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 26, 2011

September 28, 2011

October 3, 2011

November 4, 2011

November 18, 2011

December 9, 2011

December 16, 2011

Actual Record Closed Date: February 7, 2012

Hearing Officer: .

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 26, 2011

Attorney — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 28, 2011

Attorney — Student

Mother — Student

Attorney — DOE

CPSE Administrator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 3, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 4, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Teacher at (Via Telephone) — DOE

Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2011

Attorney — Student

Parents

SEIT Therapist (Via telephone) — Student

DOE Attorney — DOE

Coordinator (Via telephone) — DOE

Teacher (Via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2011

ESQ., Attorney — Student

Parents

Clinical Director, (Via Telephone) — Student

Teacher, (Via Telephone) — Student

(Via Telephone — Student

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 16, 2011

Attorney — Student

Parents

DOE Attorney — DOE

INTRODUCTION

This hearing was requested on August 3, 2011, by of , LLP, Attorney for Parent and Student, . The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA) §§ 1415(f) & 1412 (a) (10)(C), to obtain placement of the Student in a state approved private school during the 2011-2012 school year. I was appointed to hear the matter by the Department of Education of the City of New York [Hereinafter referred to as “the District”.] on August 5, 2011 and a hearing was scheduled for August 26, 2011.

The hearing commenced on Friday August 26, 2011, at 9:30 in the a.m. pursuant to the IDEIA 20 U.S.C. §1415 (f). The hearing continued on September 28, 2011, October 3, 2011, November 4, 2011, November 18, 2011, December 9, and 2011, and December 16, 2011.

Appended to the record are lists of the persons in attendance at the hearing and the documents received into evidence.

BACKGROUND

Student is a , classified with ( ) and currently attending the .^[1] The is a approved non-public school, and student was placed there at the request of and with permission of the District On December 6, 2010.

Student was first classified as a on October 1, 2009, while attending his year and . The July 27, 2010 Individualized Education Program (IEP) recommended Student be placed at however, a seat was not available for Student until the end of October 2010. In November, Student was expelled from . Student attended for only one month because it became apparent that it was not an appropriate setting for him due to his behaviors. The Committee on Preschool Special Education (CPSE) reconvened on December 6, 2010 to offer placement at the , and met again on December 17, 2010 to increase Student’s special education itinerant teacher (SEIT) hours from 10 to 18. The SEIT hours were received at Student’s new afterschool day care program at .

In February of 2011, Student was to transition from the CPSE to the Committee on Special Education (CSE), and his “ meeting” was held on March 29, 2011 wherein a IEP for the 2011-2012 school year was developed. The CSE classified Student as and recommended classroom in a specialized school in District , and individual for 2 individual sessions per week for 30 minutes per session.

HEARING TESTIMONY

Appearing for the Student were: , Attorney, Parent , , Clinical Director,

School (via telephone), , Teacher (via telephone) (via telephone).

Appearing for the District were , Attorney, , CPSE Administrator (via telephone), , School Psychologist,(via telephone), , Teacher at (via telephone), , Psychologist (via telephone), , Coordinator, (via telephone), , Teacher (via telephone).

was duly sworn, affirmed that she was alone in a room, that she had no documents with her and testified via telephone. (Tr. p. 35). Ms. then left the room she was occupying to retrieve the IEP's that had been forwarded to her by the District. (Tr. p. 36). Ms. testified that she is currently employed by the at . The witness has been employed by the District for 31 years and currently her position is a CPSE administrator. (Tr. p. 37). The witness described her duties and responsibilities as a CPSE administrator as reviewing evaluations of students, conducting reviews, meeting with parents, staff, and making recommendations for special education services, in addition to administrative work. (Tr. p. 38). Ms. holds a Bachelor’s degree from New York University, a Master’s degree in special education, a Master’s degree in American history and Russian history, and a supervisory administrative certificate from Hunter College. (TR. He. 38). The witness testified that she had licenses as a principal, assistant principal and educational administrator.

Ms. testified that she participated in the October 1, 2009, IEP meeting for Student, that she had had the opportunity to review the IEP created from that meeting and was familiar with it. (Tr. p. 39 at 4 – 13). Ms. attended this meeting in the capacity of a CPSE administrator; the witness testified that the purpose of this IEP meeting was to address a letter that she received from the concerning Student. This meeting was an initial review of Student and was for the 2009–2010 school year. (Tr. p. 39-40). Ms. testified that in addition to herself, Parent, a special education teacher, and from the were present at the meeting. (P's Ex. H). The witness testified that there was no general education teacher present at this meeting, and at the time of this meeting Student was in a general education preschool class. (Tr. p. 43).

The witness testified that she reviewed psychological, social history, therapy and evaluations in preparation for this meeting. The evaluations were conducted by . The witness testified that the IEP was partially drafted before the CSE meeting because the evaluators provide pages 3,4,5 and six of the IEP, but that she did not personally draft any pages before the CSE meeting (Tr. p. 45 at 8 – 15). Mr. testified that the recommendation stemming from the October 1, 2009 IEP was for a SEIT (special education itinerant teacher) with related services. Although not indicated on the IEP, the CSE team discussed and intended Student to attend the school for the 2009- 2010 school year. The witness explained that IEP's do not indicate the name of the school if it's a regular education classroom. (Tr. p. 47). Ms. testified that the recommendation for a SEIT with related services was made because Student was exhibiting behavior issues at the and it was decided that because of his socialization skills and issues that Student needed more support. (Tr. p. 48 at 13 – 22). Student was classified as child with a disability, which the witness testified, is the only classification that exists for students. The witness testified that there were no social\emotional management needs developed for Student by the psychologist who evaluated Student, and therefore none were listed on the IEP. (P's Ex. H – 5). The witness believed that the related services of would address needs and therefore a Functional Behavioral Assessment did not need to be developed. (Tr. p. 53). The witness went on to explain that, at that time, she felt that the SEIT and would be enough to support Student in the classroom and that the support services would be sufficient. (Tr. p. 54).

Ms. testified that no one present at the meeting had any objections to this IEP. The witness further testified that Parent did not raise any concerns or objections to the program. (Tr. p. 61). In the witness's opinion, the program recommendation was appropriate for Student. (Id.). 2010-2011 School Year

Ms. testified that she participated in the CSE meeting of July 27, 2010, for the 2010–2011 school year, in the capacity of the CPSE administrator. The witness testified that the reason for this meeting was that Student was not making the progress that had hoped for and the school felt Student needed a more restrictive environment and had expressed this through a letter to the District. (Tr. p. 62). Present at this meeting were the SEIT, , the Coordinator from and a special education teacher. Parent was not present at this meeting however the witness testified that a letter was sent to Parent notifying her of the meeting, and that the District had two telephone numbers for Parent at that time, one number was not working, and a message for Parent was left at the second number. (Tr. p. 64, D’s Ex. 3 at p. 2). The witness further testified that from the also reached out to the Parent prior to the meeting. The witness testified that in preparation for this meeting, the team reviewed Student's previous IEP, a letter from the and reports from the SEIT. The witness testified that she drafted the IEP, and that the recommendation from the July 27, 2010 IEP was a special class with related services, which was a change from the October 1, 2009 IEP. The recommendation from the July 27, 2010 IEP was a recommendation for special education school with a smaller staffing ratio in a more restrictive environment. (Tr. p. 65). The recommendations for 10 hours of SEIT services, given outside of school in the that Student was attending remained the same as the previous IEP (Tr. p. 68). The witness testified that she believed that these changes to the IEP would address . (Tr. p. 70). The witness testified that she did not believe that Student required any other related services than the ones provided, and that an Functional Behavioral Assessment (FBA) was not needed because the change in the program would be sufficient to support Student. (Tr. p. 71). December 6, 2010 IEP (D's Ex. 5)

The witness testified that the December 6, 2010, IEP meeting was held for the purpose of finding a more supportive special-education class and school for Student. (Tr. p. 75). There were no other participants present at this meeting, and Parent participated via telephone. (ID.) In preparation for this meeting the witness reviewed a SEIT report and had a telephone conversation with the principle of Center, the school that Student was enrolled in at the time of the December 6, 2010 meeting. (Tr. p. 76). The principal at requested this review meeting because of difficulties in , and because Student was and was . (Tr. p. 83). The recommended placement stemming from the December 6, 2010, meeting was for special class with related services at the , a special education school for children who are of average intelligence but who are

Tr. p. 77). Ms. testified that she recommended the because she dealt with them in the past and has knowledge that the school works with children who have average intelligence, who are capable of learning, but are having severe emotional problems. The witness stated that the Parent had no objections to the placement at the . (Tr. p. 78). The witness testified that the goals on this IEP remained the same as from the July 27, 2010, IEP because she wasn't given any new goals due to the fact that Student had not yet achieved the goals recommended on the July 27, 2010 IEP. Ms. testified that in her opinion, the program recommendation on the December 6, 2010 IEP was appropriate for the Student. (Tr. p. 81).

December 17, 2010 IEP (D's Ex. 4)

The witness testified that she was present at this meeting in the capacity of administrator; in addition, also present were Parent, the SEIT, the SEIT director the supervisor, and the service coordinator of special education with head start. The SEIT agency requested this review meeting. (Tr. p. 85). The purpose of this meeting was to increase the SEIT hours received by Student, as the SEIT agency felt that while was at that he needed on each day. (Tr. p. 85). The placement at was made by Parent, and the SEIT services were provided by the District at this afterschool program. (Tr. p. 86). No one had objections to the addition of eight more SEIT hours. No new annual goals were developed because, the witness testified Student was not achieving. (Tr. p. 88).

was duly sworn, testified that she was alone in a room, and testified via telephone. (Tr. pp. 153 – 154). Ms. testified that she has a Bachelor’s degree, majoring in education, Spanish-language, and literature. She has a Master’s degree in bilingual bifunctional education and a Master’s degree in bilingual school psychology. (Tr. p. 166). The witness has been employed by the District for 18 years and that currently she is a bilingual (Spanish language) school psychologist, (Tr. p. 159) that her duties and responsibilities as a school psychologist include assisting teachers, parents, students and attempting to ascertain any difficulties that a child might have in the classroom and how as a team “we could find the best placement and class programs for a child”. Ms. testified that she participated in the March 29, 2011 CSE meeting. (Tr. p. 162). The witness testified that she had worked on the IEP on or about March 29, 2011, prior to the date of the meeting, in order to get a rough draft of the IEP. (Tr. p. 165). March 29, 2011 IEP (D's Ex. 8)

Ms. described the April 11, 2001 CSE meeting as a "turning five IEP". She testified that a turning five IEP is performed when the Student is soon to be old and is expected to enter a public school. Prior to years old, all are classified as " with a disability", and when a student turned five the District and the parent review a student's current setting and their progress and decide which disability, of the 13 disabilities that the Board of Education recognizes, fits a particular student. (Tr. P. 168). Ms. attended this meeting in the capacity of District representative and school psychologist. (Tr. p. 169 – 170). Present at this meeting was the administrator from the , the psychologist from the , the teacher from the Parent, and the witness, all present in person. Ms. stated that the had provided the District with excellent updates including updates from his teacher, the psychologist, the 12 month rationale, as well as the BIP (behavior intervention plan). The witness testified that she believed that the had used the BIP during the school year. (Tr. p. 173).

Ms. testified that she discussed with Parent the availability of 13 different classifications. At the March 29, 2011 meeting, Student was given a classification of " ". (Tr. p. 177). The witness testified that all of the members present at the meeting reviewed each and every classification, and agreed that , , was "definitely the disability that best described Student at that moment". (Tr. p. 178). The witness testified that she believed she had sufficient information, including information from the , the Parent input, and her observation of Student, to create a new IEP that was appropriate for his upcoming school year. (Tr. p. 181). Ms. testified that after observing Student, she had envisioned a recommendation of (ICT) program with a specific teacher. Parent did not agree with the ICT recommendation, nor did the participants from the . (Tr. p. 182). The witness explained that she felt that the was too restrictive of placement for Student. (Id.). Ms. testified that, at the meeting she felt the group needed to come to mutual consensus regarding recommendations for the Student. No one present at the meeting agreed with her suggestion for , and the witness felt that the current classroom setting was too restrictive for Student. She stated that at the meeting a consensus was definitely reached to classify Student with and placement in specialized school, , with twice per week for 30 min. Parent had no objections to this recommendation. (Tr. pp. 192 – 193). Ms. testified that she decided to adopt the and (D' s Ex. 21) because she was told by the Center that this BIP was working with Student, and "if something is working, then you just leave it alone". (Tr. p. 203).

Ms. testified that before the turning five IEP, the staff from the expressed to her that Student had and support, and that Student . However, during the two-hour observation made by the witness, she did not observe any of these described behaviors. (Tr. p. 187). The witness explained that because she did not witness any of the described behaviors she began to believe that restrictive environment. Ms. testified that as a psychologist, she believed that two hours is long enough for an observation of a child who was described as prone to acting out. (Tr. p. 187). Ms. did not consider performing a second observation of Student (Tr. p. 257). The witness testified that the teacher’s report of Student’s academic progress differed from Parent's. The teachers described Student as not knowing all his letters, or shapes, or all the colors. The witness stated that Parent said that she was going to show them home videos of Student to evidence all that Student was expressing academically at home. (Tr. p. 190).

Ms. testified that approximately a week and a half after the CSE meeting, she received an e-mail from Parent stating that she was not happy with the placement, and wished to have an informal meeting with the witness. (Tr. p. 264). An informal meeting was held sometime in May of 2011 which was attended by all of the same members present at the CSE meeting. Parent came to this meeting with the letter, and stated that she wanted Student to remain at the because they would be able to service them better in terms of No new findings were brought to light at this meeting, except the possibility of a crisis, due to the fact that Student likes to play with, and (Tr. p. 214). The witness testified that she did not recall this information ever having been discussed before this second informal meeting, and she did not believe that this information was cause for a new classification or new CSE meeting.

was duly sworn in, stated that she was alone in a room, and testified via telephone. (Tr. p. 282). Ms. testified that she is a special education teacher and has been employed with the District since 1979. She has a Bachelor’s degree with a dual major in psychology and education, a Master’s degree in special education, and is currently working on a Doctoral degree in curriculum and instruction. The witness testified that she is a licensed teacher and state certified special education teacher for elementary students (Tr. pp. 284 – 286).

Ms. is a special education teacher at , the proposed placement. The witness taught summer session beginning July 7 of 2011, in a class for special education. Ms. testified that if the students in her class had an IEP requiring related services, that the students received those services in a pullout fashion from the classroom. (Tr. p. 299). The witness testified that all of her students in the summer 2011 class had a classification of . (Tr. p. 301). Based upon her reading of the IEP, Ms. believed that Student’s stated goals were similar to those of her other students, and academic functioning was also similar to the other students. (ID.). The witness testified that Ms. was currently teaching the students that were in Ms. ' summer class.

There was no testimony by this witness that Student would have attended her class the summer of 2011.

was duly sworn, stated that she was alone in a room and testified via telephone. Ms. testified that she is the school psychologist at , a special education preschool. (Tr. p. 355). Ms. stated that she has a Bachelor’s degree in psychology, a Master’s in education, and additional certification as a school psychologist with the State of New York Department of Education. (Tr. p. 357).

The witness was the assigned to Student to provide the services mandated by his IEP, and she first met with Student October 21, 2010. (Tr. pp. 357 – 358). While attending , Student was assigned a classroom with students, one certified special education teacher, and two teaching assistants. Ms. was Student's from October 21, 2010 until December 8, 2010. The witness testified that she felt that Student was progressing and making some improvement in meeting his social/emotional goals. (Tr. p. 362). Ms. testified that based on a conversation with Parent, Student was to be placed at the by Parent and that Student was not expelled from . (Tr. p. 364).

The witness testified that after the first two weeks of Student’s attendance at , that Student began to . He was observed to , and . (Tr. p. 365). These were ; the Student , or the other students in the classroom removed to a safer portion of either the classroom or the building to contain . (Id.) Ms. that she for Student, as she does with all of her students, and was using in the classroom as well as those developed by the classroom teacher. During , the witness was working with Student to teach him some coping strategies, such as .

The witness testified that Parent never expressed to her a belief that Student’s needs were not being met by the school. (Tr. p. 373).

was duly sworn, testified that she was alone in the room and that she had documents that were contained in the district's disclosure. (Tr. p. 397 – 398). Ms. testified that she , which is a that has a number of programs that service that community, including early , and the . The witness is employed by the early childhood program as the family services disabilities coordinator for the . (Tr. p. 399). Ms.

testified that she has a Bachelor’s degree in psychology and a Master’s degree in education. (Tr. p. 400). The witness explained that her service workers and ensuring that they are completing the family development plan for their families. In addition, she works with parents, and assists families in getting their children's services, helps them with their for the evaluations and makes sure that children receive the appropriate services at the school that are mandated on a child's IEP. (Tr. p. 401).

The witness testified that she is familiar with Student because he attended the , and the witness was the person who actually wrote the initial referral letter in July of 2009. (See P's Ex. A). The decision to refer Student was a joint decision between the witness, the teachers, and the Parent. According to Ms. , the Parent was interested in having the child referred. Ms. participated in the October 1, 2009 initial IEP meeting for Student as support to the Parent and an advocate for Student. (Tr. p. 404). As a result of that meeting, Student was , assigned a per week and for one hour per week. (P's Ex.

H) Ms. testified that Student did receive the SEIT services through ( ) and that he also received as proscribed on the IEP through the placement services. (Tr. p. 405 – 406). Ms. was not conducted nor was it BIP developed or discussed at this meeting. (Tr. p. 420). July 27, 2010 IEP The witness testified that in approximately June of 2010, requested another CSE meeting in order to request additional services for Student. (Tr. p. 407). Ms. testified that she requested the CSE reconvene because Student’s teacher had reported that Student had low , and which was affecting him in the classroom. (Tr. p. 417 – 418). As a result, a new IEP was developed on July 27, 2010 resulting in Student's SEIT services remaining and Student was given placement at a . The witness testified that the discussed at the meeting was . Student’s morning placement would be a , and his afternoon placement (as where he would receive the SEIT services in the afternoon. (Tr. p. 409). According to Ms. Student remained in full time because was in the process of opening two new classrooms and was awaiting final approval from the fire department before they could be opened. The witness testified that Parent was aware of the reason why Student could not start at in September because she spoke personally to the Parent about it and that Parent, in fact, was in touch with personally, awaiting Student’s start date. Student did begin attending in the mornings and at the end of the school day he was bussed from . Ms. testified that was a with smaller classrooms which would better suit Student because he could have more individualized attention. (Tr. p. 424). The witness testified that at the end of November 2010, Student stopped attending in the afternoons because of an incident in the classroom where with both the teachers and the children. At that time, the daycare director felt that it was no longer safe environment for Student and the other children. (Tr. p. 413 – 414). When asked if Student was expelled from replied "yes". (Tr. p. 422).

Ms. testified that she spoke with Parent about looking at a school that could deal with Student’s behavior, and mentioned to Parent The , a in Brooklyn. (Tr. p. 414).

was duly sworn, stated that she was alone in a room and had Student's IEP with her, and testified via telephone. (Tr. p. 431 – 432). Ms. is a special education teacher certified by the New York City Department of Education since 1994. The witness has Bachelor’s degree in elementary education and a Master’s degree in special education. Currently, Ms. is assigned to , which is a school for and some students on the . (Tr. p. 433).

For the 2011–2012 school year Ms. was assigned to teach the . The witness testified that her class is a class and that she had and a paraprofessional assigned to a student. Ms. testified that in September she believed she had either students in her class with an age range of 4 to 7 years old. (Tr. p. 437). At the beginning of the 2010– 2011 school year, one of her students was , in her class were , and of the students in her class were . Ms. described the reading levels in September of 2010 as, students at the reading level, students at the level and students at the grade level. (Tr. p. 438). Ms. described the class as having three different math groups:

students in the math level, students at the and the remainder of the students at the beginning of grade math level. (Tr. p. 440).

Ms. described a typical day in her class: a typical day would follow a routine with the children get off the bus; the children have breakfast in the cafeteria with all of the staff members and then line up and go upstairs to the fifth floor. Children use the restrooms, and go into the classroom, have a seat, unload their backpacks, put items in their individual cubbies and hang up their belongings. The students fill out a daily point sheet which is a point sheet, they plot themselves on a mood meter, they fill out a new point sheet whereafter they begin their morning meeting. (Tr. p. 441, p. 475). The witness described the daily point sheet as a that using points and using different levels and depending on how many points the student earns within a 10 day period. A student can start over on the same level or they're able to move up a level. There are four different levels in her classroom and this is used as an incentive to get students to make better life choices as there are privileges attached to each level. (Tr. p. 442). If the students earn 60 points and above they are allowed to participate in the emotional literacy program entitled "Thrilling Thursday" wherein the children are allowed to go to a separate location from the classroom and play different games that help them with emotions, and expressing themselves. (Tr. p. 443). Ms. went on to describe in further detail the points and rewards system. (Tr. p. 444 – 446). In order to teach independence, the students are each assigned a job for the week for example sweeper, meteorologist or a librarian. The witness described the main curriculum classes as reading, writing and math, and that generally, she does a mini lesson with the full group for the mini lesson and then breaks into smaller groups in order to apply the scale of the task. Tr. p. 451).

Ms. described the use of the in the classroom, a recorder for the listening center, and a total of six computers in the classroom. The witness described that at times, she uses academic intervention services (AIS). She described them as a kind of pullout, or, she might sit with one or two children in order to give them a particular skill to move them up. (Tr. p. 456 – 457). Ms. testified that each year during the months of September and October, they conduct assessments on all of the students including the a reading, writing, listening, phonics phonemic awareness assessment, and Everyday Math Unit Assessments, in addition to informal assessments that Ms. creates on her own. (Tr. p. 458). The witness testified that she spoke with every service providers on a daily basis because of the need to constantly update each other on successes, improvements or an area where a child is struggling. Ms. also described mainstreaming opportunities at the school. (Tr. p. 460). March 29, 2011 IEP for Implementation September 7, 2011.

Ms. testified that she reviewed the IEP (P’s Ex. Z) and that in her opinion, Student had similar needs and goals as the other children in her class during the 2011– 2012 school year. (Tr. p. 462). Based on her reading of the IEP, Ms. testified that Student is a who need to be shown what to do. (Tr. p. 465). The Student is of intelligence. In so far as , Student has difficulty relating to his peers and might often want his and might become if he is told no, or if told something he doesn't agree with. (Tr. p. 465). The witness testified as to how she would have implemented the goals listed on the IEP had Student appeared in her class at the beginning of the 2011-2012 school year. The witness discussed implementing goal found on P’s Ex. Z, as providing Student with positive behavior reinforces, giving Student opportunity to stop and think and the opportunity to earn verbal praise. (Tr. p. 463). Ms. testified that she could have implemented Student’s annual math goal, found on page 4, by getting Student to use classroom manipulatives as a resource because he the , a lot of repetition would be needed as well as placing Student with someone who could play a game with him. The goal would be measured by every day math units or checklists, through observation and while she was doing . (Tr. p. 467). For Student’s reading goal, Ms. testified that her curriculum includes word work or vocabulary building, that weekly assessments are performed, in addition to informal assessments with the teachers, and have Student decode and encode words. She uses the "word wall" during writers and readers workshop in addition to studying words every week for homework. (Tr. p. 468).

Ms. she would implement Student’s management needs, and development needs. (Tr. p. 469 – 470). Ms. testified as to how she would implement the behavior intervention plan (D's Ex. 21), by using MVP cards and by finding any opportunity, no matter how small, if she witnesses Student making a good life choices she would give him a "gotcha card", using a lot of verbal cues, a lot of reminders, perhaps even intrinsic rewards such as his own picture chart or stickers. (Tr. p. 471). For the 2011 – 2012 school year there were two other students in Ms. is class with BIPs, one student was a "runner" and the other BIP was for physical (Tr. p. 483).

The witness testified that all of students in her class received and that her school has . (Tr. p. 472, p.477). The witness believed that she could classify her classroom as a because "I am not a yeller. I give children the opportunity to show how they are intelligent. I believe the children are , and they just need opportunities to show it. Sometimes the actions that they display are bad, but they are good, and I try to send a message to them." (Tr. p. 478).

was duly sworn, testified that he was alone in a room that he had with him Parent's Exhibits R, U, X and K. (Tr. p. 501, p. 505). Mr. is a special education itinerant teacher (SEIT), he holds a Master’s degree in education, and he has been working as a SEIT for an agency called for the past six years (Tr. p. 506 – 507). Starting in January 2010, and continuing through the summer of 2011 Mr. was the SEIT working with Student. When Mr. began working with Student in January 2010, Student was attending and Mr. was working with Student at this school for 10 hours per week, two hours a day. (Tr. p. 508 – 509). The witness testified that's Student transferred to a different school on December 20 of 2010 because he was from the School. (Tr. p. 510).

Mr. testified that his role as a SEIT is to work one-on-one with the students to help them meet their IEP objectives throughout the school year. (Tr. p. 511). Mr. Marchena participated in Student's December 17, 2010 CSE meeting as a special education teacher. (Tr. p. 512, P's Ex. K). The witness testified that during this meeting there was a discussion with regard to Students SEIT services and that the recommendation of the CPSE was to increase the hours of the SEIT. The witness testified that the hours were increased because it appeared that Student was not making progress in certain areas. To the best of the witness' recollection, after this IEP meeting Student was attending an afterschool called , a school with a head start program, an afterschool program which Student attended. (Tr. p. 514).

The witness testified that Student had made some slight progress in his performance levels between April of 2010 and April of 2011, with the intervention of the . Although it helped a little, it was not sufficient progress for Student to be able to be placed in the mainstream setting. (Tr. p. 516). The SEIT noticed improvement in Student's attention span, some of his focus, like basic shapes, and that in April of 2011, Student basically did not have any reading level, his writing skills were very poor and that his math skills were perhaps a little below age appropriateness. (Tr. p. 517). In April of 2011, was presenting at a (Id.), however, in April of 2011, Student was a preschooler, and thus below . (Tr. p. 544). Mr. testified that he saw very little progress with regards to Students behavior between April of 2010 through April 2011, although perhaps less frequency. (Tr. p. 519). Mr. did not know whether the improvements he witnessed came as a result of the , but it was more due to the environment at , the slight improvement in behavior. (Tr. p. 522-523). Student was in attendance at from late December of 2010 until approximately August 5 of 2011, wherein Mr. provided 18 hours of SEIT services after the school day, not during the school day at the . (Id.) The witness testified that he would recommend, for September of 2011, a class for Student consisting of a small classroom due to his behavior issues of approximately or no more than students, with at least two adults in the classroom. (Tr. p. 525). Mr. testified that Parent had requested that he prepare a letter to help support a recommendation that Student continue at the . The witness did in fact write a letter, signed June 10, 2011. (P's Ex. U). Mr. testified that he visited the in order to familiarize himself with the school setting to see how Student was faring at the , and based upon his visit to the he believed it was a an appropriate placement for Student. (Tr. p. 530). The witness testified that he believes that Student needs a small classroom ratio where there is an additional adults in the instance if he should become abrupt to develop any type of , although not necessarily at the . (Tr. p. 531). The witness stated that he had never seen Student in a classroom, and therefore he did not know if it was appropriate however it may depend on who the other students are in the classroom. (Tr. p. 532). The witness testified that over the course of the summer of 2011, the Parent did not express any concerns to him with regard to Student’s program, because they never really spoke on the topic. Dr.

was duly sworn, testified that he was alone in the room, and testified via telephone. (Tr. p. 569). Dr. is the clinical director at the . He holds a Bachelor’s degree in psychology, a Master’s degree in psychology and a Doctoral degree in clinical psychology. He is a New York State licensed psychologist, has been a professor at the Department of Neurology at the State for the last 15 years, and has also been in private practice as a clinical for approximately 20 years. (Tr. p. 571). Prior to working with the the witness worked at on-site programs through . At his current position, the witness supervises the clinical staff including psychologists and social workers. He oversees the delivery of all clinical services as well as being responsible for and in office of regulations in the program. (Tr. p. 572).

The witness described the as a special education program wherein students must come to them through the CPSE, and be classified as a with a disability. The program, as well as the sister program the are both children's day treatment programs through the , therefore they are also reviewed by the office of , and the children who attend not only have some developmental delay, but also have some or in order to qualify as students. (Tr. p. 573). The for 5 to 21 year old children who are classified with an . (Tr. p. 574). In order to enter the program a student would have to be classified with an , and the CSE would have to agree that there was no appropriate program within the district special education options, and that the child would be classified as an NPS (non-public school) student. (Id.)

Dr. testified that he was familiar with Student since December of 2010, and also he is one of the few students that the witness has had on his caseload for . Dr. stated, as part of student intake, histories and evaluations are reviewed; in the case of Student he was described as " , .… The class observation had very specific statements about his being , ,". (Tr. p. 576). The witness testified that when Student began in December of 2010 he was placed in a very small classroom of students with teacher and assistant teacher, which was the only class of six existing at the because it was for children with more significant problems. (Tr. p. 580). Dr. himself provided twice a week individually mostly in a pullout session but occasionally in a push in session. (Tr. p. 581). Dr. worked with Student to try and get him to , and to develop some . (Tr. p. 582). The witness testified to the goals contained in Student’s December 17, 2010 IEP (P's Ex. K at p. 7) and how the school worked with Student to achieve these goals, and that Student was unable to meet the goals. (Tr. pp. 582 – 586).

Dr. testified that in December of 2010, Student presented academically as bright. He seemed to have a fund of knowledge, but getting Student to focus and use those skills was often difficult. (Tr. p. 587). The witness testified that there were times were Student would apparently be unable to do a certain task, and conversations with the Parent would reveal that in fact Student was able to accomplish these tasks. (Tr. p. 587). Student's ability to interact appropriately with adults was varied. And Student had even more difficulty interacting with his peers. (Id.). In December of 2010, Student presented emotionally as very morose. Often times of his age. Student also time, and he was very . He sometimes became . (Tr. p. 589). Dr. testified that Student did not exhibit these behaviors in the , but certainly situation. (Tr. p. 590).

The witness testified that when Student arrived at the in December of 2010, a comprehensive treatment plan including, a plan was developed. (Tr. p. 590, P's Ex. N). The witness explained that the entire treatment team was responsible for implementing the behavior support plan. (Tr. p. 591). Dr. testified that responded to the intervention plan to some degree, that his and over the school year Student made progress with his . (Tr. pp. 597 – 598). Dr. conducted a of Student during the 20102011 school year (P's Ex. P), on March 8, 2011 in anticipation for Student’s "turning five” CSE meeting. (Tr. p. 602). The witness described his conclusions and recommendations in this report. Student's scores in the area of came up very high, above the for his age in the majority of areas. (Tr. 603). These measurements were in the areas of . (Id.). The witness also summarized some of the content of the therapy sessions, which were concerning because of the degree of , and some issues surrounding , and that Student was on and in a very . (Tr. P. 604). The overall conclusion was that this child was still . (Id.).

Dr. testified that typically about of the students attending his program, go on to other programs. (Tr. pp. 611 – 612). In order to qualify at the School (K – 21) a student must have an IQ higher than their primary classification must be one of and they must exhibit very or . (Tr. p. 613). The witness attended Student's March 29, 2011 IEP meeting, the initial meeting for in the following school year, at the invitation of Parent, in order to give information about Students functioning in preschool and to help with choosing an appropriate placement. (Tr. p. 611). The witness testified that he did not agree with the recommendation of a staffing ratio in a District program.. (Tr. p. 614). The witness testified that he did not agree with this placement because he felt Student needed a more intensive day treatment program, that his somewhat but he was still . Therefore he felt a classroom would not be for Student, and would not have been therapeutic resources that a program like would have, or another teaching a program with is a psychiatrist available and more psychologists and social workers. (Id.) Dr. testified that Parent did not agree with the recommended program (Tr. p. 619).

Dr. testified that Student attended school until the end of the 2010-2011 school year in June. In June of 2011, Student presented academically as making slow progress. He often seemed resistant to doing things, even though Parent would report that he was doing some of the same activities at home. In June 2011, Student presented socially as making slow progress with the exception that had decreased. Student was spending more time with in the classroom, not . (Tr. p. 621). Student's interaction with peers , but it only decreased due to very close supervision. (Tr. p. 622). Dr. testified that he felt that overall Student had made progress in the program due to the very high degree of individual at attention, a very , and . (Id.). Dr. testified that he believes that appropriate staffing ratio for would be somewhere between to students, but no more, and that the is an for Student. (Tr. P. 628). The is appropriate for Student because it offers a small class placement with similar students and that he can receive an appropriate education from an academic perspective. The witness testified that he believed that the goal contained in Student’s March 29, 2011 IEP, was not appropriate for Student because it seemed like the type of goal that a child who has a significant speech or intellectual deficit would have and that is not Student's problem. (Tr. 631).

The witness testified that Student’s placement in a class for the 2011– 2012 school year was appropriate only by default, further explaining that Student should be in a class if an appropriate class was available. (Tr. pp. 662 – 663). When asked if Student would be able to appropriately interact the general education population, Dr. testified that he would be of such an interaction because currently, even within a very small setting, in a , Student has difficulty with that type of interaction and because of Student's tendency to become either in some way sometimes . (Tr. pp. 673 – 674).

was duly sworn, testified that he was alone in a room and had no other documents before him besides the disclosure Exhibits. (Tr. p. 684 – 685). Mr. has a Bachelors degree in education with a concentration in adaptive physical education, and a Master’s degree in education. He is currently licensed in special education working with children with , birth to grade (Tr. p. 688 – 689). The witness is an educational supervisor at the . In this role, the witness reviews all of the IEP's of the students in his program, works directly with the teaching staff in developing curriculum, attempts to visit each and every of his students on a daily basis, and provides additional support to any of his classroom staff when a child is having great difficulty being managed in the classroom. (Tr. p. 685 – 687).

Mr. is familiar with Student because he was placed in one of the classrooms that he supervised in December of 2010. The witness testified that he believed that student came to the because student was not doing well in his previous programs and had, he believed, been removed from one or two of them and needed a more –based curriculum. (Tr. p. 692). The witness testified as to a typical day in the program. (Tr. p. 693 – 696).

The witness testified that at the there were weekly team meetings to discuss all the children coupled with comprehensive treatment plan meetings every three months to work on a set of goals for a specific student. At these meetings, Student’s progress was discussed and the consensus of the team was that his progress varied but Student often times either maintain the level he was at, or he would have a slight decrease. (Tr. p. 700).

Mr. testified that in June of 2011, student presented academically as having made very little progress from December. The witness also testified that student made no progress emotionally and that his stayed basically the same. (Tr. p. 700 – 701). The witness also believe that Student was starting to decline and his from December 2010 until June 2011. (Tr. p. 718). Overall, Mr. testified that student made "some progress" at the Center in 2010 – 2011. (Tr. p. 702 at 9 – 13).

Meeting

Mr. testified that he participated in students turning five meeting in March of 2011 in order to speak on Student’s current functional level. (Tr. p. 702). The witness testified that he agreed with the classification of ED. The witness believed that the goals on his IEP were appropriate for student. (Tr. p. 714). However, Mr. did not agree with the districts staffing recommendation of for two reasons. The witness stated that he had observed many District programs throughout all of and the size alone with relation to matters staffing in the room with would create an environment that would cause student to have far more frequent disruptions in the classroom. (Tr. p. 705). Also the curriculum in a " would not match Student’s needs, based upon how the " 's" have been constructed that the peers would not be a match. (Id.) Mr. did not agree with the size of the classroom because, as he stated, "looking at the class-size that are programmed with a [students] and having three adults in the room, there were times when you weren’t even quick enough to get to Student to prevent a moment from happening. So to increase the number of kids and decreased the staffing, would be of concern in the terms of his safety as well as the safety of the other children that would be in the classroom." (Id.). The witness further testified that the district schools he had visited did not provide a psychiatrist on staff or someone who would be there who would be able to track a child in the event of the need for medication. (Tr. p. 707).

Mr. testified that the incorporates an individual working with a child as a play therapist or counselor and working with the child individually or in a small group, depending on the current concerns and specific to a child's needs. (Tr. p. 709). The witness testified that he has witnessed District programs and the guidance counselor has a much larger caseload, doesn't sit and meet with the children on a regular base regular consistent basis. (Tr. p. 710).

was duly sworn, testified that she was alone in a room and that she had the disclosure documents with her. (Tr. p. 732 – 734). Ms. was Student’s special education teacher in the 2010-2011 school year. Ms. has a Bachelor’s degree in Sociology, a Master’s degree in education in literacy, and a dual Masters of education in early childhood education in both regular education and special education. (Tr. p. 735). The witness has been employed as a teacher at the since 2001. (Id.).

The witness testified that student first entered her classroom in December of 2010 because, she believed there was "some sort of with the other school. I believe he was removed from that school". (Tr. p. 737). The staff ratio in her class in December of 2010, was students with one teacher, one assistant, and a aide, so there were students one teacher and two assistants. In her classroom, Student was able to receive one – to – one instructional time on a daily basis. (Tr. p. 740). At the time in December of 2010, student presented academically with what appeared to be significant learning delays. (Tr. p. 742). In December 2010, Student was unable to appropriately interact with his peers, and was only able to appropriately interact with a few preferred adults. (Tr. p. 743). Ms. testified that transitions were very difficult for student in December of 2010, and that student exhibited including . (Tr. p. 744).

Ms. testified as to the annual goals contained in student's December 17, 2010 IEP, and stated that he was unable to meet the goals contained on pages six, seven and eight, (Tr. p. 754 – 758), and that he had minimal mastery of those goals. (Tr. p. 780). However, Ms. testified that student did improve his social skills during the 2010 – 2011 school year. (Tr. pp. 757 – 758). Ms. testified that in her educational update dated March 1, 2011 (P's Ex. O) she made a recommendation for Student’s kindergarten program of a small class setting and a highly structured environment. (Tr. p. 761).

Meeting

The witness testified that she participated in Student's turning five IEP meeting on March 29, 2011 in the role of a special education teacher. (Tr. p. 763). Ms. did not recall if she developed any of the goals contained in students IEP, nor did she recall discussion of a staffing ratio, or a program setting recommended for student. (Tr. p. 767). Ms. testified that, in her opinion a classroom ratio would have been an inappropriate placement for September of 2011, because of the size of the class, and the learning delays of Student, and the behavior of Student. Ms. felt that Student needed more support to deal with his behaviors, and in her opinion a District specialized school setting was not appropriate for . (Tr. p. 769). The witness testified that she believed student needed a more atmosphere such as the offers. (Tr. p. 770). The witness did not know which supports were available at the that were not available in a district specialized school, nor has she never visited a District classroom. (Id.). However, the witness believed that the was an appropriate placement for student, (Tr. p. 771), and that student was ready to enter kindergarten in September of 2011.

was duly sworn and testified at the hearing. (Tr. p. 794).2 Ms. is the Parent of Student, a single mother of two. Parent testified that student was initially referred to the CPSE in 2009 because he was having violent at child care center.

Records show that Student attended for the entire 2009-2010 school year. 2009-2010 School Year

Ms. testified that for the 2009–2010 school year student first attended , until he was kicked out of that school, then sent to and then from there to the . (Tr. p. 796). While at , there were " – some odd kids" in student's class. (Tr. p. 798). Parent testified that she spoke with Student's teachers, and principal regarding her sons progress, and he did not do very well because the school did not have the capacity or ability to give Student the counseling he needed and the classroom size was too large. (Id.). During the school year student was including . (Tr. p. 799) The witness testified that she spoke with ], a social worker at who, suggested . 2010-2011 School Year

Student returned in September of 2010, but was . (Tr. p. 801). At this time, student began attending on the recommendation of who stated that other students had gone to , and made progress there. (Tr. pp. 801 – 802) Ms. testified that while her son was at he did not receive the recommended related services of a SEIT. (Tr. p. 803). When asked if she knew why the SEIT wasn't provided at , Ms. testified it was because Student was not adapting or adjusting at and there was a problem immediately. (Tr. p. 803). Parent further testified that she was attempting to figure out where student should attend, that she had to get him into the right school, and that is a school for and her son has a . (Id.).

While attending , student was with both the teachers and the students. (Tr. p. 805). Ms. testified that she spoke to the and probably three other people at the school, all of whom informed her that Student did not belong at the school. (Tr. p. 805). Ms. testified that Student only remained to until December of 2010, because "they really didn't want him there and they kicked him out. He was too much for them". (Tr. p. 806). After leaving , Student entered the . The witness testified that had mentioned the , but Parent contacted the herself. Ms. , at the District, to remove student from and place him in the . (Tr. p. 807). At the , student was receiving SEIT services and services. The SEIT services were received at an afterschool program at the , which is also a church. (Tr. pp. 808 – 809). Ms. testified that Student remained at the for the 2010–2011 school year, and felt that she had finally found the right placement for her son. (Id.). Ms. testified that an to address was developed and that she believed it was implemented. Parent further testified that she saw progress over all domains, that student was able to explain to her that he could settle things with his words and not his actions, that student was actually happy and not as he had been before. (Tr. p. 810). Ms. testified that she spoke with a representative of the at least three times a week because she wants to know what kind of progress, if any her son was making and what was going on with him. (Tr. p. 813).

Ms. testified that at the time of the , Student was sometimes , that he did not really have any friends, that he was sometimes able to with adults, and that he was unable to play with other children his own age. At that time, in the spring of 2011, Parent testified that on a sporadic basis. (Tr. p. 820). Ms. testified that she attended the March 29, 2011 IEP meeting wherein acted as the district representative. Ms. testified that she did not agree with the program recommendation of the District for a District class, because she felt that her son was . Parent felt that there had been so many changes throughout the time Student has been at school and so many incorrect recommendations and that further changes would derail the little bit of progress Student had already made and the possibility for further progress. (Tr. p. 825 – 826). Parent testified that the ratio was “just too much for Student because they had taken him out of the class of , placed them into a class of , and then even a class of students did not work”. Parent believed that perhaps smaller steps, for example “from a class of six students perhaps you should go to a class of eight students and then maybe later students would be appropriate in order to make slow steady progress.” (Tr. pp. 831 – 832). The witness further testified that no one present in the room agreed with Ms. 's recommended placement. Placement

Ms. testified that she received final notice of recommendation for the 2011– 2012 school year in the summer of 2011. (Tr. p. 827). The witness testified that she telephoned the recommended placement school, and requested to see the class, whereupon she was informed that there was no in that school, that start at the grade. (Tr. p. 828). Parent used a website called inside schools.org to learn information about the school and the telephone number of the school called the . (Tr. p. 854). Parent spoke with , whose name is listed under contact information on P's Ex. 20, regarding the . Ms. testified that she was attempting to get the district to defer to CBST and reverse the District placement determination. (Tr. pp. 855 – 856). Ms. testified that she mentioned to Ms. about her telephone conversation to the school but received no explanation as to why she had been told there was no at the school, nor, according to this witness did Ms. confirm that there indeed was a kindergarten class. (Tr. p. 856). Parent testified that she then contacted Ms. and requested another meeting to see if she could try and get Ms. to change her mind and to find out who, if anyone else, she needed to contact. The witness testified that a second meeting took place between herself and Ms. wherein she discussed concerns regarding her sons classification as , and concerns regarding the removal of her son from his current environment at the . (Tr. p. 830). Ms. testified that at that time there was still no IEP presented to her at that meeting. (Tr. p. 831).

Parent testified that she was against a " – " program because the District made the recommendation and determination after observing her son for only one hour. Ms. explained – program to Parent, and Parent stated that she would look at the schools.

POSITION OF THE PARTIES

Parent’s Position

The District failed to provide a Free and Appropriate Public Education (FAPE) for the 2009-2010 school year because it failed develop a ( ) and to provide a ) on Student’s IEP.

The District failed to provide FAPE for the 2010-2011 school year, specifically during the period from December 2010, due to the District’s failure to provide a placement in September, and failure to develop FBA and a BIP.

The District failed to provide FAPE for Student in the 2011-2012 School year because it failed to develop an Individualized Education Program (“IEP”) which included appropriate special education services and supports designed to meet Student’s unique needs, and because the District failed to make an appropriate placement for Student.

Parent requests a full set of independent evaluations, that the CSE reconvene and develop an appropriate IEP for student including meaningful and measurable goals, the recommendation of appropriate special education services (including individual counseling and , parent training and , and special education transportation) to allow student to gain and educational benefit. That a (" ”) be conducted with parent participation, and a behavioral intervention plan (" ") be developed to address student's behavioral needs. That student's SEIT services shall continue for the 2011 – 2012 school year. That students placement at the shall continue for the 2011-2012 school year with the student placed in the kindergarten program. Parent training shall be included in the Students’ IEP. Corrective services for failure to develop a proper IEP for the 2009 -2010 school year and the beginning of the 2010 – 2011 school year, to be determined by the IHO. District’s Position

The district provided student with a FAPE for all of the three school years at issue. The District maintains that in all three years at issue, the CPSE review team was validly composed, and recommended an appropriate program premised on sufficient evaluations and observations. The recommended school for the 2011–2012 school year was appropriate because Student’s age, academic and social functioning levels would have been similar to the other students assigned to the recommended special class. The district also believes that Parent’s placement of the child is inappropriate because, among other things, Parent placed the child in his second year of preschool at the . And finally, that the equities do not favor parent's request for tuition.

The district also asserts that parent's request for a full set of independent evaluations, along with the claim for the need for parent training to be included in student's IEP have been abandoned by parent due to the failure to provide any testimony or evidence regarding these issues. The District requests that this hearing officer deny the Parent's claims in their entirety.

APPLICABLE STANDARDS

The two purposes of the Individuals with Disabilities Education Act (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 unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[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]).

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 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 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 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free 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, 2007 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 (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 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]). Also, a FAPE must be available to an eligible student "who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade" (34 C.F.R. § 300.101[c][1]; 8 NYCRR 200.4[c][5]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 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 C.F.R. § 300.320[a][2];

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

FINDINGS OF FACT AND LAW

Because this matter deals with three school years, I will address each year individually. The 2009 – 2010 School Year

On July 24, 2009, The coordinator Ms. , referred student to the Committee on Preschool Education ("CPSE”) for an initial evaluation. In August of 2009, Theracare evaluated Student and prepared evaluations for the CPSE. ( D's Ex. 14). The CPSE met on October 1, 2009, developed an IEP for Student which classified him as with a disability with the recommendation of SEIT services (10 hours) and the related services of counseling for one individual session per week one hour per session. (P's Ex. H). Student was to continue attending the general education day care program at for the 2009 – 2010 school year (Tr. pp. 42, 47). Point One of Provision of FAPE: the District Complies with the Procedural Requirements Set Forth in the IDEA

A review of the October 1, 2009 IEP (P's Ex. H) indicates that the CPSE review team included Parent, , the CPSC administrator, Student's teacher (signed in as a special education teacher) and , a coordinator. No general education teacher, nor school psychologists nor additional parent member was present at this meeting. There was no testimony as to whether or not Parent consented to the exclusion of a Parent Member. A CPSE team must include all the legally mandated members as required under the IDEA and the New York state regulations. 20 USCS §1414 (d) (I) (B); 8 NYCRR §200.3 (a).

There is no testimony indicating that Parent was not properly notified about this meeting. There is no testimony that Parent objected to the members present at this meeting, nor any testimony that Parent felt that she was impeded, in any way, from participation in the decision making process in this meeting. Indeed this argument has never been raised by Parent. The request for a Due Process Hearing ( D’s Ex. 1¶3) alleges that the IEP did not include a staffing ratio or placement recommendation, nor a ( ).

Even if the non-attendance of the regular education teacher, in this circumstance, did not comport with the requirements of federal and State regulations (8 NYCRR 200.3[a][1][ii-iii]; see 34 C.F.R § 300.321 [a] [2-3]; I am constrained by Federal and State regulations from finding that a procedural violation rose to the level of a denial of a FAPE unless the procedural inadequacy impeded the student's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii].

I find that the evidence does not demonstrate that the procedural inadequacy impeded the Student's right to a FAPE, significantly impeded Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefits. Therefore, I find insufficient evidence to conclude that the failure to include a regular education teacher who would implement the student's 2009-1010 IEP at the October 1 2009 CSE meeting rose to the level of a denial of a FAPE (see 20 U.S.C. § 1415[fJ[3][E][ii]; 34 C.F.R. § 300.513[a] [2]; 8 NYCRR 200.5[j]

[4] [ii]; see also Application of the Dep't of Educ., Appeal No. 10-073; Application of the Bd. of Educ., Appeal No. 10-022; Application of a Student with a Disability, Appeal No. 09-137. Staffing ratio, Placement recommendation,

Ms. testified that although the team agreed that Student would continue to attend , it was not written into the IEP as a placement because it was a regular classroom, and Student was not being placed in special education school. (Tr. p. 46 – 47). Similarly, Ms. testified that a staffing ratio is only written into an IEP if the student is recommended for special education class, and student was not recommended for special education class at that time (Tr. P. 49). I find Ms. 's testimony credible and therefore find insufficient evidence to conclude that these assertions rose to the level of a denial of FAPE.

In addition to Federal requirements, State regulations require that the CSE or CPSE include a ( ) for student whose behavior impedes his or her learning or that of others, as necessary to ascertain the factors which contribute to suspected disabilities (8 NYCRR 200.4[b] [1] [v]). Moreover a CSE "shall consider the development of a behavioral intervention plan" when considering more restrictive programs or placement as a result of the students behavior. (8NYCRR 200.22 [b]). In the instant matter, CPSC did not consider a more restrictive program for student for the 2009 –2010 school year, and the program was still a general education program. Furthermore Ms. testified that she felt that the services of 10 hours of SEIT coupled with one session of per week would sufficiently address . (Tr. pp. 140 – 141). Therefore, I find that the October 1, 2009 IEP was not procedurally deficient. Point Two of the Provision of FAPE: The IEP Developed is Reasonably Calculated to Enable Student to Receive Educational Benefits

Ms. testified that this CPSE team reviewed and relied on evaluations provided by (P's Ex.s B-G), which included a social history; ; classroom observation; educational evaluation: and a . (Tr. p. 43). There is no testimony showing disagreement with the services recommended on the IEP, nor any testimony stating that the goals and/or the placement of student at were inappropriate. The IEP reviewed appropriate and sufficient documents and material in recommending the special education program for student for the 2009-2010 year such that it was reasonably calculated to enable student to receive educational benefits. I therefore I find that student was not denied FAPE for the 2009-2010 school year. 2010-2011 School Year

During the summer of 2010, Ms. requested, via letter, that the CPSE reconvene. (Tr. p. 407, D's Ex. 14 – 19, 14 – 20). These letters indicated that Student was having and very which negatively impacted his ability to learn and function in the classroom. (Id.). Consequently, the CPSE reconvened on July 27, 2010 for an IEP meeting (D’s Ex. 3). Additional meetings were held on December 6, 2010 and December 17, 2010. Point One of Provision of FAPE: the District Complies with the Procedural Requirements Set Forth in the IDEA

Although parent was not present at the July 27, 2010 meeting, Ms. testified that she sent parent a meeting notice, that Ms. notified Parent of the IEP meeting prior to the meeting and, that at the meeting, she called both of Parent's telephone numbers wherein one was not working, and she left a message on the other telephone number. (Tr. p. 64, D's Ex. 3 at p.2). Parent did not dispute this testimony.

The District did not perform a , nor develop a (at any of the three meetings). In addition to Federal requirements, State regulations require that the CSE or CPSE include a ( ) for student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, factors which contribute to suspected disabilities (8 NYCRR 200.4[b] [1] [v]). Moreover a CSE "shall consider the development of a " when considering more restrictive programs or placement as a result of the students behavior. (8NYCRR 200.22 [b]). In the instant matter, a review of Student’s July 27, 2010, IEP indicates that “due to the negative social emotional development that has been observed in the class, it is recommended that Student be placed in a Center Based structure for part of his regular school day conjunction with the current services of SEIT and (D's Ex. 3 p.4). Just below that statement, the IEP states "a is required" and there is a box for yes, and a box to be checked for no. (Id.). Neither box is checked in this instance.

The recommendation of this IEP was to terminate this SEIT and initiate a special class with related services of counseling to ask 30 X1. (Id. At 2). At that time, the CPSE recommended a classroom at . Ms. described as a " ", and indicated that student would receive his SEIT services after school. (Tr. p. 408) Ms. testified that the new program recommendation was for a more restrictive environment. (Tr. pp. 78 – 79). Ms. further testified that the recommendation was more restrictive than the recommendation from the previous IEP because of the input of Ms. and the report from the SEIT provider. (Tr. p. 66). The report of the SEIT Mr. , indicated that Student “often times expressed anger and frustration to his SEIT, classroom teachers and peers. He has often acted but . A behavioral chart has been tried as well as a and positive reinforcement but at this time he requires more special education intervention. At that time, Parent agreed with the placement at for the 2010-2011 school year.

I find that the testimony and evidence show that Student was entering into a more restrictive program due to his , and their .A should have been performed and a implement for Student. This point is made clearer due to the fact that Student was asked to leave , possibly expelled, in November of 2010, and then asked to leave in December of 2010, due to . Failure to include a BIP may very well have led to a depravation of Educational benefit to Student as he was shifted through three programs in the 2010-2011 school year. Point Two of the Provision of FAPE: The IEP Developed is Reasonably Calculated to Enable Student to Receive Educational Benefits

As stated above, because of the failure to provide a BIP, the District did not “generate an IEP which accurately reflects the results of evaluations to identify Student’s needs. However, the program recommendation and placement at Comprehensive Kids, does seem, at first blush, “likely to produce progress, not regression” Cerra 427 F.3d.

186. However, the District did not actually have a seat for Student at in September of 2010. (Tr. pp. 410,844-845), and therefore placed Student back in until October 21, 2010, when Student began attending . Parent agreed with the recommended placement at (Tr. pp. 424, 850). However, due to Student’s increase in behavior, it became clear that this was not the correct placement for Student. The CPSE met again in December of 2010, and granted permission for Student to attend the Center, for the remainder of the 2010-2011 school year. Parent was very satisfied with this placement (Tr. pp. 809,810). December 6, 2010 IEP and December 17, 2010 IEP Parent asserts that these IEP’s were procedurally deficient because no teachers were present (D’s Ex. 1 p.5.) The December 6, 2011 meeting was held, at Parent’s request, to initiate services for Student at the , Parent’s choice of Schools. The December 17, 2010 meeting was to add an additional 10 hours of SEIT services for Student. While it is true that no teachers were present at these meetings, I find that the evidence does not demonstrate that the procedural inadequacy impeded the student's right to a FAPE, significantly impeded Parent’s opportunity to participate in the decisionmaking process regarding the provision of a FAPE, or caused a deprivation of educational benefits. Therefore, I find insufficient evidence to conclude that the failure to include teachers at these meetings CSE meeting rose to the level of a denial of a FAPE (see 20 U.S.C. § 1415[fJ[3][E][ii]; 34 C.F.R. § 300.513[a] [2]; 8 NYCRR 200.5[j] [4] [ii]; see also Application of the Dep't of Educ., Appeal No. 10-073; Application of the Bd. of Educ., Appeal No. 10-022; Application of a Student with a Disability, Appeal No. 09-137.

Because the District failed to Develop a FBA and BIP for the start of the 20102011 school year, and the District did not actually have a seat for Student at the proposed placement, I find that the District failed to provide FAPE for the period of the Start of School on September 7, 2010 until his transfer into on October 21, 2010. 2011-2012 School Year

On March 29, 2011 an IEP was developed (turning five meeting) for the 20112012 school year. (D’s Ex. 2). Point One of Provision of FAPE: the District Complies with the Procedural Requirements Set Forth in the IDEA

There are no allegations the review team was invalidly composed. Present at the meeting were parent, , district representative and school psychologist, Mr. , supervisor, Dr. clinical director and psychologist, and , special education preschool teacher. There seems to be conflicting testimony as to who developed the goals for the March 29, 2011 IEP. Ms. testified that the goals were developed by Student’s classroom teacher Ms. . (Tr. p. 207 – 208) Ms. indicated that she did not recall developing the goals the IEP. (Tr. p. 765). Dr. testified that the goals on the March 2011 IEP were generated by Ms. (Tr. p. 630). I find that conflicting testimony to be immaterial, as goals were indeed drafted and it was agreed by Mr. that the goals were appropriate. (Tr. p. 714). Ms. , testified that no one at the meeting disagreed with the goals (Tr. p. 208). Point Two of the Provision of FAPE: The IEP Developed is Reasonably Calculated to Enable Student to Receive Educational Benefits

As noted above, an appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][1], [a][2], [a][4]; 8 NYCRR 200.4[d][2][i], [2][iii], [2][v]; Tarlowe, 2008 WL 2736027, at *6 ).

The CSE is required to develop an IEP that accurately reflects the student's special education needs (34 C.F.R. § 300.306[c][2]; 8 NYCRR 200.4[d][2]). Incumbent with that duty is the mandate that the IEP "shall report the present levels of academic achievement and the functional performance and indicate the individual needs of the student." (8 NYCRR 200.4[d][2]; see 20 U.S.C. § 1414[d][1][A][i][I]; 34 C.F.R. § 300.320 [a][1]). Moreover, a CSE is required to "consider" information about the student provided to, or by, the parents (8 NYCRR 200.4[f][2][ii]; Application of a Student with a Disability, Appeal No. 10-095; Application of a Child with a Disability, Appeal No. 07139). Present Levels of Performance

With respect to the Student's present levels of performance, the March 29, 2011 IEP clearly articulated Student’s strengths and weaknesses. (P’s Ex Z p. 1-2). Testimony shows that prior to the meeting Ms. reviewed updates and special education teacher, the twelve month rationale and the created by (Tr. pp. 172-173), were considered in the development of the IEP. There is no testimony that there were any objections to the present performance levels that were developed at the CSE meeting, with the exception of Parent, who testified that Student often exhibited more academic skills at home than at school.

With regard to the student's social needs, the March 29, 2011 IEP on page 2, noted that Student’s “relationships with his peers are almost always provoking in nature. His relationships with adults are not always appropriate. He is described as often being . He is ." Also, "the parent is concerned with Student's , due to Student’s in class he requires adult support. He should also be monitored closely at all times. (Id.). Page one of the IEP notes states "… However his . And further, "he requires one:one adult support in order to help them and to ". Page 1 of this IEP also notes that Student's parent is concerned with his ."

In conclusion, I determine that the evidence demonstrates that the March 29, 2011 IEP accurately reflected the Student's present levels of performance and areas of as described in the supporting documents previously mentioned, and the classroom observation, (see O'Toole v. Olathe Dist. Sch. Unified Sch. Dist. 144 F.3d 692, 703-04 [10th Cir. 1998]; Application of the Dep't of Educ., Appeal No. 07-120; Application of the Bd. of Educ., Appeal No. 04-031).

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability and to enable the student to be involved in and make progress in the general education curriculum (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3]). The March 29, 2011 IEP included a total of 3 goals for kindergarten, including: a social/emotional goal, a math and a reading goal.. (P’s Ex. Z pp.3-4)). Each goal contained a specific evaluation criterion, evaluation procedure, and an evaluation schedule (id.; see 8 NYCRR 200.4[d][2][iii][b]). Appropriateness of the District's Recommended Program and Placement The District recommended a special class with the related services of the recommended school was identified as for the 2011 – 2012 school year. It is clear from the testimony and the evidence that a classroom setting is not appropriate for Student, nor is it reasonably calculated to enable the Student to receive educational benefits.

As will be discussed more fully below, testimony showed that Student struggled even in a setting during the 2010 – 2011 school year. Mr. , the SEIT, testified that Student made very little progress with behavior. (Tr. p. 519). Dr. s update, dated March 8, 2011, was reviewed and considered in the creation of the March 29, 2011 IEP. This report clearly outlines Student’s background with issues and makes recommendations. (P's Ex P-1)

The update explained that Student was asked to leave general education day care due to behavioral difficulties, and then was asked to leave due to his being and . He was reported to and reportedly talked about . (Id.). The r Report Form (CTRF), completed by Student's teachers on March 8, 2011 rated him as being in the clinical range (greater than ) , (e.g. , ) (P's P –3). In summary "the current assessment indicates that despite , Student's indicate , , …. He continues to need a small, structured classroom with a in order to continue making progress. His , significantly interfere with his . He and and . Although Student continues to be due to implementation of his behavioral management plan. (P's Ex. P –4). The March 29, 2011 IEP states that "he requires a adult support in order to help them stay focused on task and accurate complete activities". (P’s Ex. A-1) And "reportedly due to . He should be monitored closely at all times”, “Student's relationships with his peers are almost always provoking in nature". (Id.).

At was enrolled in a classroom, and the testimony and evidence has shown that placement was not appropriate for Student. All of the participants at the March 29, 2011 IEP meeting, except Ms. , believed that the student should stay in a very small structured classroom (Tr. p. 182).

Ms. testified that she observed Student for approximately 2 hours and that during that time, Student did not exhibit any . (Tr. p. 187). As much as I might find Mr. credible, of all the reports, documents and testimony, indicate that with and often behaviors.

Ms. , who testified that she believed that have been placed in her class, testified that her class would have been appropriate for Student because of his age, academic and social functioning levels. (Tr. p. 462, see above). I am not persuaded by this testimony that the program and recommended placement were appropriate for Student as they would not be able to address his , and provide for him the individual attention and support needed to ensure his of other students. A recent ruling allows that the effect on other students may be considered in making a placement. J.P. by D.P. and I.P. v. New York City Dep't of Educ., 112 LRP 6150 (E.D.N.Y.) 02/02/12). “A factor in determining LRE is the effect the student might have on other students in class. In this case, the student . If he did not . He also ”.

Based upon the foregoing, I conclude that the evidence established that the District's recommended educational program was not reasonably calculated to enable the student to receive educational benefits for the 2011-2012 school year.

For all of the above mentioned reasons, I find that the district failed to provide FAPE for the 2011 – 2012 school year. Appropriateness of the

There seems little doubt that Parent is very happy with the , and wishes her son to continue at the as an appropriate placement. The testimony does not support this belief. As explained above, Student should be in a small class size, less than students. However, it is not clear the is the appropriate place for Student. Testimony shows that Student has made very little, if any progress, and did not meet any of the stated goals on the December 17, 2010 IEP for the 2010-2011 school year.

Mr. , Student’s SEIT from January of 2010 through the summer of 2011 testified that Student made “slight” progress on performance levels at the (Tr. p. 516). Further, that Student made very little progress with behavior (Tr. p. 519). Dr. testified that Student made "little" improvement academically and socially. (Tr.p. 621 – 622). He also stated that Student responded to the to "some degree" (Tr. pp. 597 – 598). Dr. testified at Student exhibited aggression any time he was in a group situation. (Tr. P. 590) Dr.

also testified that student was unable to meet any of his goals on the December 17, 2010 IEP. (Tr. pp. 582 – 586). Mr. , the educational supervisor at the testified that Student often maintained or would have a , and that there was very little academic progress, and no progress emotionally; Student’s was the same. (Tr. pp. 700 – 701).

, special education teacher also testified that student was unable to meet the goals stated in the December 17, 2010 IEP. (Tr. pp. 754 – 758). Ms. testified that student did improve his social skills during his time at the league 2010 2011 school year. (Tr. p. 757). Parent was the only witness to testify that she felt student had made progress in all domains. (Tr. p. 810). But even parent had to admit that in the spring of 2011 student was still exhibiting behaviors on a sporadic basis. (Tr. p. 820).

By making the statements, I do not intend to overrule my previous conclusion that Student received FAPE for the 2010 – 2011 school year (excluding September 7, 2010 through October 21, 2010, wherein I ruled he did not receive FAPE). I entered into this discussion to outline why I will not specifically order Student's placement at continue, as is requested by Parent.

CONCLUSION

Wherefore, for all of the above-mentioned reasons, I find that the district provided FAPE in the 2009-2010 school year, that the district provided FAPE in the 2010 – 2011 school year, except failed provide to provide FAPE from September 7 2010 through October 21. 2010, and, although the District worked diligently for Student, the District failed to provide FAPE for the 2011 – 2012 school year.

ORDER

It is ORDERED that:

A full set of evaluations, by qualified providers (Not Independent Education Evaluations) including and shall be conducted within 15 school days from the date of this decision;

The CSE is to reconvene within ten days (not school days) of the date of said evaluations, to develop an appropriate IEP for Student including special education services, parent training and special education transportation;

A is to be conducted and a developed.

The matter then is to be immediately deferred to the CBST for appropriate placement; Parent shall be offered not less than two placements, within five school days of the CSE meeting. this Order does not preclude placement the , if deemed appropriate; Student shall remain in his pendency placement until such a time as the CBST offers placement as Ordered above, except the District and the Parent are free to agree on an alternate pendency placement in the interim, in writing, if the parties so desire.

I decline to award “corrective services” for District’s failure to provide FAPE for approximately 6 weeks in the fall of 2010. Dated: February 22, 2012

Impartial Hearing Officer

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

PARENT DESCRIPTION DATE PAGES

A Referral Letter 7/24/09 2 pages B Evaluation 8/19/09 3 pages C Evaluation 8/20/09 2 pages D Evaluation 8/20/09 4 pages E Classroom Observation 8/20/09 1 page F Educational Evaluation 8/20/09 4 pages G Evaluation 8/26/09 4 pages H IEP 10/01/09 13 pages I Final Notice of Recommendation 10/01/09 1 page J IEP 120/6/10 9 pages K IEP 12/17/10 12 pages L Final Notice of Recommendation 12/17/10 1 page M Authorization of IEP Change 12/17/10 1 page N Plan 12/20/10 4 pages O Educational Update 03/01/11 5 pages P Update 03/08/11 5 pages Q 12-Month Rationale 03/08/11 2 pages R Quarterly Progress Report04/15/11 2 pages S Final Notice of Recommendation 05/27/11 1 page T Updated Behavioral Support Plan 06/10/11 3 pages U Letter from 06/10/11 1 page V Update 06/17/11 4 pages W Fax Coversheet 06/20/11 1 page X Year End Progress Report 06/24/11 2 pages Y Fax Coversheet & Confirm 07/05/11 1 page Z IEP 03/29/11 10 pages AA Request for Due Process Hearing 08/03/11 6 pages

DEPARTMENT OF EDUCATION DESCRIPTION DATE PAGES

1 Due Process Complaint 08/03/11 7 pages 2 IEP 3/29/11 8 pages 3 IEP 07/27/10 11 pages 4 IEP 12/17/10 12 pages 5 IEP 12/6/10 5 pages 6 Notice Verification of IEP Change 07/27/10 1 page 7 Authorization of IEP Change 12/6/10 1 page 8 Final Notice of Recommendation 12/17/10 1 page 9 Notice of Modification of IEP 12/17/10 1 page 10 Notice 12/14/10 1 page 11 Progress Report from 02/2011 3 pages 12 Progress Report 07/09/10 2 pages 13 Authorization of Other IEP Change 12/06/10 1 page 14 Evaluations 08/20/09 31 pages 15 Due Process Response 08/09/11 3 pages 16 Classroom observation 03/2011 6 pages 17 IEP notes 04/11/11 1 page 18 Parent member letter 04/11/11 1 page 19 Notice of IEP meeting 04/04/11 3 pages 20 FNR 05/22/11 1 page 21 FBA 01/04/11 3 pages

HEARING OFFICERS EXHIBITS DATE PAGES

I Closing Brief District 01/13/12 29 pages

II Closing Brief Parent 01/13/12 30 pages

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Footnotes

[1] The , or is a - program. The , is its sister school that services 5-21 year olds with . The is the current placement; the is the requested placement for The witnesses, the hearing officer and counsel have often mistakenly used the terms interchangeable during the testimony

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 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. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). Subsequent to its development, an IEP must be properly implemented (8 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).