 09082; Application of the Dep’t of Educ., Appeal No. 08-095; Application of the Dep’t of Educ.; Appeal No. 08-018 ; Application of a Child with a Disability; Appeal No. 07-068; Application of a Child with a Disability, Appeal No. 05-102). Stat regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom (8 NYCRR 200.6[a][3][ii],[iii]).

In the instant case , Ms. Marcus stated that based on her knowledge of as a result of her review of the March 2nd IEP, she felt that would” fit well” in the classroom and “would have gotten her needs met”. Ms. testified that she had five students in her classroom, four were diagnosed with and one with . Tr. 312. She testified that there was one second grader and four third graders and that two of her students were very communicative and verbal, one used s and the other two needed visual cues and prompting. Ms. testified that her students ranged between pre-k through second grade for math. With respect to reading Ms. testified that two kids were pre-k, one was kindergarten and two were first grade. Tr. 365. During the summer of 2011, Mr. was ’s teacher and he testified that was in the early to middle first grade level in phonics, and the kindergarten level in comprehension. In math she was between kindergarten and second grade level depending on whether it was reasoning or computation. Tr. 597. Therefore, appeared to be suitably grouped for instructional purposes. In this regard, Ms. testified that in September they have skill streaming and students go to different classes for math and reading depending on their assessed level and their ability to make the transition. Tr. 352. The Parents objected to the fact that there were only boys in the class Both Ms. and Mr. indicated that although benefits from girls in the room, they cannot say that it would be detrimental to place her in a class with all boys (Tr, 404) or that it was required for her to benefit academically. Tr. 638.

It is clear that the District considered several programs before deciding on a special class program in a specialized school including the Parents program at D-1. They determined that a special class in a community school with related services would not provide sufficient levels of support to address the Students needs and this program had been rejected by the Parents the previous year. Tr. 101. With respect to a class in a specialized school, they thought she would need a smaller setting to meet her needs. Tr.

99. Finally with respect to her placement at , the team felt it was too restrictive. D-1. In addition to the fact that it is a special education private school with no opportunities for mainstreaming, travels one hour in each direction instead of being educated in her community. It should be noted that testimony was provided indicating that although the District program does not have opportunities for mainstreaming, there is a transition program for students in District schools but it was not recommended for at this time. Tr. 171.

With respect to related services, the CSE provide with Therapy, 1 times per week, 30 minutes each time; ; , 3 times per week, 30 minutes each time; ; , 2 times per week for 30 minutes each time, ; and , 2 times per week for 30 minutes each time; .The Parents and the District agreed that these services were appropriate for .

The Parents, however , believed that was also entitled to the after school SEIT for 8 hours per week on a basis and services for 45 minutes, one time per week, The nd CSE discontinued these after school services on the March 2 2011 IEP. The Parents argue that the decision to discontinue these services was predetermined by the CSE. There is no evidence indicating that this was the case. Ms. testified that the District 12 month program offers the services during the day and that “it is programmative in the recommendation that was made” and that this is also true of the SEIT services. Tr. 199;

204. She specifically stated that she believed the SEIT was working on “academic related delays” and “she would be able to get academic services in the program the [CSE] recommended. She also said that with respect to the sensory gym that attends after school to deal with her , the providers in a District school are skilled in working with students with this diagnosis and her needs would be addressed in school. Tr. 210-211. Although the teachers and related service providers at believe that the after school services benefit , none indicated that they were required nor that she couldn’t make progress without the, Tr. 464, 490, 622-623, 633-634, 642. Tr. 778.

For all of the foregoing reasons, I find that the District provided FAPE to CM for the 2011-2012 school year . Hence it is not necessary to consider Prongs 2 and 3. See, Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record. Issue 1I-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of CM at SLCD. In order to meet that burden, the Parents must show that SLCD offered an educational program designed to meet CM’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “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). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). It should be noted, however, that while evidence of progress is relevant, it does not establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing that was an appropriate placement for . First it must be noted that is a state approved special education school. All of the teachers and service providers are New York certified. The staffing in ’s class with two teachers and two paraprofessionals students allows for individualized instruction as needed for each student. Since has a , in addition to her other disabilities, the school program is language based and language is incorporated in every lesson throughout the day. Tr. 392. Her teacher Ms. indicated that they use a lot of visuals, prompting, hands-on, and a lot of repetition which enables to maintain and generalize information. Tr. 456. The is also helpful and helps and with . Tr.455 She also is provided with the related services of and the teachers and related service providers work together to improve ’s skills. There is evidence from her teachers and service providers and her Parent that she has made slow and steady progress while a at . I find that with their special education program would meet the student’s unique special education needs.

The Parents did not, however meet their burden with respect to the need for the after school SEIT and services. The teachers at and the related service providers agreed that it was beneficial but not necessary in order for to make progress and receive educational benefit at . Tr. 464, 490,622-623, 633-634, 642.

Therefore, in the event the District had not met its burden under Prong one, the Parent met their burden in proving the appropriateness of , however , they did not meet their burden with respect to the after school SEIT and OT services. Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

I find that the Parents participated in the March 2nd CSE meeting and provided the school with all reports, and other necessary evaluations and reports. They contacted the District as soon as they received the Notice of Recommendation (D-3) regarding the existence of the Y76 class and their desire to visit the program. In fact, they spoke to the school and wrote to them several times regarding ’s placement. Prior to their visit, the put the District on notice that they would visit the program when school opened and that they would continue ’s placement at in the interim. P-G. Following their visit in July, they sent another letter to the District rejecting the placement and requesting reimbursement for the tuition at and the after school SEIT and services. P-E.

Based upon their actions, in terms of equitable considerations, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District provided FAPE for the 2011-12 school year. Accordingly, the Parents request for tuition reimbursement for SLCD along with eight hours of after school SEIT services and 45 minutes of after school Occupational Therapy for the 2011-12 school year is denied in its entirety.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the Parent’s application for continued placement for the Student at the ( ) for the remainder of the 2011-12 school year is hereby denied; and it is

ORDERED, that the Parents application for reimbursement of/funding for/direct payment of tuition for or the issuance of a Nickerson letter/P-1 letter for funding for a New York State approved school for the 2011-12 school year is hereby denied; and it is

ORDERED, that the Parents application for reimbursement of/funding for/direct payment of costs and fees, and appropriate transportation or reimbursement for transportation costs, should it not be provided for the 2011-12 school year is hereby denied; and it is

ORDERED, that the Parents application for reimbursement of/funding for/direct payment of and provision of appropriate related services including eight hours per week for SEIT/SETTS/ABA services after school by a related service provider and 45 minutes per week of after school sensory gym-based by a related service provider for the 201112 school year is hereby denied. Dated: April 25, 2012 Corrected Date: May 3, 2012 (Correction made to Evidence List)

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT EXHIBITS

No. Date Document Pages

1 3/02/2011 Individual Education Program 14

2 Undated CSE Minutes 10

3 6/15/2011 Final Notice of Recommendation 1

4 7/05/2010 Report 6

5 12/15/2010 Social History 3

6 2/04/2011 Class Report 3

7 1/29/2011 Report 3

8 10/16/2010 Report 5

9 2/08/2011 Progress Report 13

10 2011-2012 Draft Goals and Objectives/Benchmarks 5

11 11/29/2010 Annual Review Physical Therapy Report 2

12 Undated Contact Sheet 1

PARENTS EXHIBITS

No. Date Document Pages

A 6/30/2011 Impartial Hearing Request 7

B 7/07/2011 Due Process Response 4

C 5/26/2011

D 7/11/2011 Summer Session

Proof of Payment 7

E 7/28/2011 Amended Impartial Hearing Report 10

F 6/16/2011 Letter to with Fax

Transmission Report 3

G 6/20/2011 Letter to with Fax

Transmission Report 2

H 7/12/2011 Letter to with Fax

Transmission Report & Enclosures 25

I 3/02/2011 Individualized Education Program 14

J 4/21/2010 Individualized Education Program 11

K 7/05/2010 Report 6

L 6/27/2011 Request for Medical Accommodations/

Authorization for Release of Health

Information 2

M 2/04/2011 Annual Review

Classroom Report 3

N 2011-2012 , Least Restrictive

Environment Statements 1

O 2011-2012 , CSE Recommendations 2

P 8/12/2011 Order on Pendency 5

Q 8/15/2011 , Progress Report for IEP

Goals and Objectives 8

R 6/27/2011 Summer 2011 Enrollment Contract 2

S 8/11/2011 Attendance Record 1

T 9/06/2011 2011-12 Enrollment Contract 2

U 10/14/2011 Amended Due Process Response 4

V 8/29/2011 Evaluation 6

W 2011 Central Activity Processing Evaluation 10

X Misc. Invoices/

Proof of Payment 15

Y Misc. Teacher Certificates 21

Z Misc. NYC DOE Teaching Assistant

Paraprofessional Certification 2

AA 5/2007 NYC DOE Qualification Requirements for

Employment as Fulltime Education

Paraprofessionals 2

BB Undated NYS Office of Teaching Initiatives,

Teaching Assistants Pursuing Certification 4

CC Undated NYC DOE, The Continuum of Services for

Students with Disabilities 56

DD 11/23/11 Progress Reports for IEP Goals

And Objectives 9

IMPARTIAL HEARING OFFICER

No. Date Document Pages

I 1/0/25/2011 NYC Department of Education

Memorandum of Law 4

II 10/25/2011 Parents’ Memorandum of Law 5

III 11/21/2011 Email from IHO and Memo 3

IV 3/16/2012 NYC Department of Education

Closing Brief and Memorandum

Of Law 15

V 3/16/2012 Parents’ Closing Brief and

Memorandum of Law 30

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Footnotes

[1] was present to testify on October 13, 2011, however, did not end up testifying. On October 3, 2011, the Parents objected to using Board of Education interpreters for Ms. . Ms. was a participant at the March 2, 2011 CSE meeting and utilized Board of Education interpreters at that time. In the present matter, I ruled that it was appropriate to go forward with the October 3rd hearing using the interpreters that were present. Following my ruling, the parents requested an adjournment so that they could hire an independent interpreter to observe the translation of the questions and testimony. Tr. 78. The District agreed to the adjournment and never recalled Ms. to testify on any subsequent hearing dates.