Impartial Hearing Decision

Matter of J.M. and M.D. o/b/o their infant son, P.M. and the Brighton Central School Dist. District BEDS No. 80000033987 NYS ID. No. 65416

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education BEDS No. 800000033987

NYS ID. No. 65416

B.. and C. on behalf of their infant son E. -against- Findings of Fact

The A Central School District

Procedural Context

On September 2, 2010 I was appointed to hear the matter of B.. and C., as parents of E., versus the A Central School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, a pre-hearing conference was convened telephonically on October 7, 2011.

On October 17, 2010 the Parents served an Amended Due Process Request, objections to which were more fully addressed on November 1, 2011, the first day of hearing. On November 2, 2011, the Parents served a second corrected Amended Request for Due Process prior to the initiation of proceedings. In its pleadings, the Parents more specifically identified the District’s failure to designate specific higher order reading and math goals, in addition to its failure to assess E.’s need for assistive technology, social-emotional skills and behavioral intervention. A failure to develop counseling goals was also asserted. Beyond this, the Parents claim that the District failed to protect E. from bullying. November 1, 2011 Tr. at 16-20; Exhs. SD-1, P-16, P-

18. Additional resolution sessions were waived and hearings on the merits continued on November 2, 2011; November 3, 2010; November 30, 2011; and December 1, 2011. On this last date, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to February 4, 2012.

Specifically, the Parents assert that the School District’s educational placement, as memorialized by the IEP of July 14, 2011, stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exh. SD-1. As a result thereof, they are seeking tuition reimbursement for the 2011-2012 school year in furtherance of a unilateral transfer to the O. School (hereinafter “O.”), a non-public school setting. There is no dispute regarding classification. As a corollary, the Parents have defended the educational program implemented by O. and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. A list of persons in attendance and of evidence is appended hereto. The School District’s Case

D. testified as lead witness for the School District. D holds a master’s degree in education in addition to initial and pending permanent certification in math education (grades seven through twelve). The witness is employed as a math teacher at A High School, a position she has held for four years. As such, she was E.’s private math tutor during the 2009-2010 school year as well as his algebra teacher during the 2010-2011 school year. During the 2010-2011 school year, D was the content teacher in a co-taught algebra I course, a class in which there were 11 students, five of whom were classified. Ibid. at 32. Nevertheless, she noted that E. could just as easily been assigned to a second integrated co-taught algebra class in which eighteen students were enrolled for classes which are capped at 22. November 1, 2011 Tr. at 52-53, 60. She described E. as a “very hard worker who was . . . always willing to do whatever we asked of him. He was a good problem solver and good thinker. . . .” Nevertheless, the student’s slow processing time constituted a “major weakness” which translated into significantly longer response times, nearly “double” those of typical students in his class. Ibid. at 33. Although the student performed more consistently with the support of frequent and structured prompts within her classroom, D noted that standardized testing remained challenging for the student even when test administration spanned several days. Ibid. at 34. With regard to special education techniques such as previewing, pre-learning and rehearsal, D observed that all students would benefit from these opportunities. Nevertheless, she did not offer . . . “a lot of skill-based instruction. A lot of what we are asking E. to do is to apply skills to a different context, and he did not – I would say he did not require any additional practice in applying those skills to another context than any other student. Those skills may or may not have been more weakly developed, but he often had a use of a graphic calculator.” Students were, additionally, offered three ways of solving a mathematical problem – algebraically, graphically or through a table – depending upon the student’s comfort levels. In sum, rather than learn through repetition, students were asked to generalize concepts to new contexts. November 1, 2011 Tr. at 55-58. With the assistance of Mr. H., her special education co-teacher, D noted that the student received individualized attention through small group instruction. Within this context, a group “reader” would be designated to present the problem. For E., who “more often than not . . . understood the mathematics,” this would be supported by minimal teacher prompting. November 1, 2011 Tr. at 35. Notwithstanding this, D acknowledged that E. received both teacher and peer prompting on a daily basis at a frequency of every ten minutes. Beyond this, the witness noted that E. typically remained after class for an additional 45 minute period of assistance along with other students. The witness testified that she received further assistance from F., the student’s resource room teacher, who suggested prioritizing math assignments and additional resource room support when the Regents’ exams approached. Her testimony as to why this was not done in class with Mr. H. is unclear. Ibid. at 60-61. The witness attributed E.’s two failing grades on the algebra Regents’ examination as a reflection of the student’s immature transition to high school during his freshman year and his subsequent inability to condense a year’s worth of mathematical content within a six week summer session. In tenth grade, E. took the algebra Regents’ examination for the third time, following a year in which he was tutored by J., another math teacher within District. Although the student passed his exam on this third attempt, D did not agree that his success was exclusively attributable to the tutor’s services, noting that “It is hard to pinpoint any one reason why a student is successful. I don’t think it was necessary. It certainly helped him, but I don’t think it’s fair to say that he would not have passed if he had not been tutored.” Ibid. at 39. As a result, D recommended an eleventh grade integrated co-taught geometry class with an enriched instructional environment and modified assignments. Ibid. at 40. Finally, while her students engaged in reciprocal and “typical” high school teasing on a daily basis, D testified that E.’s Parents had not raised this as an issue with her, although there were frequent email communications regarding academic issues. Ibid. at 46, 63-64. Nevertheless, given E.’s slow processing speed and his immaturity, D opined that a five year plan in which the student could obtain a Regents’ diploma with the benefit of a reduced course load constituted an appropriate educational plan for E. November 1, 2011 Tr. at 43. K. additionally testified on behalf of the District. Ms. K. holds permanent certification as a school psychologist and has been employed in this capacity for approximately ten years. She has been a school psychologist in A for the past 2 years and, as such, participated in E.’s CSE convenes of August 30, 2010 and July 14, 2011. November 1, 2011 Tr. at 70. In furtherance thereof, the witness noted that the CSE had recommended a five year program in which social studies would be deferred so that two periods of resource room could be scheduled into E.’s daily program, thus relieving academic demands and the anxieties associated therein. Although unusual, Ms. K. has recommended the five year plan previously for students whose academic and social profiles were similar to that of E., noting that the additional year would offer maturational, emotional and instructional benefits. Ibid. at 77-78. Specifically, Ms. K. observed that E. placed a great deal of pressure upon himself to succeed at his studies. Anticipating that the student would struggle with the “reading” and “writing” component of social studies, personnel concluded that programming two language-based courses at the same time would militate against the likeliness of success in either one. Although classified as learning disabled, E.’s ability to function within the classroom is further compromised by co-morbidities of ADHD and OCD for which medication is prescribed. Ibid. at 138. The witness characterized E.’s reading ability as “mildly” weak, noting that severe processing deficits interfered with the fluency with which he acquired information. She testified, “Certainly if you have fluency difficulty or difficulty with processing information, it’s going to directly influence how you learn material, how you process material in reading, writing and math. . . . So if you have processing weaknesses, you are going to work at a slower Q.” Ibid. at 81-82. Ultimately, E.’s effective decoding did not translate into comprehension. November 1, 2011 Tr. at 143. The clinician further noted that, although E. had attended the July 2011 CSE, he had not raised the issue of teasing or bullying. Ibid. at 82. In April 2009, a Psycho-Education Report was performed by L., a retired psychologist previously employed by the District. Exh. SD-24. When presented with the Woodcock-Johnson Tests of Cognitive Ability – Third Edition (WJ-III), sub-tests of Verbal Comprehension had rd yielded average scores in the 73 percentile. Likewise, she opined that the student’s score on the Concept Formation sub-test, a measure of one’s ability to use language both abstractly and th th directly, yielded an average score within the 34 or 35 percentile. In contrast, the student’s th Visual Motor Processing speed fell at the 5 percentile. Interpreting these scores, Ms. K. observed that E.’s stronger verbal skills were compromised by deficits in cognitive efficiency. Nevertheless, the witness acknowledged that the testing did not include sub-tests measuring long-term retrieval or short-term auditory memory, information which would have been “helpful” in providing additional information about the student’s disability. Ibid. at 125-126. While E. demonstrated average cognitive abilities, the witness agreed that slow work speeds impacted negatively upon the student’s capacity to learn efficiently. November 1, 2011 Tr. at 86; Exh SD 24 at 2. Tests of achievement were additionally developed on the Woodcock Johnson III Test of achievement. On these sub-tests, the student continued to score solidly within the average range in Letter-Word Identification and Passage Comprehension. In contrast, E. yielded scores in the sub-tests of Applied Problems and Writing Samples in the low-average and average ranges, respectively. Based upon the 2009 scores, Ms. K. described a student who demonstrated average verbal and inductive reasoning skills in addition to average reading and writing skills. She suggested that the student exhibited “slight” difficulty in the area of math reasoning but manifested significant deficits in visual motor processing. As the student’s scores were clearly impacted by weaknesses in visual motor processing, test accommodations had been incorporated into E.’s IEP. November 1, 2011 Tr. at 88-90. Addressing an Occupational Therapy Assessment performed by M., M.S., O.T.R., in 2010, Ms. K. observed that when motor function was not a component of the test, E. had excelled in measures of visual perceptual skills.^[1] November 1, 2011 Tr. at 91; Exh. SD 19. Likewise, a standardized assessment of handwriting legibility utilizing the Evaluation Tool of Children’s Handwriting (hereinafter the “ETCH”) produced legible handwriting samples. Notwithstanding this, the report notes, “While his fine motor skills are below average it does not appear to be affecting his ability to put pencil to paper. It can be said that he does perform these types of tasks slowly, which may cause him to get behind.” Exh. SD 19 at ^[2]. The witness, however, agreed that this disability would interfere with the student’s ability to take notes and attend to class simultaneously. November 1, 2011 Tr. at 130-131. Referencing the student’s deficits in fine motor coordination as evidenced on the Bruninks- Oseretsky Test of Motor Proficiency II (hereinafter the “BOT-2”), the witness observed that these limitations would have had a negative impact upon the earlier Woodcock Johnson measure th of Visual Matching, a score falling at the 5 percentile score. She reiterated her view, consistent with psychologist Kathryn L. and occupation therapist Jennifer M., that the student’s delayed processing speed was a significant factor in artificially depressing the results of standardized scores. In fact, E. was capable of performing age-appropriate academic tasks when time accommodations were made. In sum, Ms. K. concurred with the Ms. M., opining that E.’s needs could be addressed through assistive technology, rather than occupational therapy itself. Ibid. at 94. The witness additionally reviewed the Gray Oral Reading Tests-4 (hereinafter the “GORT”) as well as the Nelson-Denny Reading Test. Exhs. SD 28- SD 30. In furtherance thereof, Ms. K. noted that the Nelson-Denny measure is more commonly utilized as a screener, rather than a specific measure of a child’s reading achievement. Moreover, she opined that inconsistencies between GORT and Nelson-Denny scores reflect the procedural context in which the tests are given. Specifically, students must read both the material as well as the questions posed on the Nelson-Denny. In contrast, the GORT requires administrators to read test questions based upon materials the students have read themselves. Ms. K. noted that this distinction would explain the lower test scores yielded by the student on the Nelson-Denny. November 1, 2011 Tr. at 96-98. Referencing the GORT-4 scores, the witness noted that the student again demonstrated rate deficits, although strengths were noted in the area of accuracy. As a whole, Ms. K. testified that the student’s grade equivalent was assessed at a 9.2 level. Exh. SD 28 at 1. The District’s psychologist additionally commented upon the private educational evaluation performed by Daniel H., Ph.D. in May 2010 when E. was a ninth gM.. Exh. SD 27. Referencing Dr. H.’s abbreviated testing on the Kaufman Brief Intelligence Test (hereinafter the “KBIT”), Ms. K. noted that the most recent scores were significantly higher than those yielded in Dr. H.’s 2007 testing. While Dr. H.’s earlier testing with the KBIT had yielded borderline scores in the first percentile, the student now demonstrated average verbal abilities, suggesting an aberrational component of the test-taking process. Ibid. at 101. With regard to Dr. H.’s measures of reading, as per the Woodcock-Johnson –III NU, the witness opined that the child yielded average scores in basic reading, while still evidencing significant nd th nd deficits in reading fluency (2 %), calculation (optimized at 4 %), writing fluency (2 %) and th handwriting (9 %). Exh. SD 27 at 6. She characterized the student’s letter-word identification th th (27 %) and word attack (26 %) skills as “average” notwithstanding several grade equivalents lower than age appropriate. Rather, she noted that grade equivalency is a misleading measure of skill, opining that standard scores based upon the normal curve and a standard deviation of 15 provided a better assessment of achievement. Given this paradigm, Ms. K. testified that E.’s scores were consistent with those obtained by F. The witness testified, “They are similar, actually, with E. showing his basic reading skills are intact. His reading comprehension is where it’s expected to be given his age and his reading fluency . . .” Ibid. at 102-105. Nevertheless, the witness acknowledged that the District itself had utilized grade equivalencies, noting that the IEP had referenced the MAP 2 reading test in which E. achieved a fifth grade score in the fall of his sophomore year, a score later elevated to ninth grade following reading strategy instructions and test accommodations.^[3] Exh. SD 5 at 3. Ms. K. further agreed that considerable discrepancies between the student’s verbal and non-verbal abilities would have an impact upon classroom performance in terms of executive function and social maturity. November 1, 2011 Tr. at 129-130. Finally, the witness noted that, in comparison with the dramatically depressed computation scores reported by Dr. H., math scores derived from the District’s 2009 testing reflected a more accurate view of E.’s ability to conceptualize math problems. She did not dispute the poor scores th which fell below the ^[4] percentile even when optimized. Rather, she believed these were representations of the student’s calculation skills, a deficit for which a calculator could compensate. November 1, 2011 Tr. at 105-107; Exhs. SD -24, 27. Providing a summary of the child’s academic history, the witness observed that, although enrolled in a collaborative special education class, P.M failed English 9 and algebra during the 2009-2010 school year. Similarly, he received no credit for Earth Science but passed a local exam during the summer. During the 2010-2011 school year, the student additionally failed his social studies Regents’ examination but received credit for the class. He did, however, marginally pass local examinations in English and science and received credit for these courses. On his third attempt, the student passed his algebra Regents’ and passed the French Regents’ on his first try. Exh. SD-10. In reviewing the proposed IEP for the 2011-2012 school year, Ms. K. noted that she had concurred with its recommendations, noting that the student required a modified program to accommodate his slow processing speed and attention deficit disorder. Ibid. at 111. In furtherance thereof, E. was scheduled to take integrated co-teaching classes in math and science in addition to two 5:1 resource rooms daily. A “tutor-supported” English class was additionally recommended. Ms. K. testified that this is a general education classroom in which a second certified teacher is placed full-time. Unlike an integrated co-taught classroom, the additional teacher support does not maintain special education certification, although special education students may be enrolled. The class is designed to progress at a slower Q than an integrated co-taught class, and based upon this rationale, the witness agreed this was preferable for E. Ibid. at 113-114, 123-124, 153-155, 157- 159. F. is employed as a special education teacher for the District. Ms. F. is permanently certified in both special and general education; she holds a master’s degree in literacy. Her reading credentials include training in Orton-Gillingham, level one certification in the Wilson Reading programs and a master’s degree in literacy. Ms. F. served as E.’s tenth grade learning resource room teacher. As such, she participated as both District Representative and special educator in the formulation of E.’s July 14, 2011 IEP. The witness described the student as a “dedicated learner who’s trying his best to be successful at school. He is willing to stay after school, if that’s what it means, willing to put in the extra time it takes him to work . . .” Notwithstanding this, the student has “major” deficits in processing speed and requires additional time to complete tasks and organize his thoughts.” The student is often unable to complete class work and homework and struggles to keep up with his peers when reading in class. November 1, 2011 Tr. at 162-164. During resource room, the witness testified that she utilized a homework planner and offered various reading, math and studies skills strategies. In furtherance thereof, she assisted E. with identifying homework assignments and utilizing his calculator when appropriate. Ms. F. noted that E.’s planner/agenda was frequently incomplete and, although she attempted to prioritize his assignments, “It did not always translate when he got home . . .” Ibid. at 197. The witness discussed various reading comprehension strategies, including the use of key words, headings, pre-reading questions, annotations, flash cards and study guides to preview test materials. Ibid. at 166-167. Nevertheless, she acknowledged that these techniques could not be applied to all written materials; many techniques were designed as strategies rather than guarantees of comprehension. She did not assist E. in science, but referred the student back to his teacher if issues arose. Ultimately, the witness opined that E. had experienced a successful tenth grade school year, having passed all of his subjects. Unlike his ninth grade experience, a year in which P.S. failed three of his core classes, the student had matured, adjusting to the demands of high school and the less restrictive environment of an integrated co-taught class.4 Although E. could decode concrete materials, he struggled with inferencing and identifying the main point. The witness described a positive relationship with the student, adding that he frequently came to her room at unscheduled times as it was a “safe place” for him. She referenced a few incidents of teasing, but marginalized their importance, largely attributing them to the lone actions of an impulsive student in her class. While she noted that E. did not appear upset during any of these incidents, Ms. F., nevertheless, noted that E. was socially anxious and his laughter was frequently an expression of nervousness. Ibid. at 171-172, 219. In an effort to develop E.’s social facility, several clubs were suggested and, ultimately, with Ms. F.’s support, the student joined a community service group in school. The witness indicated that she had participated in the CSE meeting for E. and had been responsible for marshalling the current levels of performance based upon interviews with his teachers. Based upon these materials, she concluded that the student possessed average cognitive abilities although his processing efficiency was “extremely low.” She noted that his verbal abilities were higher than his performance skills and that the student experienced difficulty with abstract language. Despite these difficulties with higher order language, she had not initiated a consult with the District’s speech/language pathologist. In August 2011, Ms. F. assessed E.’s reading skills at the request of the Parents, utilizing the GORT and Nelson-Denny. At this time, the Parents did not indicate that their son would not be returning to the District. Ibid. at 184; Exhs. SD 28-30. Again, she attributed the wide discrepancies between the GORT and Nelson-Denny to the structure of the instruments and the manner in which questions were asked. In particular, she observed that the GORT is orally directed while the Nelson Denny is read silently by the student. As a result, she opined that the Nelson Denny was not an accurate reflection of the child’s reading levels while the GORT provided additional support through auditory cuing. November 2, 2011 Tr. at 295. Specifically, Ms. F. noted that E. could now read at an eighth to ninth grade level, depending upon the level of comprehension sought or the conditions upon which reading occurred, i.e. if prompted to utilize strategies or if read in unison with the instructor. Ibid. at 181-182. While the student could respond to concrete questions, he struggled with inferences and higher order tasks (i.e. metaphors, similes, symbolic speech, main ideas, inferences), particularly where fluency was an issue. She added, moreover, that prompting and repetition were very important for P.M as it kept him focused on the material and key issues, facilitating his ability to predict test materials. Nevertheless, even when scaffolding outlines were provided within class, the student was unable to avail himself of this support. Ibid. at 193, 198. In sum, she described a student whose decoding skills were strong, although reading was slow and stilted. The witness acknowledged that this processing delay had a negative impact on E.’s comprehension adding that individual achievement scores might not actually reflect functional ability. November 2, 2011 Tr. at 284. As a result, the witness noted that one resource room, designed to exclusively address E.’s reading and comprehension skills, was incorporated into the student’s IEP. A second resource room would then be dedicated to organizational issues, study strategies, test-taking and preparation. November 1, 2011 Tr. at 209. The witness indicated that she had also contemplated a third “Modern Reading” 5 class, but this was not ultimately finalized in the document. 6 As a result of E.’s processing delays, nearly twice as much as more typical students, Ms. F. had recommended a general education English “with tutor” class supported by a second certified teacher. 7 November 1, 2011 Tr. at 194. She did not know why an integrated co-taught English class had not been recommended although this had been the recommendation for both math and science. Ibid. at 201-209. The testimony follows: Q. Okay. So there was an English 11 ICT? A. That is correct Q. What was the rationale behind placing him in the English 11 with tutor as opposed to English 11 ICT?

A small group reading class (3:1) meeting on alternate days in which supplemental reading instruction was offered.

Modern Reading is not a special education service and is aligned more appropriately with Academic Intervention Services. November 2, 2011 Tr. at 306.

As of the July 14, 2011 CSE convene, no Modern Reading class even existed. Although this is a general education Regents’ bound class, the witness suggested leveled materials would be utilized. November 1, 2011 Tr. at 238. A. A conversation that existed between the English Department and Special Ed Department in which it was stated that the class with a tutor would be better suited to modify curriculum, to address the needs of a students that needed to move at a slower Q and have different material. Q. Okay. And when they had this discussion, the two departments, was that at the CSE meeting? A. No, it was not. Q. So were those options discussed with the parent? A. The recommendation was made that the best class for him – no, I don’t believe I said to you, we also have an ICT class, because I did not feel it was appropriate. So I wasn’t going to bring it up. Q. So there was no discussion about that program even though that had been the program he was in previously? A. Right. For tenth grade he was in a class that was a basic level class that also had ICT. November 1, 2011 Tr. at 254-255.

In addition to an additional instructor or “tutor” within E.’s core classes, the student was assigned to a Teaching Assistant who could provide direct classroom assistance to the student while interfacing with other personnel in an effort to maintain communication and consistency throughout the student’s day. Depending upon the class, E. would receive this intervention on a 1:1 or 2:1 basis. November 2, 2011 Tr. at 317-319. Ms. F. believed, moreover, that additional assistive technology in the form of Dragon Naturally Speaking 8 would appropriately benefit the student. The witness noted that this had not been entirely successful as the voice recognition factor had not been fully achieved. Nevertheless, E. was additionally offered (1) a scribe, (2) accessibility to teacher created class notes, (3) testing and assignment modifications as well as (4) regularly scheduled parent-teacher meetings in an effort to mitigate the impact of E.’s slow processing speed. Ibid. at 236. Content area support was additional incorporated into the student’s schedule once every six days. Exh. P 19. Given the child’s schedule, Ms. F. did not deny that the student might be exposed to at least 11 different faculty members. Finally, although rare, the witness opined that the five year graduation plan directed at obtaining a Regents’ diploma was an appropriate educational plan for E. Ibid. at 247. G. additionally testified on behalf of the School District. Ms. G. holds master’s degrees in elementary education and education leadership. She is certified in elementary education, reading, school district and building level administration and has been employed by the District for 35 years, serving as the Director of Pupil Personnel Services during the last two. She has known E. in an administrative capacity for several years and has participated in the development of his IEP. November 2, 2011 Tr. at 348-349; Exh. SD 13. She described the student as “an extremely hard worker, and he comes home from school and he spends a very large portion of time completing his homework.” She added, “He’s friendly, cooperative. I think everyone found him just delightful to have in class. That he was inattentive at times, and that his comments in class were sometimes on target and sometimes not on target. . . . That he benefited from prompting to keep on task and to keep working. So the distractibility

A computer was also made accessible to E. during school hours. was impacting . . . that he benefits from reassurance as to what he’s doing is right. . .” November 3, 2011 Tr. at 377, 414-415. The witness generally described her understanding of E.’s academic and emotional needs, referencing prior educational plans for ninth and tenth grades. Exhs. SD 13, 14, 16, 17. She further noted that E. had evidenced significant deficits in verbal and short-term memory as per Dr. Marles’ May 2010 report. Exh. SD 27. Although District testing suggested levels of reading th achievement nearing 9 grade equivalency, the witness acknowledged that there was a discrepancy between E.’s test performance and functional levels within the classroom. November 2, 2011 Tr. at 530. Ultimately, Ms. Gibbon’s testimony was consistent with that of D and Ms. F.; similarly Ms. F. was in accord with the five year graduation plan. Reviewing the student’s transcript, the witness noted that the student’s need for time modifications had increased during his high school years and, in 2011, the State Education Department (hereinafter “SED”) determined E.’s eligibility for administration of secure SED examinations over multiple days. November 2, 2011 Tr. at 372-373; Exhs. SD 11, 12, 14. Ms. G. testified that 22 credits are required for high school graduation. As such, E. had earned eleven, seven of which were local credits. November 2, 2011 Tr. at 367; Exh. SD 10. Nevertheless, the witness acknowledged that the student completed the 2010-2011 tenth grade school year failing three out of four final exams and was essentially on track for a local, rather than Regents’ diploma. November 2, 2011 Tr. at 489, 492; Exh. P 11.9 On rebuttal, Ms. G. testified that E. had, in fact, been slated to receive a Regents’ diploma, but b ased on the number of Regents’ competency grades, “may” have moved into a local diploma track; she was, however, unaware of any discussions regarding this issue. December 1, 2011 Tr. at 1034-1038, 1055. On August 25, 2010, Ms. G. received notice from O. that E.’s Parents had initiated an application. Exh. SD 25. O. is a private school serving the needs of students with disabilities. On November 17, 2010 the District learned that E. had been accepted to O. for the 2010-2011 school year. Notwithstanding this, the student remained within District during his tenth grade year. On July 14, 2011 the CSE reconvened. At this time, the Parents’ psychologist, Dan H. participated in the proceedings while the Parents requested District tuition support for O.. Exh. SD 7 at 3. Instead, the District advocated a five year graduation plan and discussed its rationale extensively. Ultimately, the Parents were provided with a proposed schedule of classes for the remaining three years of the five year plan and, by CSE consensus, the five year plan was adopted. November 2, 2011 Tr. at 394. Ms. G. specifically testified that the Parents and their expert did not object. On cross-examination, the witness acknowledged that the July 14, 2011 CSE was not in possession of the 2010 Occupational Therapy Evaluation, the Assistive Technology Evaluation, In fact, the student had received a “low-pass” grade, an accommodation available to disabled students, on the social studies Regents’. November 2, 2011 Tr. at 555. Dr. H.’s Educational Assessment of May 2010 or a Counseling Report. Moreover, although Ms. L.’s report did not include behavior checklists, the CSE had considered teacher reports which did, in fact, address the student’s social issues. Exh SD 24. Ms. G. acknowledged that the counseling recommendations in the IEP had not been based on any report, nor were there any goals. Ibid. at 524-525. In fact, the student had previously declined counseling services even when recommended as he had been teased by the other group participants.10 Ibid. at 566-567. The witness acknowledged there were only six goals articulated within the student’s IEP, but observed that there was no legal obligation to identify teacher strategies or methodologies within the document. Ms. G. further elaborated upon the manner in which access to a word processor would be furnished. Although all classrooms are equipped with at least one computer, the logistics of providing E. with this accommodation were circumscribed by classroom instructional time and student demand. Nevertheless, the witness opined that the use of mobile labs, flash drives and email could circumvent accessibility issues. November 2, 2011 Tr. at 509-512. Ms. G. additionally noted that the Educational Evaluation provided by Dr. H., the Parents’ expert, had specifically recommended “. . . a mix of integrated co-teach classroom support and self-contained 15:1:1 classroom instruction provided for all of his core classes.” Exh. SD 27 at 15. In furtherance thereof, the witness testified that this had been achieved within the student’s IEP. Specifically, E. was scheduled to take integrated co-teaching classes in both math and science, further supplemented by either a 2:1 or 3:1 teaching assistant. November 2, 2011 Tr. at 317-319. These collaborative classes had been recommended based upon the fact that E. had passed integrated co-teaching classes in tenth grade. In addition, the student was assigned to an English class staffed by a general education teacher, a second “tutor” licensed in the English content area and a 1:1 teaching assistant. Ibid. at 410-411, 419-420. Moreover, E. was scheduled for two resource rooms daily, one in which reading would be specifically taught by a certified reading specialist and a second resource room in which writing, content area and executive function would be addressed. December 1, 2011 Tr. at 1040- 1043. Notwithstanding the various accommodations implemented within the English with Tutor class, the witness could not explain why this class was not deemed a special education class, given its inherent supports, slower pacing and smaller pupil/personnel ratio. Ibid. at 420-422. She testified, however, that there was no special education English 11 class being offered with a 15:1 ratio. Ibid. at 538-540. On cross-examination, Ms. G. admitted that for at least three of E.’s classes there would be up to 18 students in the room along with 3 adults, totaling 21 people in the classroom. November 2, 2011 Tr. at 535. Even if the class were broken into smaller groups for various instructional purposes, the larger class size would inherently include noise and distraction, not present in a smaller class. Ibid. at 536. The witness testified that while she was aware of the private and extensive support E. was receiving at home through tutors and Parental supervision of homework, this had not impacted Additional testimony indicates that E. felt too pressure academically to spend time in counseling, preferring to use this time for direct content area tutoring or access to the computer room. December 1, 2011 Tr. at 940- 944. upon the District’s commitment to providing a range of supplementary aides beyond the classroom paradigm. In furtherance thereof, she reiterated the extensive supports and interventions articulated within the student’s IEP, all of which related to minimizing the impact of E.’s processing and fine motor deficits. Ibid. at 427, 480. On August 24, 2011, the District received notification that E. would be attending O.. Exh. SD 1. Although District testing was conducted at or about this time, Ms. G. testified that the Parents had not indicated that they would be removing their child. Rather, District personnel expended District resources based upon their assumption that E. would be their student in the fall. Ibid. at 429. On cross-examination, the witness acknowledged that an assistive technology evaluation, requested in May 2010, had been delayed by more than eight months, a delay she could not explain. Nevertheless, during this period, E. had continued access to a computer, a scribe and Dragon Naturally Speaking such that the delay did not actually prejudice the student. Although Ms. G. agreed that text to speech software was an available technology, this had not been offered to the student as it had not specifically been recommended. Ibid. at 545-547; Exh. P 9. Similarly, a portable word processor with word prediction was not offered, although the evaluation had considered this. Exhs. P 3,9,10. Nevertheless, Dragon Naturally Speaking, a speech to text program, had been made available to the student although its use in quiet testing or resource rooms 11 was subject to availability. November 2, 2011 Tr. at 475. The Parents’ Case N. has more than 20 years of experience in the field of special education and is currently the co-head of O.. O. is a Regents’-granting, state approved school offering special education. There are approximately 130 students enrolled, all classified. Instruction is predicated upon the “All Kinds of Minds” neuro-developmental program in addition to various empirically based visual- cognitive protocols. Reading teachers have completed both Wilson Reading certification and training in Linda Mood Bell methodology. E.’s English class additionally includes a push-in speech pathologist. Finally, a range of related services are provided on site. November 30, 2011 Tr. at 817-825. The witness testified that she is familiar with E., having observed him incidentally on a daily basis and more formally in class observations. She has not, however, observed E. within District. Ms. N. described a motivated student who struggled with impulsivity and organization. Although eager to participate, he had difficulty with visualizing concrete descriptions and drawing higher level abstractions. Ibid. at 829-831. In furtherance thereof, she noted that E. exhibits deficits in reading fluency in addition to comprehension. The student attends a social skills group weekly. P. testified on behalf of the Parents. Ms. P. is certified to teach special education (K-12) and is additionally trained in both the Wilson and Fusion Reading Systems. Although she has taught for nearly 19 years, the witness has never taught a self-contained public school class, nor has she served as a consultant teacher.

The program is sensitive to extraneous noise and should be utilized in a quiet environment. The witness is employed by O. as a reading teacher, but additionally maintains supervisory and team leader responsibilities. The witness noted that E. participates in her small reading class (5:1) in which interpretive language is stressed. While all of the students are independent readers, the witness noted that they consistently struggled with higher order language skills such as interpreting text, making predictions, drawing inferences and comprehending the written word. November 2, 2011 Tr. at 443-444. Upon his enrollment to O., E.’s reading skills were assessed on the Woodcock Johnson Reading Mastery Test. Scoring reflected very strong decoding and word identification skills (16.3 grade level) with highly depressed comprehension levels (2.7 grade level). Ibid. at 448. As a result, when reading aloud, Ms. P. testified that prompting at nearly every page was required in order to ascertain E.’s comprehension. The witness noted that she utilized a variety of strategies to support and develop E.’s reading skills. This included scaffolding, pre-teaching, re-teaching and review. Complex vocabulary was developed through word study and Fusion-based curriculum. Ibid. In furtherance thereof, each reading strategy must be mastered before moving on to new goals. The witness testified, “There’s linking day to day . . . once we learn a strategy, we integrate it into every single day and we review it. We never let go of a strategy we teach. We always refer back to it.” Ibid. at 452. Ms. P. additionally described a structured routine which emphasized daily review, repetition and consistency. Daily “warm-ups” included quick, easily performed tasks designed to engage students while instilling confidence. As interim report cards had been sent only 5 weeks into the school year, E.’s grades were largely a reflection of his participation in class warm-ups. November 2, 2011 Tr. at 456; Exh. P 14. She noted additionally that E. has significant issues with executive function and social maturity, arriving late on a daily basis nearly every day because he is unable to organize the transition from home to school. Notwithstanding this, the student had frequently availed himself of extra instructional help and was motivated to succeed. Phillip R. additionally testified on behalf of the Parents. Mr. R. holds a master’s degree in education and is certified to teach English and social studies (7-12). The witness has taught at O. 12 for the past 24 years where, in addition to content area instruction, he is responsible for the outdoor education program. Mr. R. is additionally certified as a trainer in both the “Schools Attuned” and “Thinking Maps” educational and assessment programs. E. is a student in Mr. R.’ English writing class, a small class of seven students enriched by the assignment of an additional teaching assistant. The witness described an eleventh grade Regents’ class whose students displayed a wide range of skills and disabilities. November 3, 2011 Tr. at 615. Instruction is based upon the EmPOWER strategy, an empirically based methodology originated by Anthony Bashir, a clinical psychiatrist employed at Emerson, Harvard and Boston Children’s Hospitals. In this manner, writing tasks are organized into discrete steps which require analysis, evaluation and planning. Students are then guided through

O. is approved by New York State to provide special education services. reviewing and editing their work product. In addition to EmPOWER, Mr. R. noted that students are given learning strategies predicated upon the use of Thinking Maps, a specific strategy which structures the learning process. Notwithstanding this, on cross-examination, the witness acknowledged that the Thinking Maps strategy might be considered a form of graphic organizer. November 3, 2011 Tr. at 646-647. Assistive technology is available through the use of laptops, Dragon Speak, smart boards and text-to speech programming if required. Students are assessed by personnel during weekly meetings and progress reports distributed on a regular basis. The witness described a motivated student with significant executive functioning deficits. He testified, “. . . I’ve been teaching 24 years – and I don’t mean to say this to embellish it-- he’s probably the most significantly impacted student in terms of executive functioning that I have seen in quite a while. That, combined with his obsessive issues, make it very difficult for him to progress . . .” Ibid. at 622. He continued, “ . . . for E. to get started, just to physically get started with the writing process in a given day, you know, he’s got to go find his computer. It has to be the exact computer he used before. If it’s not the same computer he used before, then he’s already not going to be able to focus because it has to be that computer. When he comes down and gets started on the computer, he has to be able to find the work on the computer, but because of his executive functioning issues, he doesn’t always save it in the appropriate place on the computer . . .” Ibid. at 623. Even after locating his materials, the witness noted that E. was easily distracted and requires constant reassurance, a consequence of his ADD and OCD issues. As a result of E.’s deficits, the witness opined that instructional consistency and routine were essential, a process which has facilitated E.’s success in social studies, a class not taught by Mr. R.. November 3, 2011 Tr. at 643-644. Finally, although E. was still adjusting to the demands of his new environment, the student had begun to function more independently within the classroom, showing some initiative with applying the strategies he is learning. Ibid. at 628, 631. While a very high percentage of O. students ultimately receive Regents’’ diplomas, the witness noted that a local diploma may be conferred if necessary. Q additionally testified on behalf of the Parents. Mr. Q holds a master’s degree in education and is certified by New York State to special education and “childhood education.” November 3, 2011 Tr. at 655. The witness has been employed by O. for several years and is currently E.’s geometry teacher, an 18 month class which includes an extensive review of algebra. Six children are enrolled. The witness described a class supported by visual demonstrations, smart board access, closed notes, scaffolding and repetition. Daily assessments occur through the use of “bell-ringers,” an approach which evaluates student understanding based upon the prior evening’s homework. Teaching and re-teaching of materials is ongoing and the school wide use of the Thinking Maps protocol is implemented. st Although E. had previously passed the algebra Regents’, he scored at the 1 percentile on O.’s entry math assessment. As a result, he was placed in a geometry class which includes an extensive review of algebra. He described a student who could identify the step-by-step process in a math problem, but did not understand “what numbers mean and how you get to an answer.” Specifically, E.’s calculation skills were very poor, a deficit which could be remedied with a calculator. He further noted that the student was disorganized in terms of marshalling homework for the next day and distinguishing them from assignments generated by his private tutor. Ibid. at 680. Finally, Mr. Q noted that the student had become more comfortable with self-advocating when confused by the material and was even attempting to socialize. S. holds a master’s degree in education and is certified in secondary English and Social studies. He is additionally certified in the Thinking Maps and “All Kinds of Minds” methodology. The witness has taught at O. since 2001. In addition to serving as E.’s English teacher, Mr. S. is the student’s advisor. In this capacity, Mr. S. prepares E.’s IEP and sees the student during homeroom and “end of the day advisory” periods. November 3, 2011 Tr. at 737-739. Describing his eleventh grade English class, the witness observed that there were nine students in the class, including E. Decoding levels varied from elementary to post-high school levels while comprehension and writing abilities were similarly scattered. Unlike typical public school English classes in which literacy skills are generally condensed into one class, the witness testified that O. students are assigned to separate reading, writing and literature classes. Although special techniques such as EmPOWER and Thinking Maps are utilized, Mr. S.’s class is substantively focused upon literature. Ibid. at 740-743. The witness noted that classroom protocol remains constant from day to day, providing E. with a predictable routine that minimizes anxiety and enables him to focus on content. Ibid. at 755. The witness testified that E. is intellectually capable of grade level assignments as evidenced by his accumulation of high school credits. He is, however, highly disorganized, anxious and socially awkward, all of which interact synergistically. E. comprehends literature in a concrete and one-dimensional manner, struggling with higher order concepts such as irony or metaphor. While he frequently does not understand what is being asked of him, once prompted, E. is able to draft a response independently. November 3, 2011 Tr. at 750-751. Finally, Mr. S. additionally observed that his small class size facilitates an environment in which social skills may be practiced. He described a student who was still transitioning to a new school, experiencing anxiety with unfamiliar people and struggling with limited social skills. Notwithstanding this, the witness had observed “definite” social gains within the confines of his homeroom class, a small and unthreatening environment. T. additionally testified on behalf of the Parents. Ms. T. holds a master’s degree and Certificate of Advanced Study in school psychology. She is certified by New York State as a school psychologist and has been employed by O. for the past three years in this capacity. The witness provides individual counseling to E. as per his IEP mandate in addition to weekly group counseling, a service rendered at the request of the student. November 3, 2011 Tr. at 772. The witness described a highly motivated student who wanted to develop friendships, but lacked the pragmatic skills to do so. Through various techniques in which social behavior, perspective and expectations are analyzed, the student is beginning to demonstrate emergent skills in this area. In particular, the witness observed that E. appears more confident during unstructured times of the day; rather than simply smile at his peers, he is beginning to initiate social dialogue. Ibid. at 775. Nevertheless, the student’s OCD had persisted and he continued to exhibit ritualistic behaviors in stressful classroom environments. Ibid. at 778. H., Ph.D. additionally testified on behalf of the Parents. Dr. H. holds a Ph.D. in education. Although he was previously certified as a special education teacher, he does not presently hold any state certifications but maintains a private practice as an education specialist. December 1, 2011 Tr. at 1011. Dr. H. met E. initially in 2007 when he conducted an Educational Evaluation of the child. Exh. SD 23. Based upon his administration of the Kaufman Brief Intelligence Test nd 2 Edition (hereinafter “K-BIT”), Woodcock Johnson Tests of Achievement-Revised III and Detroit Test of Learning Aptitude (DTLA-4) Sentence Imitation sub-test, Dr. H. assessed E.’s verbal score of 80 and non-verbal score of 60. Nevertheless, he testified, “while these [scores] are valid representation of the particular skills assessed, he [E.] has some stronger cognitive skills that weren’t measured on this assessment. Although rather low, Dr. H. testified that these 2007 scores were consistent with those obtained previously by District psychologist, Dr. Steven Pulos, as well as those obtained by Ms. L. in 2009. The witness has never observed the student within the classroom. December 1, 2011 Tr. at 869-873; Exh. SD 24. In March 2010, the Parents returned to Dr. H. seeking assistance with the bullying E. experienced at school. Clinical reports indicated that E. was suffering from a moderately severe clinical depression superimposed upon his OCD, anxiety and tic disorder. Ibid. at 929. In addition, the student was struggling with sleep issues and demonstrated “Adjustment Problems with Some Mood, Behavior and Social Difficulties.” Exh. SD 20 at 12. The witness opined that the student’s poor social and self-advocacy skills had compromised his ability to manage and deter the ongoing teasing he experienced. Although the witness believed District personnel were already aware of this situation, school officials were again notified by Dr. H. and a plan, inter alia, for “direct and targeted interventions around the teasing and harassment” recommended. December 1, 2011 Tr. at 910; Exh. SD 20. Thereafter, Dr. H. began working with E. to develop appropriate social skills. Lunch periods were removed from his schedule and E.’s resource room teacher took aggressive control over the teasing. Ultimately, the teasing decreased. In May 2010, cognitive and achievement assessments were repeated by Dr. H.. Exh. SD 27. At this time, the student scored significantly higher when the K-BIT II was re-administered and, as a result of higher verbal and non-verbal sub-tests, the student’s IQ composite was significantly increased. Achievement scores, moreover, demonstrated a consistent improvement across five reading and math categories. Notwithstanding this, E.’s skill progression across the years frequently did not reflect the expected level of advancement for the typically developing child. December 1, 2011 Tr. at 1022-1023; Exh. SD 10. Again, the witness noted that scoring patterns evidenced in 2010 were commensurate with both his own 2007 testing and District psychologist L.’s measures in 2009. He opined that all assessments reflected a similar constellation of cognitive weaknesses and strengths. Ibid. at 877, 997, 1019-1020. To begin, E. scored within the low average range on sub-tests measuring passage comprehension and applied problems. Exhs. SD 24 at 2; SD 27 at 12. Nevertheless, the witness opined that E.’s low average comprehension skills were further compromised by slow processing rates and deficits in executive function. Dr. H. further noted that the student continued to demonstrate a clear non-verbal learning disability which impacted significantly upon his ability to absorb mathematical material. December 1, 2011 Tr. at 955. Due to the considerable expense involved, the witness acknowledged that he had not given E. a comprehensive cognitive assessment. Dr. H. further concurred with Jennifer M.’s 2010 Occupational Therapy report, but noted that the impact of E.’s poor fine manual control would extend beyond grapho-motor considerations, impinging upon his ability to function within a standard high school math class or science laboratory (i.e. using a scissor or scalpel, managing chemical interactions, drawing angles, plotting graphs). Dr. H. further testified that measures of auditory memory were significantly lower in 2010, a factor related to increased testing demands and age. Although earlier District measures had noted nd “slight” weaknesses in E.’s auditory processing skills, the student now yielded scores in the 2 percentile, reflecting a steady decline since 2006. December 1, 2011 Tr. at 875-881; Exhs. SD 27 at 4, SD 27 at 10 13. Nonetheless, Dr. H. noted that emotion and attentional factors could compromise the integrity of the scores yielded. Despite declining auditory scores, Dr. H. testified that measures of achievement for letter-word identification and passage comprehension for 2007 and 2010 remained consistent and fell within the margin of error. In contrast, the student’s math achievement plummeted dramatically even when optimized through the use of a calculator.14 Referencing his use of grade equivalence, the clinician defended this measure by noting that grade equivalence provided “an absolute” measure in contrast with standard scores provided a context for the raw number. In describing his recommendations, Dr. H. testified that he had set forth two educational plans for the student as the Parents were unsure whether E. would be accepted to O. and if they would be able to afford its tuition for E.’s tenth grade year. Exhs. SD 27. Although he had “strongly” preferred the 12:1:1 program at O., he believed it was incumbent upon himself to work collaboratively with the District using the special education interventions it had available. December 1, 2011 Tr. at 899-901. These services did not include a 12:1:1 placement because the District had acknowledged this would be inappropriate for the student. The witness testified, “. . . the intent of this recommendation was to make a recommendation that could actually be acted upon.” Ibid. at 903; Exh. SD 20. On July 14, 2011 the CSE convened for the purpose of developing an IEP for E.’s eleventh grade year. The witness testified, “Well, in essence, the District was looking at a five year plan because they weren’t able to offer him an appropriate . . . because the District was not able to offer him an appropriate program. So the District did not have 15:1 classrooms in their core classes. So he was placed in integrated co-teach classrooms where the Q was too fast for him. So if the only option on the table was integrated co-teach classrooms, they we would have to look at something like a five year high school plan. Instead, what E. needed was more intensive support in terms of placement in a self-contained 15:1 or 12:1:1 classroom . . . . . From the earlier CSE meetings in ninth grade, the discussion was that the 12:1:1 classrooms that were available were not appropriate for him.” December 1, 2011 Tr. at 953. Although the witness could support E.’s placement in some co-taught classes, he did not believe this was an appropriate placement for all core courses. In support of his position, Dr. H. noted that E. had received A 2006 Test of Auditory Perceptual Skills, Revised (hereinafter “TAPS) yielded a composite auditory quotient of 96. The 2007 DTLA-4 score in Sentence Imitation fell at the 25%. The 2010 DTLA-4 score in Sentence Imitation nd yielded results at the 2 %. 14th The 2007 Woodcock Johnson R- III calculation sub-test score fell at the 20 percentile. In contrast, even when th th th optimized, the 2010 calculation score fell below the 4 %. Scoring at the 25 and 75 percentiles are considered within the average range. December 1, 2011 Tr. at 1006. course credit but failed his English, social studies and health final exams in tenth grade. Exh. SD 10. In sum, Dr. H. opined, “The major piece that was missing from this – from this IEP that was developed, was the absolute failure of any special education support to address his reading issues or his English language arts.” Ibid. at 955, 1012-1013. If, however, the student opted for the five year plan, the witness noted that E. would receive a daily resource room taught by a reading specialist along with a second resource room addressing content area concerns. The witness remained concerned about the appropriateness of the proposed IEP, however, as it was unclear how an eleventh grade integrated co-teach math class would have been any different than the integrated co-teach class in which he had participated during ninth and tenth grades. Thus, Dr. H. opined, “If the instruction hasn’t been effective and we are just going to keep continuing the same ineffective instruction, then we are just going to repeat the same pattern over again.” Ibid. at 961. Similarly, the witness echoed the Parents’ concern that the IEP did not specifically articulate reading goals and objectives with any level of specificity. In the absence of any identified reading curriculum or expressly articulated goals, neither he nor the Parents felt comfortable that P.M would make progress. Responding to E.’s scoring on the District’s GORT, the witness testified that it was commensurate with the reading fluency scores he had derived in 2007 and 2010. He agreed that the scores reflected a significant weakness in reading rate and that this deficit contributed to poor fluency. Thus, notwithstanding E.’s average ability to comprehend materials, E.’s poor processing speeds compromised the student’s performance. B.. is the child’s father. He is a college professor of meteorology. Mr. M. described E.’s greatest academic weakness in terms of his ability to organize his world, a deficit exacerbated by anxiety and distractibility. He noted that E. was additionally diagnosed at the U. General Hospital with OCD and ADD for which the student has been intermittently medicated. E. has additionally participated in ongoing non-District counseling. Although the witness testified there had been a long history of bullying within District, E. was reluctant to inform his Parents about these occurrences. As a result, the family was frequently unaware of the extent and nature of these incidents, relying upon School reports. Ultimately, E. stopped eating lunch in the cafeteria, where much of the bullying had occurred. November 3, 2011 Tr. at 696-700. In tenth grade, with the assistance of Dr. H., the issue of bullying was addressed more intensely with the District. Consequently, Mr. M. testified that the level of harassment had decreased, although the student’s schedule continued to exclude a lunch period. Mr. M. noted that he and his wife have consistently retained content area tutors for E. since ninth grade. In addition, they have retained a professional who specifically addresses E.’s executive skills. In November 2010, E. was accepted to O., a placement recommended by Dr. H.. In discussions with the District at this time, the Parents accepted the CSE’s position that its personnel could meet E.’s educational needs and E. remained at the high school for the remainder of ninth and tenth grades. In ninth grade, the Parent testified that E. failed three of his core courses. Commenting upon the student’s relative success in tenth grade, Mr. M. testified, “I would say that improvement is what one would expect to happen if one goes through this much repetitions of the same course.” November 3, 2011 Tr. at 713-714. Similarly, the Parent noted that E.’s “passing grades” frequently reflected low pass accommodations made for disabled students, providing local rather than Regents’ credit toward his diploma. Ibid. In July 2011 the witness attended a CSE meeting on behalf of their son. Mr. M. testified that he was not particularly opposed to the suggested five year graduation plan. Rather, he remained concerned that E. did not possess the necessary skills he would require in order to be successful after graduation. In particular, Mr. M. opined that E. was capable of success when placed in a small classroom, a fact evidenced by his success on the biology and French Regents’. Beyond this, the Parent wished to more clearly define E.’s areas of deficit in executive function and literacy so that a more specific remedial reading plan could be formulated. While Mr. M. did not, in theory, object to a five year plan, he did not believe the CSE’s plan would specifically address E.’s educational needs, other than be reducing E.’s course load. Thereafter, the Parents re-applied to O. and E. was re-accepted in August 2011. Exhs. P 17, SD 1. When they were certain as to O.’s financial feasibility, the Parents advised the District that E. would be attending the District’s program. Mrs. D. is E.’s mother. She provided a brief history of E.’s academic and social struggles. By elementary school, she noted that E.’s academic deficits and social isolation had become more pronounced. In high school, completion of homework assignments routinely required four to five hours every evening. The use of subject binders to organize class assignments was ineffective as E. would mix the binders up, have difficulty retrieving work from the websites, forget to pack his knapsack and have difficulty contacting his teacher the following day. November 3, 2011 Tr. at 785-789. Mrs. D. testified that both she and her husband assisted E. with his homework on a daily basis. In addition, E. received private math tutoring twice a week along with professional coaching in executive function. The Parent described a lonely child whose extra-curricular activities were limited by school, medical and psychiatric demands. Despite these issues, Mrs. D. testified that E. was eager to attend school and accepted his responsibilities as a student. Since beginning O., Mrs. D. testified that homework was considerably less demanding due to use of multiple choice questions, more targeted assignments and fewer writing demands. Although the Parent believed the District had been very cooperative in general and particularly gracious with E.’s testing and time accommodations, she did not see the functional benefits of the special education interventions which had been incorporated into her son’s IEP. Ibid. at 800. Rather, E. remained confused by overwhelming distractions and demands. The School District’s Position The School District maintains that the July 14, 2011 IEP is valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the School District asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). The District further maintains that O. is an inappropriate placement for the student as it does not comport with the notion of furnishing services within the least restrictive environment. As an ancillary argument, the School District contends that the Parents’ actions militate against their equitable entitlement to relief. The Parents’ Position The Parents assert that the School District stands in abrogation of its duty to provide E. with a free and appropriate public education for the 2010-2011 school year in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEP generated July 14, 2011 reflects a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. Specifically, the Parents maintain that the District’s failure to appreciate the extent of E.’s verbal and non-verbal deficits compromised the integrity of its educational planning. In furtherance thereof, counsel maintains that the School District’s IEP broadly neglected the student’s academic, emotional and social needs such that the Parents were compelled to unilaterally place their child in a non-public school placement (Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her Parents’, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998). Consistent with their argument, the Parents contend that the O. School constituted an appropriate placement for their son during the 2010-2011 school year and, furthermore, that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement. There is no claim for compensatory education. Discussion It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d nd 748, 750 [2 Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01- 105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a]. In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]). In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199. Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]). Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]). Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]). The instant matter additionally presents the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEA and enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

Point 1: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the July 14, 2010 IEP reasonably calculated to confer an educational benefit upon E. during the 2010-2011 school year? Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1). An IEP must also include measurable annual goals, including benchmarks or short-term objectives, related to meeting the student's needs arising from his or her disability to enable the student to be involved in and progress in the general curriculum, and meeting the student's other educational needs arising from the disability (34 C.F.R. § 300.347[a][2]; see 8 NYCRR 200.4[d][2][iii]). In addition, an IEP must describe how the student's progress towards the annual goals will be measured and how the student's parents will be regularly informed of such progress (34 C.F.R. § 300.347[a][7]; 8 NYCRR 200.4[d][2][x]). Clearly, the IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The Supreme Court, however, has specifically rejected the contention that the "‘appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n.21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside" as the IEP (Rowley at 192). Indeed, "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the Act" (Kerkham v. McKenzie, 862 F.2d at 886). Similarly, failing grades are not dispositive evidence of a denial of educational benefit (Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 [2d Cir. 2003]). And, even if the record revealed a lack of progress under a particular IEP this too does not automatically render that IEP inappropriate (Antonaccio v. Bd. of Educ., 281 F. Supp. 2d 710, 724 [S.D.N.Y. 2003]). Were the student’s present levels of performance appropriately incorporated into the July 14, 2010 IEP? Turning to the question of E.’s IEP, it is clear that the CSE generated its recommendations in the absence of several current assessments, including the 2010 occupational therapy and assistive technology assessments as well as Dr. H.’s 2010 report. Exh. SD 24. There was no counseling report nor are there counseling goals although counseling is recommended. Tr. at 524-525. Having said this, the IEP reflects consideration of several other current standardized cognitive and achievement scores in addition to teacher reports. Exh. SD 5 at 2. Additional measures of performance are not specifically denominated within the IEP, but are referenced within the document. Exh. SD 5 at 3, 6. Given the Court’s disinclination to consider evaluative material retrospectively, I must limit my review to information known at the time the IEP was drafted and will not address the reading scores obtained in August, 2011. Exhs. SD 28-30. See J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., supra. The District’s Psycho-Educational Report, dated April 7, 2009, reflects measures of both cognitive ability and achievement. While scoring on sub-tests yielded a range of low to average abilities, the manner in which testing was performed is significant. Given within a structured setting, the test protocol for Concept Formation includes immediate feed-back regarding the correctness of each response before a new item was presented. This is particularly beneficial for a student who demonstrates deficits in auditory memory and executive function. Similarly, the use of Cloze technique for Passage Comprehension is designed to reduce student frustration. In doing so, however, it incompletely describes the student’s abilities if further testing continued. November 1, 2011 Tr. at 88, 127-128; Exh. SD 24 at 2. Finally, the record indicates that the significant progress demonstrated by E. on the Measures of Academic Progress (hereinafter “MAP”) were achieved through considerable test coaching. In furtherance thereof, the IEP reports, “After reading the question and being reminded he is generally (emphasis added) able to look at subtitles and know what section to find his answer in.” Exh. SD 5 at 3. These artificial testing accommodations are inconsistent with the manner in which materials are presented to students within the classroom; the standardized scores essentially present a cognitive and achievement profile reflective of an alternate test reality rather than one based upon actual classroom performance and protocol. As such, they must be viewed within context. When given a three minute time limit, measures of E.’s cognitive efficiency fell to the fifth percentile, reflecting a severe inability to rapidly perform automatic cognitive tasks particularly when under pressure to maintain focused attention. Although the IEP clearly notes that E.’s deficits in executive function are a “key factor” impacting his functional ability within the classroom, the IEP does not specifically reflect standardized measures of executive function, nor was testing of auditory memory performed, a sub-test District psychologist K. testified would have been “helpful.” Ibid. at 126. Nevertheless, the omission of auditory memory and executive function sub-tests alone do not rise to the kind of procedural infirmity contemplated by D. v. Pawlet Sch. Dist., supra, and, in any event may not be considered pursuant to 20 USC § 1415 [f][3]B]; see also 8 NYCRR §200.5 [j][1][ii]. E.’s ability to function within the classroom, however, cannot only be viewed in terms of manipulated test scores, especially where integrated classes are anticipated. Low average and average scores yielded within a structured and modified test environment are not necessarily dispositive of actual ability within the context of a larger classroom environment. This is especially true where, as with E., deficits in executive function interact synergistically with other co-morbidities such as ADHD, OCD and a diagnosed anxiety disorder. Clearly, E.’s poor academic performance, notwithstanding extensive support both in and out of school, evidences the underlying severity of his disability. When teacher report is considered, E.’s low average and average abilities appear significantly reduced. For example, E.’s English teacher described the student’s challenges with higher order figurative speech and assignments of more than a few pages, noting that although the student was successful with shorter high interest reading assignments, “Longer assignments (more than a couple of pages) are overwhelming . . . and take quite a while to complete once he gets started, often not being done within the stated deadline. . . It is important, however, to stop every few minutes and ask him to summarize what has happened and what it means.” She described a student who demonstrated disorganized work habits and required at least four times more time 15 to complete assignments, frequently completing assignments late. The English teacher further commented upon the student’s struggle to process visual materials, a deficit evidenced when E. was unable to locate a poem on the front page of a newspaper. Exh. SD 5 at 3. Lagging consistently in reading comprehension over the course of years, E.’s four year leap on the MAP is simply not credible. Exh. SD 5. Similarly, the student’s social studies teacher noted, “It is difficult for him to comprehend his text and find pertinent information to answer directed questions. It takes him a significant amount of time to complete his work and he is highly distractible during that time.” Exh. SD 5 at 3. In math, the content teacher’s descriptions note that E. “requires regular repetition and re-teaching at times of prior learning and new procedures. He also needs reminders to take his time and consider what process he will use.” Exh. SD 5 at 2. Statements such as, “He merely needs to organize his thoughts which are then logically presented,” are indifferent to the nature of E.’s disability in executive function and underscore his need for instruction by special educators. Exh. SD 5 at 2. The record is silent as to the impact of Ms. Staffoff’s reliance upon E.’s resource room teacher rather than the special educator in her own integrated class. It should be noted, moreover, that the student’s social performance is addressed through teacher report and Parental participation. Both the Parents and their expert, Dr. H., participated freely during the proceedings. The record indicates that E. suffers from “ADHD and OCD with E.’s math teacher noted that the student required at least twice as much time to respond than her typical students in an integrated co-taught class. November 1, 2011 Tr. at 33. significant anxiety problems.” Witnesses testified uniformly that the student demonstrates immature social behavior which has been the source of reciprocal teasing. On at least two occasions, E. has been the target of more aggressive bullying, although the student’s reluctance to self-advocate has at times compromised the District’s ability to act expeditiously. The record indicates that the student is cooperative and pleasant, but demonstrates considerable anxiety and self-isolating compulsive behaviors for which he is medicated. Given the limited bi-monthly recommendation for services along with the CSE participation of Dr. H. and the Parents, the absence of a social-emotional/behavioral assessment is not a fatal omission which renders the IEP defective. B. Are the IEP’s short-term goals and objectives appropriate? I find, a priori, that the goals articulated in the July 14, 2011 IEP are inadequate. There are no short-term objectives or benchmarks specifically relating to E.’s progress toward any of these goals. Likewise, there are no mastery criteria and no baseline from which to work. All goals refer to boiler-plate 90% achievement criteria based upon nearly universal “teacher observations.” The absence of this specificity leaves no accountability for measurable improvement, a situation exacerbated by E.’s participation in a variety of de-compartmentalized classes. Notwithstanding the repeated and subjective provision for “teacher observation,” it is unclear how progress will be quantified objectively. The lack of quantifiable goals is particularly distressing where a Parent alleges a history of failure. Beyond this, the lone reading goal is both generic and vague. The goal is not individualized, nor does it contain specific mastery criteria. The evidence indicates that E.’s decoding skills are strong while his ability to utilize figurative language is weak. Independent of the District’s freedom to utilize whatever methodology it chooses, the reading goal does not indicate what aspects of reading will be addressed, nor does it indicate what strategies he will learn. Absent any description of specific reading techniques or goals to be mastered by E. within the IEP, it would be impossible for collaborative teachers to reinforce the methodology to which the student is being exposed. Finally, although the student’s ability to interpret visual information is referenced as a significant weakness, other than encouraging E. to avail himself of “Bookshare,” there are no goals which address this weakness. Exh. SD at 3. A passing reference to pre-reading questions does not constitute a meaningful goal, nor does the District’s intention to implement a plan, as articulated in the CSE Minutes, meet the CSE’s burden. Exhs. SD 5, SD 7. Although math is an identified area of weakness, there are no math goals. This is disturbing, given E.’s deficits in cognitive switching, referenced by D as “getting stuck and not able to apply what he has learned.” The record further indicates that E. has difficulty retrieving concepts previously learned. Nevertheless, there are no goals which provide a maintenance strategy for acquired skills. Exh. SD 5 at 2. While the study skills goals are largely derivative from the “Management Needs” section of his IEP, once again, vague references to “teacher observation” do not adequately enable quantification of E.’s progress. Again, there is no accountability for how the efficacy of these interventions will be assessed. This is particularly important as the student’s poor organizational skills are emblematic of E.’s chief disability in executive function. As such, there is nothing novel about the four study skill goals enumerated in the student’s IEP, including the use of “chunking” and “prioritization” of assignments and graphic organizers; they have been previously implemented, appear duplicative and have been questionably effective. December 1, 2011 Tr. at 1066; Exh SD 13 at 2-3, 7-10. Finally, the writing goal denominates a variety of techniques to which the student has already been exposed. Although the use of scaffolding and guided questions is referenced, the IEP indicates that E. was already familiar with these techniques but did not utilize them successfully. The IEP states, “. . . students were given scaffolded outlines with directed questions and model answers to lead them into the writing of an essay . . . while E. was able to answer the directed questions . . . he did not follow through and use his outline when writing the final project . . .” Aware of E.’s inability to utilize scaffolding techniques, the CSE continued to recommend its use, absent any modifications or measures to assess improvement. November 1, 2010 Tr. at 198. Although organizing written information was “overwhelming” for the student, the goal describes little more than a general view of the writing process. For example, it provides no specifics as to how or what material (eg. narrative, expository, persuasive, literary) will be researched and extrapolated from documents. Similarly, it does not consider how large amounts of information will be organized in view of E.’s demonstrated inability to use scaffolding techniques, nor does it address itself to the use of citations, both articulated weaknesses in E.’s IEP. Exh. SD 5. Given E.’s inability to cope with “longer” assignments of more than a “couple of pages,” there are no objective and quantifiable provisions for assessing progress with larger and more complex written materials such as his Junior thesis. Exh. SD 5 at 4. This is particularly important as the IEP notes that E. was able to locate research articles, but often unable to identify their relevance to the “bigger picture.” Exh. SD 5 at 4. The District’s failure to include counseling goals is additionally significant. The CSE was already aware that the student was socially immature and had been the object of bullying and teasing. The uncontroverted testimony indicates that E. continued to be the object of teasing even within the group counseling setting, and for this reason, the student had stopped attending sessions. In fact, the bi-monthly recommendation suggests that the student’s resistance and his need for academic tutoring had essentially eclipsed the District’s ability to provide counseling services within the school day. Witnesses, moreover, testified regarding the student’s perseverative hand-washing and back-packing behaviors, episodes of giggling secondary to anxiety and inappropriate social behavior. November 1, 2011 Tr. at 219; Exhs. SD 20 passim, SD 5. Given the CSE’s knowledge of E.’s diagnoses of ADHD, anxiety, tic and compulsive disorders along with his history of teasing and inappropriate social behavior, there is no lack of substance upon which counseling goals could be developed. Indeed, the IEP memorializes the student’s sense of inadequacy and his persistent need for assurance. Notwithstanding all of this, the Parent testified that the issue of bullying had largely been resolved in tenth grade. November 3, 2011 Tr. at 695, 702-703. The District was additionally aware that E. was receiving outside counseling services through Dr. Keshishian and others. Exh. SD 20. While there are no formal counseling goals, the IEP’s Social Development section articulates many recommendations which essentially function as goals. Under these circumstances, the IEP’s failure to articulate counseling goals establishes a procedural infirmity, but does not alone provide sufficient reason to invalidate the IEP. P.K. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXUS 90462 (E.D.N.Y.) Finally, although it is clear that the Assistive Technology assessment was unduly delayed during the 2010-2011 school year, the student did avail himself of Dragon Naturally Speaking software in tenth grade. Moreover, the 2010-2011 IEP included a recommendation that this technology be utilized for assignments longer than one paragraph. Exh. SD 5 at 6. Nevertheless, the record indicates that the student remained uncomfortable with the software, preferring to use a computer. In the alternative, E. was offered the use of school computers, a scribe and “Bookshare”. Exh. SD 5 at 3. Although additional software was not attempted, given E.’s challenges, it was not unreasonable to expose the student to one program at a time, deferring text-to-speech technology. In fact, while the Assistive Technology evaluation considered the use of separate text-to-speech software, it did not specifically recommend its use. The assessment did note, however, the limited text-to-speech capacity offered by Dragon Naturally Speaking, the software upon which E. was being trained. Exh. P 9 at 3. Again, the lack of discrete, quantifiable goals facilitates a lack of accountability. However, the absence of these goals does not establish a procedural infirmity which would compel nullification of the IEP. In sum, while individually, many of the procedural infirmities articulated by the Parents do not place the District in abrogation of its IDEIA mandate, in aggregate, this constellation of deficiencies compromises the integrity of the CSE process. There are no math goals although this is an identified area of deficit. While appropriate counseling and assistive technology goals may be extrapolated from the IEP as a whole, reading, writing and study skill goals are vague restatements, duplicative of prior unsuccessful efforts and non-reflective of E.’s identified areas of need; their lack accountability is clear. See 34 C.F.R. § 300.347[a][2]; 8 NYCRR 200.4[d][2][iii]). C. Do the recommendations articulated in the student’s IEP provide FAPE? In his initial May 2010 evaluation, Dr. H. specifically issued two educational recommendations for E. Recognizing that E. might not attend O. following his first acceptance, (although this was Dr. H.’s preference), the witness initially generated a recommendation for “a mix of integrated co-teach classroom support and self-contained 15:1:1 (sic) instruction” for all core classes.” December 1, 2011 Tr. at 900-901; Exh. SD 27 at 15. By July 14, 2011 the witness’ recommendation had changed. In furtherance thereof, Dr. H. testified that the student required a self-contained 15:1 paradigm for core classes, with the exception of English, an area in which E. required greater support. December 1, 2011 Tr. at 952. Instead, the District placed E. in special education integrated co-teaching classes for math and science as well as one general education class for English, a recommendation it believed consistent with its obligation to maintain the student’s placement within the least restrictive environment. Multiple and extensive accommodations were additionally furnished along with assistive technology, two resource rooms and enhanced teaching assistant support. Many of these modifications, including the use of graphic organizers, had been implemented previously with limited and uncertain success. Exhs. P 4, P 5.

The real question is two-fold: (1) whether all of these educational enhancements can compensate for the lack of special education instruction within a small 15:1 class and (2) to what extent can a learning disability be addressed within an integrated classroom? I find, at the outset, that the District’s description of an integrated class as a “small class” is disingenuous. This is particularly so in view of the fact that total enrollment may, by regulation, reach 22 students, albeit with a twelve student special education cap and the assignment of two teachers. In fact, Ms. G. testified that the number of students had been “climbing up,” although she was unaware of the current numbers. November 2, 2011 Tr. at 534-535. Assuming as testified, an enrollment of 18 students, along with the presence of two teachers and a teaching assistant for E., the classroom is no longer small. It is an educational environment in which at least 21 individuals are present, an environment ripe for distraction when a student such as E. It should be noted, moreover, that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of transition issues, such as packing up materials, navigating the building efficiently and regaining focus, are marginalized. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented. Clearly, the delayed feedback, inherent within a larger integrated class, would impact negatively on a child whose deficits in executive function are th described as “key” and whose Visual Motor Processing speed fell at the 5 percentile. For a student such as E., instruction -even within an integrated setting- advances at a Q which far out-strips his ability to keep up. As a result, the student is always struggling to develop foundation skills while others are moving on to more advanced materials. Testifying that “we don’t do a lot of skill-based instruction. A lot of what we are asking E. to do is to apply skills to a different context,” D described an integrated class which, by its very nature, is inconsistent with E.’s need for repetition, practice and consistency. November 1, 2011 Tr. at 55-56. While integrated classes are an excellent idea for many learning disabled children, I am not persuaded that E. is one of them. Since transitioning into high school, the student has participated in integrated and small special education classes with accommodations. During this time, his Parents have additionally provided extensive tutoring support. In ninth grade, E. failed his earth science, English and algebra Regents’ examinations. Although he was ostensibly on track for a Regents’ diploma, the student ultimately received local credits for science and English. The student repeated algebra three times and passed during the 2010-2011 school year. Most notably, the classes in which E. succeeded were French and social studies, smaller classes in which student participation was readily facilitated. Exh. SD 10. During the 2010-2011 school year, E. earned Regents’ credits in French and algebra, having taken math three times. The student’s failing grade on his social studies Regents’ additionally constituted a “low- pass” pursuant to 8 NYCRR 100.5(a)(5)(i)(a)-(e), granting one local credit. December 1, 2011 Tr. at 1057-1059. Notably, the student received passing grades in Essentials of Living and English, both non-Regents,’ non-integrated classes. November 1, 2011 Tr. at 175. Although slated for a Regents’ diploma, E. had only earned three Regents’ credits by the end of his sophomore year. December 1, 2011 Tr. at 1033-1034, 1055-1059. Given E.’s academic history, Ms. G.’ testimony regarding E.’s “option” to receive a Regents’ diploma would appear more illusory than real, notwithstanding the designation on the student’s diploma and the Parents’ assumption. December 1, 2011 Tr. at 1033-1034, 1055-1059. Although the District maintains that E. has been successful, he is clearly struggling to pass his subjects. His status as a Regents’ diploma graduate is in peril, his graduation has been delayed by a year and the level of support the student receives within District and privately 16 has escalated. November 1, 2011 Tr. at 215. Notwithstanding the District’s positive view of E.’s The student has had tutors in math, organization and executive function, and English. November 1, 2011 Tr. at 31, 39; November 3, 2011 Tr. at 713, 789, 804-805. academic success, it continued to augment the student’s program by cobbling together more and more special and general education services17 in an effort to compensate, I believe, for the unavailability of appropriate smaller classes. Since transitioning into high school, the student has participated in integrated and small special education classes with accommodations. Clearly, the record indicates that E.’s academic successes have occurred within smaller classrooms, even when the materials were complex. 18 To begin, E. lacks the foundations in reading, writing and mathematics to function appropriately with mainstream curriculum in large integrated classes. His low average to average standardized test scores are only achieved with considerable 1:1 support and coaching, a scenario inconsistent with classroom dynamics. The student has never met New York State standards in English language arts (hereinafter “ELA”) or math, scoring Level 1 in math (sixth grade, 2008) and Level 2 in ELA (sixth grade, 2007). Exh. SD 14 at 6. Lagging consistently in reading comprehension over the course of years, E.’s nearly five year leap on the MAP is simply not credible. Exh. SD 5 at 3. Although the District now recommends at least four layers of instruction for E. in his integrated classes, 19 this does not necessarily provide cohesive instruction for the student. The sum is, in fact, less than its parts. At some point along the continuum, leveled curricular materials, educational modifications, multi-day testing accommodations and exhaustive private and District tutorial supports render one’s participation in integrated classes more illusion than fact. Given E.’s hyperactivity, severely delayed processing and perseverative behaviors, the required accommodations and curricular modifications in this setting transmute the very nature of an integrated classroom. November 2, 2011 Tr. at 270-271. Although a seamless mesh of accommodations and classroom instruction is unrealistic, at some point an array of modifications and teaching assistants simply cannot compensate for small classes. Beyond E.’s assignment to integrated classes, the student was assigned to a general education English class entitled “English with Tutor” by the District. Given E.’s lack of success in an integrated English class the prior year, the CSE now rejected this placement and moved E. into a mainstream “English with Tutor” paradigm. Acknowledging, “I think there was a known fact there was not going to be a special ed teacher in the room,” Ms. G. believed the English with Tutor’s smaller size, slower pacing and supportive structure would serve E. well.20 November 1, 2011 Tr. at 254-256, November 2, 2011 Tr. at 419-422. Although the District indicated that personnel in this class would utilize a range of special education resources and techniques in

Modern Reading is a general education academic intervention support. The class did not exist, however, at the time the IEP was drafted. Pupil/personnel ratio for Essentials of Living was 15:1 while algebra was 11:2 (November 1, 2011 Tr. at 32). The student described his French and social studies classes as small (Exh. SD 13 at 4.)

Content teacher, special education teacher, teacher assistant and push-out resource room teacher Ms. G. later testified that someone with “a special education degree” might be teaching this course. addition to a 1:1 teaching assistant for E., the IEP does not reference this class other than to indicate E.’s placement. The suggestion that a general education class, supplemented by a range of educational supports, is a paradigm which can supplant the need for special education is unacceptable. The English with Tutor class is not referenced within the IEP as a special education service. The Parents had no guarantee as to how this class would meet E.’s special education needs in any manner, either through class size, curriculum or special education support. Instead, they were compelled to rely upon District promises and speculation, rather than the “four corners” of the IEP. As the more restrictive integrated program had been unsuccessful, the CSE’s recommendation of a less restrictive, mainstream English class appears grounded in administrative rather than educational concerns. Ultimately, the only document upon which the Parents could rely was the one that recommended a general education class, notwithstanding unanimous concerns about E.’s literacy skills. Exh. SD 5 at 3-4. As such, I do not believe the Parents are required to accept an IEP based upon what a school district might or could do (Frank G. v. Bd. of Educ., 459 F.3d 356 [2d th Cir.2006]); County Sch. Bd. of Henrico v. Z.P., 399 F.3d 298 [4 Cir. 2005]). Finally, the allocation of resource room support is unclear. Although the IEP indicates that E. will receive two periods of direct reading support daily, both Ms. F. and Ms. G. later testified that one period would address both executive deficits and comprehension of core content. Exh. SD 5 at 1; December 1, 2011 Tr. at 1043. Given E.’s academic weaknesses, “low cognitive efficiency” and severe executive deficits, his need to access computer terminals and other assistive technology during the day, it is unlikely two reading resource rooms alone could sufficiently address E.’s needs, although this is the student’s mandate. November 2, 2011 Tr. at 395. It is, moreover, telling that even at the point of litigation, District personnel were still unclear as to how E.’s needs would be met. Ultimately, the IEP’s "basic floor of opportunity” must reflect an individualized program likely to provide progress, not regression. Grim v. Rhinebeck Cent. Sch. Dist., supra. Considering E.’s low normal to normal intelligence, I am not entirely persuaded that the District has met its IDEA mandate, particularly when one notes that E.’s academic progress frequently reflects subjective, “local” criteria, rather than standardized Regents’ or Regents’ competency testing for which he is specifically designated on his IEP. The student has achieved some educational benefit, however, beyond trivial considerations. In this sense, I find that the District’s efforts have not been entirely inappropriate and so, viewed as a "basic floor of opportunity,” it does not stand in complete abrogation of its IDEA mandate. (Grim supra; Carlisle Area School v. Scott P., 62 F.3d at 533-34; Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 [D.C. Cir. 1984] [Ruth Bader Ginsburg, J.] (because public "resources are not infinite," federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child").

Point II: Was Normal Howard an appropriate educational placement for E. during the 2011- 2012 school year? Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]). The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. To qualify for reimbursement under the IDEIA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111). Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44. I find, at the outset, that the academic program offered at O. correlates well with the student’s academic needs, as identified in the IEP. Moreover, the small group instruction and specialized reading program by instructors trained in both Wilson and Linda Mood Bell methodology is entirely appropriate for the student. Although the District maintains that O. is not an appropriate placement, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G. at 364, supra; see also Gagliardo, supra, at 112). Enrolled at O. for approximately three months at the time of these proceedings, many of its witnesses opined that E. was still in transition, a fact evidenced by their Progress reports dated October 12, 2011. Reports were often based upon effort, participation and homework rather than substantive improvement. Exh. P 14. While this is not unreasonable following a six week period, there are components of their program which are concerning. Most saliently, the School’s low reading assessments (grade levels 2.7 to 3.7) are completely inconsistent with measures taken by either the District or Dr. H.. November 2, 2011 Tr. at 448. The testimony was silent regarding this discrepancy and, as such, it is unclear whether instruction is reasonably reflecting E.’s literacy skills. In contrast, the District’s suggestion that the student’s entire math grade is based upon homework participation is misleading and inaccurate.

Although O. is state-approved for 12:1:1 classes, E.’s writing class is not staffed appropriately.

Ibid. at 739. This is particularly disturbing where E.’s writing teacher described the reading abilities in his class as “all over the place.” Ibid. at 739-740. Similarly, I am concerned about math teacher Q’s apparent lack of algebra or geometry background. While there is no requirement that personnel employed in unilateral placements be certified, the testimony is silent regarding Mr. Q’s familiarity with these content areas. These factors are components of the equitable considerations herein.

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra, for the 2011-2012 school years? It is clear that the Parents’ concerns about E.’s program and their interest in O. were articulated during the July 14, 2011 CSE meeting. The minutes unambiguously note that the Parents were asking the District to underwrite E.’s tuition there, although at this point, they had not received an acceptance. Similarly, there is no question that the Parents were disturbed about E.’s “major deficiencies in reading and writing.” Exh. SD 7 at 3. Under these circumstances, I do not believe the District’s ability to provide a FAPE was compromised. Although accepted during the 2010- 2011 school year, the Parents continued to work with the District, providing private tutors and extensive homework supervision in an effort to support the District’s efforts. The Parents shared their concerns, worked collaboratively with the District and exchanged their private evaluations. They did not rely upon the District to meet all of their expectations and independently sought outside advice and counseling when able. Nevertheless, the Parents should have advised District personnel regarding their decision to place E. at O. prior to availing themselves of its reading assessments in the summer of 2011. While the M.s indicated that they were still uncertain as to whether E. would be enrolled, their lack of communication must be considered in determining whether there are any equitable factors which militate upon an award of tuition. Conclusion The Parents ’ request for relief is granted in part for the 2011-2012 school year, but must be reduced based upon equitable considerations. Wherefore, it is hereby ordered that: Within thirty (30) days of the date of this Order, the District shall make a payment of $9500.00 to the O. School for tuition expenses incurred by E. during the 2011-2012 school year. This amount shall represent the District’s total liability pursuant to the Parents’ Due Process Complaint and its amendments dated November 2, 2011.

Dated: February 4, 2012

_________________________________________ Lynn Botwinik Almeleh, Esq. New York State Certified Impartial Hearing Officer

Persons in attendance on November 1, 2011

For the Parent:

Law Office of Joyce Berkowitz, M.Ed., J.D., Esq. by Joyce Berkowitz, Esq. Ms. C., Parent For the School District Harris Beach, PLLC David W. Oakes,Esq. D., District Teacher K., District Psychologist F., District Teacher G., Director of Pupil Personnel, District

Persons in attendance on November 2, 2011

For the Parent:

Law Office of Joyce Berkowitz, M.Ed., J.D., Esq. by Joyce Berkowitz, Esq. P., Teacher, O. School Ms. C., Parent For the School District Harris Beach, PLLC by David W. Oakes,Esq. F., Teacher, District Teacher G., Director Pupil Personnel, District

Persons in attendance on November 3, 2011

For the Parent:

Law Office of Joyce Berkowitz, M.Ed., J.D., Esq. by Joyce Berkowitz, Esq. R., Teacher, O. School Q, Teacher, O. School S., Teacher, O. School T., Counseling School Psychologist, O. School Ms. C., Parent Mr. B.., Parent For the School District Harris Beach, PLLC by David W. Oakes,Esq. G., Di rector of Pupil Personnel, District

Persons in attendance on November 30, 2011

For the Parent:

Law Office of Joyce Berkowitz, M.Ed., J.D., Esq. by Joyce Berkowitz, Esq. N., Co-Head, O. School Ms. C., Parent Mr. B.., Parent For the School District Harris Beach, PLLC by David W. Oakes,Esq. G., Director of Pupil Personnel, District

Persons in attendance on December 1, 2011

For the Parent:

Law Office of Joyce Berkowitz, M.Ed., J.D., Esq. by Joyce Berkowitz, Esq. Ms. C., Parent Mr. B.., Parent H., Ph.D., Education Consultant For the School District Harris Beach, PLLC by David W. Oakes,Esq. G., Director of Pupil Personnel, District FROM LERH BLMELEHK ALMELEH,ERQ. FAX NO. : 5163745z (~

....~ ..-

MALIEKALEXHIBI’!: L~S’]’

’v._ P kag2~_s: 0 1. Recommendation [EP Test Modification 3X; 5/30/2011 to Amend ~O 2. IEP 8/30/2010; notation to add to PLEPS

I 1° 3. CSE attendance, meeting notes 8/30/2010 4. IEP12/9108 g p 5. IEP 6/19/07 7 6. IEP Progress Report Grade 10; 6/22/2011 10 7. IEP Progress Report Grade 8; 4/14/09 ~ tg. IEP Progress Report Grade 7; 6/24/08 5 "~ 9_ Office of Assistive Technology Services Assessment Grade 9; 10/18/2010-2/4/2011 7 ~9 10. Request for Assistive Tectmology Evalttation 5/20/2010 6 1 I. Brighton Cicntral School District Report Card Grade 10; 6/2212011 1 I¯ j~ 12_ Brighton Central School District Report Card Grade 9; 6/24/2010 1 Q.,, ~O 13. Brighton Central School District Report Card Grade 8 6/26/09 1 ~14. NormanHoward School Progress Report Grade 11 10/12/2011 1 15. Request to State Education Department for multiple day testing Grade 10; 5/31/2011 16. Letter: Berkowitz to Almeleh re amendment of hearing request, 10/17/2011; Emall Oakes to Almeleh re objection to grant of amendment, 10/18/2011 17. NormanHoward School Etlrollment Contract, Payment Option Fom~ Payment Sichedule; 8/25/2011 __

Footnotes

[1] as developed through the Motor-Free Visual Perception Test Third Edition.

[2] Measures of Academic Progress

[3] The fall administration of the MAP occurred within class. The spring testing was performed in a quiet test room with only a few other students. The witness agreed that E.’s performance significantly improved in a less distracting environment. November 2, 2011 Tr. at 342.

[4] The student had previously attended self-contained classes in middle school.