New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: December 13, 2011

January 5, 2012 Actual Record Close Date: February 15, 2012 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2012

Attorney — Student

Advocate/Attorney — Student

Mother — Student

Director of Admissions (via telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

School Teacher (via telephone) — DOE

Pursuant to the Individuals with Disabilities Education Improvement Act (IDEIA), 20 U.S.C. Sec. 1415 (f), the parents of ., in a letter from their attorney dated September 28, 2011, requested an impartial hearing on his behalf. A pre-hearing conference was held on November 29, 2011. The hearing was held pursuant to the IDEIA on December 13, 2011, and January 5, 2012. The parent was represented by Law Offices of , and the New York City Department of Education (DOE) was represented by , Esq. Lists of the individuals who participated and the documents entered into evidence are included in this decision. Extensions of the Time Lines

On October 24, 2011, the parties jointly requested an extension of the compliance date due to the availability of the witnesses. The extension was granted on October 24, 2011, to January 2, 2012. On December 13, 2011, the parties jointly requested an extension of the compliance date due to witness availability and the need for time to adequately prepare for the hearing. The parties represented that no detriment would be suffered by either party if an extension were to be granted, and that in fact, due process considerations weighed in favor of allowing the additional time for the parties to fully put on their cases. An extension was granted for thirty days to February 1, 2012. Tr. 227-229. Ex. I. On January 5, 2012, the parent requested an extension of the time lines in order to allow time to receive the transcript and file post-hearing briefs. Upon inquiry, no detriment to the DOE or the student were cited. Tr. 466. The extension was granted to February 15, 2012. Tr. 467; Ex. II. On February 1, 2012, and February 2, 2012, the parent and DOE respectively, requested an extension of the time lines due to the date upon which the impartial hearing officer received the copies of their post-hearing briefs and supporting authority as well as the extensive issues addressed. Both parties stated that due process considerations required granting the extension and that the extension would only benefit each of their clients. The compliance date was extended for an additional two days to February 17, 2012. Ex. VI.

Background

old student with a . The classification is not in dispute. (Tr. 45). The DOE's Committee on Special Education (CSE) met on March 8, 2011, to develop an Individualized Education Program (IEP) for the student's 2011-2012 school year. The CSE recommended a special class in a community school with the related services of twice a week for thirty minutes per session in a group of three, once a week for thirty minutes per session, once a week for thirty minutes per session in a group of six, therapy three times per week for thirty minutes per session in a group of six and therapy twice per week, thirty minutes per session, once individually and once in a group of two. Ex. 1-20. The parents allege that the DOE failed to provide their son with a free and appropriate public education (FAPE), unilaterally placed him at The School ( ), a non-public school (NPS) approved by the State to provide special education services, and requested this impartial hearing seeking a Nickerson letter or tuition reimbursement for the 2011-2012 school year. Ex. 12.

According to the parent's testimony and information recorded in the Social History he has had issues since he was old. At he began . Privately, he . In October 2009, was evaluated by the Committee on Preschool Special Education (CPSE) and was found , , and special education itinerant teacher (SEIT) services Tr. 416, 420; Ex. 5-2. for the 2010-2011 school year. Tr. 421

A November 8, 2010, School Teacher Report, completed by , indicates that at that time, in mathematics, and his independent level was His strengths were described in terms of the skills he has mastered. His needs reflected that his receptive language issues often make it difficult for him to grasp important concepts and directions. He requires a and such as to help remind him of learned strategies or to encourage him to engage in challenging academic tasks. Notably, if ― struggles to produce the correct answer on his initial attempt, he often .‖ Ex. 7-1.

In reading, his estimated independent grade level was and his instructional level was . As with Math, the teacher noted that as a result of his and often ― requires to remind him of learned decoding strategies.‖ Additionally, the teacher noted that when the , ― he ‖ further compromising his ability to perform the task, and necessitating the intervention of adult support to complete the task successfully. In writing, ― with adult support, [ .] is generally able to generate writing topics and produce visual stories after being provided with a teacher model‖ and ongoing prompts. Ex. 7-2.

skills are impacted by his issues with which cause him and . At times, his difficulties with lead him to in large group discussions. .'s are and processing, as well as his . ―

His peer relationships are sometimes with . During unstructured time, the teacher noted, . often will choose to spend time or . Ex. 7-2. His teachers continue to work with him ―.‖

According to the report, . is highly motivated by the because of his strong desire to please his teachers. He in relation to and will request repeated confirmation that he is following the rules. If he is , ― he can , and that his with him.‖ Ex. 7-3.

's are noted to be below his peers. Ex. 7-2.

The teacher noted under a section called special strategies: ― Due to [ .]'s , he benefits from a highly structured learning environment, where expectations are clear. [ .] also responds very positively to teacher support and modeling before and throughout academic tasks.‖ Ex. 7-3.

On December 6, 2010, Dr. observed for one hour and completed a Classroom Observation Checklist. Ex. 6. She observed him during a social studies class and noted him to be an students. She found his . He was independently and followed class rules. He was noted to when the teacher could not get . Ex. 6-1. Dr noted that he needed ― the degree of and instruction that a special ed student in a special class would require.‖ Ex. 6-2. The observation also noted; ―

All students worked behind dividers on the table to minimize distractions.‖ Ex. 6-2.

On January 5, 2011, observed the student at for twenty-five minutes during reading and for an unspecified amount of time in math and for ten minutes in a science class, after which he left to receive a related service. Ex. 6-3. Ms. . as easily engaged, able to understand , with an . She wrote that he speaks in and is . Ex. 6-3. She noted no during reading, but noted that he was ―‖ in math. Ex. 6-3. He worked independently with some prompting. Ex. 6-4. Ms. noted that he needed less individual attention than others in his class, but ― still does require some individual reinforcement.‖ Ex. 6-4. During reading, Ms. observed . focused on the activity of , and when he finished, he ― waited calmly to be given the next activity.‖ Ex. 6-4.

A progress report for September 2010 to January 2011 notes that the student requires ― clinician support to maintain the and limit irrelevant comments. [ .] is also working on turn-taking during conversation; he tends to be very eager to participate in conversations and shows when it is his turn to talk. and prompting has helped [ .] interrupt appropriately as well as advance the conversation with comments and questions.‖ Ex. 9.

A Update, dated January 2011, notes that [ .] has been seen in a small group, is an eager member and participates in all group discussions and activities. He is actively developing appropriate social skills. The social worker who wrote the report stated that the student will ― benefit from activities that focus on social skills, collaborative and imaginary play, and conversation skills with other children.‖ Ex. 10. The recommendation was to terminate and once a week for thirty minutes in a group of six. Ex. 10.

A January 2, 2011, indicates that the parent referred her son for evaluation ― due to concerns about auditory processing, articulation and word retrieval.‖ In addition, the parents were noted as having concerns about his fine motor functioning and kinesthetic awareness. Ex. 5-1, 5-3. ―

He is who has made friends at school.‖ Ex. 5-3.

A was conducted on January 11, 2011. On the

he received a full scale , placing him at the Range of intelligence. Ex. 4-4. His scores also fell within the Range. Ex. 4-4.

On the Tests of Achievement, 's performance, compared to others at his age level, were (grade = ) in Brief Reading, (grade= ) in Basic Reading Skills, Average (grade= ) in Brief Math and (grade = ) in Brief Writing. Ex. 4-3. On the reading sub-tests . scored or on LetterWord Identification, or on Word Attack, and or on Passage Comprehension. Ex. 4-3

On tests related to Oral Language Skills, .'s scores showed that he functioned at the range for and the Range for Picture Vocabulary, both .

In mathematics, . scored in the Range in Calculation skills ( . and in Applied Problems, he scored in the Range ( ) as well.

For Written Language Skills, .'s standard score was in the Range on the Writing Samples sub-test, ( ). In Spelling, his score was ( ).

The results of the Visual Test reflected deficits that indicate ― which .‖ Ex. 4-4.

The evaluator noted that the student was . His was was understandable. ― When confronted with challenging items, [ would attempt to the best of his ability. [ was related demands generally with some repetition of instructions. He worked at an average pace and completed all items.‖ The evaluator stated that she believed the evaluation results ― represented an accurate estimate of [ ] true intellectual abilities.‖ Ex. 4. In summary the evaluator wrote: ―

Clinical interview and projective testing indicates [ .] is able to interact appropriately one to one with peers and adults and display age appropriate social skills.‖ Ex. 4-5.

On March 4, 2011, the parents signed an enrollment contract for accepted by on March 10, 2011. The contract states that the full tuition of $ is the legal responsibility of both parents Ex. C.

The March 8, 2011, IEP reflects the standardized scores from the testing done in January 2011 for the students present reading, writing, and math academic performance. Ex. 1-3. His academic management needs are: ―

[ requires with a small teacher to student ratio on a full time basis in order to meet IEP goals. benefits from having information presented in smaller more manageable pieces with visual supports.‖ Ex. 1-3.

On the IEP, .'s present performance includes the following information:

―

RECENT USING A INTERVIEW AND PROJECTIVE

TESTING INDICATES THAT [ .] IS ABLE TO INTERACT APPROPRIATELY

WITH PEERS AND ADULTS AND DISPLAYS AGE APPROPRIATE SOCIAL

SKILLS, WITH NO . HOWEVER, HIS TEACHER REPORTS THAT [ .] HAS

ENVIRONMENTS. HIS TEACHER ALSO REPORTS THAT WHEN PRESENTED

WITH . WHEN HE , HE OFTEN AND CAN WHICH ALSO REGQUIRES

[SIC] WITH THE . HE CAN AND AND , AND OFTEN OPTS FOR GAMES

AND ACTIVITIES THAT CAN BE DONE IN ISOLATION.‖

Ex. 1-4.

The management needs section notes that the student management techniques incorporating a consistently throughout the school day, as well as and support, including and . Ex. 1-4. This section of the IEP also notes that the student requires . Ex. 1-5.

The needs section of the IEP notes that in spite of delays which necessitate therapy, the student is able to participate in (according to his November 17, 2010 physical examination). Ex. 1-6.

The March 8, 2011, CSE minutes have recorded instructional levels for independent reading at a instructional level. The instructional level for math is noted as . Ex. 2-3. reading group has children. Ex. 2-4. His reading is very structured. Ex. 25, 2-6. He is in a group of four and one teacher for math. is recorded as saying that ―– . He comes . He can do a .‖ Ex. 2-4.

By e-mail,dated March 9, 2011, the parent wrote to Dr. and informed her that she did not agree with the CSE's recommendation made at the CSE on March 8, 2011. She stated that she feels ―and such as .‖ Ex. F. She also stated that she ― will consider any placement the DOE feels may be appropriate for [ ].‖ Ex. F. The parent also ranked three public schools Dr. had discussed for her son based on ― distance from our home alone-since I am not allowed to visit the schools or discuss the individual program offerings....‖ Ex. F. Dr. responded by e-mail dated March 11, 2011, noting the parent's disagreement with the CSE decision, and thanking the parent for her school preferences as well as her willingness to consider any DOE placement offers. Ex. F.

The DOE sent the parents a Final Notice of Recommendation dated July 11, 2011, listing the recommended classification and program as well as a site offer at , , . Ex. 3.

By letter addressed to at the CSE, dated July 19, 2011, the parent expressed her concerns about the CSE's recommended program. She informed the CSE that she did not receive a placement notice until the same date as the letter. The parent indicated that she left messages for the contact person on the placement notice and a message at the proposed school. She requested a meeting with the DOE personnel who recommended the placement in order to better understand how the placement would meet her son's needs or, alternatively, written information about the school and proposed class. The parent informed the CSE that the parents are holding a , but that they are ― completely and would be willing to forfeit our deposit if an appropriate public placement were offered.‖ Ex. D

By letter dated August 24, 2011, in a letter from the parents' attorney to , CSE Region Chairperson, the parents notified the DOE that they intended to place their son at the ( ) for the 2011-2012 school year and would seek funding for this placement from the DOE, based on a denial of a free and appropriate public education (FAPE) for their son unless a new IEP recommending ― an appropriate full time special education program and placement‖ was developed. Ex. A.

By letter dated September 28, 2011, the parents, through their attorney, requested an impartial hearing alleging a denial of FAPE for their son on procedural and substantive grounds. Ex. 12. The parents allege that the composition of the March 8, 2011, CSE team was flawed since no qualified general education teacher was present. Additionally the parents assert that they were denied the opportunity for meaningful participation in the meeting because they were not at all involved in the creation of the goals and the DOE's CSE representatives did not allow their son's teacher to fully explain the student's needs either by talking amongst themselves or cutting the teacher off because of ― time constraints‖. Substantively, the parents claim that the recommended special class in a community school is inappropriate because it is insufficient to meet .'s needs and is not reasonably calculated to confer an educational benefit to him. Also, the parents assert that the proposed class cannot provide . with a suitable and functional peer group for academic or purposes. Ex. 12.

By letter to at the CSE, dated October 5, 2011, the parent indicated that she visited the proposed school and classroom on September 12, 2011. She noted that the proposed class had only students enrolled and these students had ― significant ‖. In her view, the teacher ― was working extensively on classroom management skills.‖ According to the parent, the teacher of the proposed class told her ― that there was a broad range of functionality in the class, with issues from to an , as well as .‖ The parent found the range of and the for her son to be appropriately placed in the proposed class and formally rejected the placement. Ex. E. DOE Witnesses

Dr. , a school psychologist, testified that she is employed by the DOE and works at the CSE, as a case manager for several non-public schools. Tr. 58, 60. She testified that she is familiar with because she completed an observation of him in December 2010, in preparation for the March 8, 2011, CSE review and sat as the school psychologist at the review. Tr. 61. Dr. testified that the purpose of the meeting was an annual review. She added that the CSE had to do a more extensive review since the student's parents had placed him at , a non-public school, the year before, and the CSE was required to determine an appropriate recommendation for the 2011-2012 school year. Tr. 61.

Dr. testified that chaired the March 8, 2011, CSE meeting and took minutes. Tr. 62-63; Ex. 2. Dr. testified that prior to the meeting she reviewed documents that also were reviewed at the CSE meeting including: a evaluation (Ex. 4); a social history (Ex. 5); classroom observations done by Dr. (Ex. 6-1; 6-3); a teacher report (Ex. 7); an report (Ex. 8); a report (Ex. 9); a update (Ex. 10); and a exam (Ex. 11); Tr. 65-68, 95. Dr. stated that this was all of the evaluative information necessary to understand the student's needs and plan for him appropriately. Tr. 70.

When asked whether a general education teacher was present at the meeting, Dr. answered: ―

Well is duly certified as a general ed. teacher and a special ed. teacher.‖ Tr.

71. She acknowledged that Ms. did not sign in as a general education teacher and stated that she did not know if Ms. participated at the meeting as a general education teacher. Tr. 129. Nor did she know when the last time was that Ms. taught a general education class. Tr. 129. Dr. testified that the CSE recommended a special class in a community school where . would be in a school building with a mix of classes, would be in classes with general education students for his specials such as art, music, and physical education and receive differentiated instruction as well as multi-sensory methods. (Tr. 77-78). In the case of ., Dr. explained that differentiated instruction would mean visual supports, . particularly with the use of manipulatives, ― instruction broken down into smaller pieces‖, and scaffolding of the steps in a lesson, because of his and ―‖. Tr. 79. Dr. described the student's strengths in the context of seeing him as ― cognitively intact‖; his ― intellectual potential is right where it should be relative to kids his own age.‖ Tr. 107. .'s word attack and math skills (computation and problem solving) both were in the range. His passage comprehension was in the range, but at the lower end, so Dr. viewed that as a relative weakness. Tr. 107. Given those academic strengths and his cognitive ability, the CSE believed that . would ― be able to manage a class with upwards of children and one teacher.‖ Tr. 108.

Dr. testified that she observed . at during different activities where there were six to twelve students at any given time. Dr. was present during social studies and when the class was getting ready for dismissal. Tr. 140-141; Ex.6-1, 6-2. The social studies class had either one or two adults. Tr.142. In this setting, Dr. observed that the student needed some supports. Tr. 142, 164-165. conducted a second observation and observed . in a setting. She observed him in need of individual reinforcement, but noted that he required less individualized instruction than other students in the class. Tr. 143, 165; Ex. 6.

Dr. agreed that the student had the academic management needs listed in the teacher report, ― exhibits slow , needs, and exhibits with working memory‖ . Ex. 7-1; Tr. 143-145. These were not incorporated into the academic performance section of the IEP, but reflected and addressed in the goals, according to Dr. . Tr. 144, 167, Ex. 1-11. The IEP does note that .'s working memory is a in the range. Tr. 167-168; Ex. 1-3. Additionally, the teacher report statement that . often needs instruction was not directly reflected in the academic performance levels or management needs section of the IEP. Tr. 145-146.

Dr. testified that the meeting began by asking the parent about her concerns, followed by a review of the social history. Tr. 90-91; Ex. 2-1. Next the report was reviewed, followed by contributions from the student's teacher and and . Dr. then ― went over‖ the related service provider reports. Tr. 91. The IEP document then was looked over and the recommendation was made. Subsequently, as per a new Standard Operating Procedural Manual, Dr. asked the parent to rank, in order of preference, a list of three classes that were available on the date of the CSE meeting. Tr. 92-93, 155-156. Dr. explained that the CSE was required to submit this information to the placement officer with the IEP, but it was not considered a formal offer of any sort. Tr. 92-93. The CSE had only the information posted on the website for these three schools. Tr. 156. Dr. recalled telling the parent, who wanted to visit the schools before ranking them, that it was premature to go visit the schools before receiving a formal offer through placement. Tr. 157.

The CSE determined academic deficits by looking at the evaluation and teacher report, as well as listening to what the teacher said during the meeting. Tr. 98. The CSE included the results of the psychological testing on the performance levels section of the IEP because, in Dr. 's view, the results provided a standard score, which she considers the most reliable measure of how the student is performing compared to his peers, as well as a range. Tr. 99, 132; Ex. 1-3. She views the standardized scores as most reliable because they are objective, ― not as prone to bias or error‖. Tr. 101. She included and views the teacher estimates as ― exceedingly helpful because they give us an idea of where the child is functioning on a day-to-day basis in the classroom.‖ Tr. 100. Dr. noted that the standardized scores were very similar to the performance reported by the classroom teacher at the meeting. The standardized scores were higher than those in the teacher report (Ex. 7), but she noted, those levels were reported in November 2010, months before the March 2011 meeting, and reflected that the student had made ― great progress‖. Tr. 100. Dr. testified that Mr. did not think that the reading and math scores reflected an accurate sense of how the student performed day to day, but when the CSE asked him what the levels were and he told them, the levels ― did coincide‖. Tr. 174.

Dr. acknowledged that told the team that the scores on the evaluation were not an accurate reflection of the , but added that there was more of a correlation than Mr. saw. Tr. 132. Mr. reported in the , but the reflected that the student was . Tr. 133. She also thought that Mr. comments took into account the student's with writing as well, and explained that spelling and mechanics often are not taken into consideration when the standardized tests are scored ― which may explain why it's inflated.‖ Tr. 162. She stated that the IEP statement that .'s writing score is in the ―‖ is ―.‖ Tr. 162-163. Dr. testified that Mr. spoke about writing deficits that warranted including a writing goal in the IEP. Tr. 162-163. Dr. testified that no other standardized scores were being ―when he was giving his oral report‖ to the CSE. Tr. 173.

The CSE addressed the student's academic deficits through the recommended management needs including a highly structured class environment with a small student to teacher ratio with clear expectations, breaking information down into smaller units, and in the goals that were developed which included , a , frequent review and teacher modeling. Ex. 1-3; Ex. 1-7; Ex. 1-8; Tr. 103-104. These approaches address both the as well as his relatively visual working memory (as reflected in his performance on the and comments in the teacher report). Tr. 106.

The CSE addressed his and deficits within the IEP by including a behavior modification reward system, teacher modeling, . Tr. 109; Ex. 1-4; 1-5. T he student's classroom teacher informed the CSE that the student responds well to a positive reward system and consistent praise, and performs well when the work expected is modeled. Tr. 110-111. Dr. noted his strengths in the social domain as being a ― very enthusiastic learner‖ and a student who ― puts forth great effort in whatever he does‖. Tr. 112. The reported that the student did not ― exhibit any overt signs of or and that . ― had the capacity to interact appropriately with adults and peers.‖ Tr. 112. The CSE observations and the mother reports recorded in the social history reflect a social boy who is able to make friends. Tr. 112-113.

Dr. testified that developed most of the goals in the IEP and provided them to the CSE within several weeks of the meeting. Tr. 114, 151. Everyone at the meeting was provided with a draft of the goals. Tr. 115. Each and every goal was not reviewed at the meeting; in Dr. 's view the goals reflect the in depth discussion at the meeting about the student's and the teacher report. Tr. 114, 151-152. Dr. testified that the goals are appropriate because ― they do a very, very good job of looking at what his and what kind of strategies the teacher can use in order to help increase his level of functioning‖ in all areas. Tr. 115. No one expressed concern about any of the goals at the meeting. Tr. 115. The student's were addressed in the goals from organizing an idea to the mechanics, as were his with limited group participation. Tr. 116-118. Dr. testified about the goals, what deficits each addressed and how. Tr. 118-122; Ex. 1-14, 115

Dr. testified that .'s shaped the CSE recommendations because they thought he would be able to handle a setting for most of the school day and would be ― capable of functioning in the gen. ed. settings for the specials and recess and lunch.‖ The IEP itself reflects the CSE's judgment in this regard as it includes . in a general education setting for non academic areas. Ex. 1-20; Tr. 123-124. Dr. testified that she agreed that a special class in a community school, as recommended by the CSE for the 20112012 school year, would have provided meaningful educational benefit to . because ― throughout the meeting it was emphasized by the teacher of how he needs a smaller class, even in the areas that he is doing well in. So, we honored that, based on his academic profile. Also, cognitively, he was intact, which spoke to us of being able to function in a setting in a community school.‖ Tr. 81-82. She further explained: ―

Well that fairly across the board, his standard scores were in the range. With the exception of working memory, which was a standard score of which is actually just point being So, he's a child who, his intellectual potential is where you would think it would be given his age.‖ Tr. 82. He needs the smaller class as recommended by the teacher mostly for the but ― and some of his academic ability made him a candidate to be able to function in a special class, with one teacher. He didn't need the extra support of another adult in the room, which would be a . The CSE also thought that he ― would be able to function in a limited way with supports in a gen. ed setting for the specials, the art, the physical education, and music, as well we[sic] lunch and recess.‖ Tr. 83. She explained that she meant that for most of the day he would be in the smaller setting with supports ― for the more demanding aspects academically and also for his well being and he would have the opportunity to interact with general ed. students, with support, in a larger setting. Tr. 84. Dr. was not concerned that . would be moving from the to a relatively larger community school because '‖or most of the day he would be in a smaller setting‖ and he ― would have a lot of support in being able to negotiate that larger setting‖ from the special education teacher, the , other related services providers, school staff and the general education teacher in those classes. Tr. 125.

Dr. testified about the rationale for the recommended related services. Speech and language were offered because of the student's and skills. recommended because he has , as well as a . Tr. 93 Despite recommendation to end individual counseling, Dr. and Ms. decided to continue it because they were concerned about the that the classroom teacher attributed to the student, as well as his reactions to and some . Tr. 93-94, 108-109. Based on the report from the student seemed to be benefiting from the he was receiving so the CSE decided to continue it. The was recommended to ― and , as well as . Tr. 111. As per the related service provider recommendation from . was recommended to receive because of his concerns. Tr. 93.

Dr. testified that the CSE considered a recommendation of a collaborative team teaching (CTT) class for , but thought that the program would be ― too large a setting, and would be for him‖ ― even though cognitively he's intact, and in many ways capable academically‖. Tr. 83-84. Dr. stated that the mother wanted her son to stay at for one more year ― and that perhaps after that he would be ready for a .‖ Tr. 85. The CSE also spoke about the special class in the community school, , but the CSE thought he ― was able enough to be able to function and do well and make meaningful progress without an extra adult in the room.‖ Tr. 85. In Dr. 's view, ― would be several notches above that‖ and the team had ― a very lengthy discussion about his performance at and whether or not that would be a possibility‖ as the team could have deferred the case to the Central Based Support Team (CBST). Tr. 158-159.

Dr. did not think that it was necessary for the student to remain at . She felt that the student was ― doing very well‖ based on her observation which was confirmed by 's observation a couple of weeks later. The test results in decoding and math ― coincide with what the teacher said during the meeting‖...so Dr. viewed ― as a student with a lot of strengths, and [she] thought it would be unwise and a disservice for him to be in such a restricted setting with only special ed. students with no opportunity for interacting with non-disabled peers.‖ Tr. 86-87. She further viewed the as a good ― bridge‖ from a non-public school setting to an even less restrictive setting like a . Dr. testified that the CSE considered the teacher's concerns about , which mitigated against a recommendation for the CTT class. Nonetheless, the CSE felt that he had enough strengths to function in a less restrictive setting than . Tr. 88-89. There was nothing in the student's profile that suggested to Dr. that he could not make meaningful progress in the recommended setting. Tr. 126. The change in program as reflected on the

IEP, Ex. 1-2, ―

was based on the fact that he had shown improvement, certainly from the beginning of the year at in September to when we had the conference in March. It was based on our professional opinion that he didn't require the extra adult in the room. A 12:1 setting does not preclude instruction when necessary.‖ Tr. 147.

Dr. recalled that the parent disagreed with the recommendation and the CSE acknowledged her position. She stated that the parent said that ― she would be willing to look at any program that the DOE might offer and that if she thought it was appropriate that she would accept it.‖ Tr. 87-88, Tr. 125.

Ms. testified that she is a licensed special education teacher in a class at . Tr. 181, 184, 194. At the start of the school year five students were enrolled in her class. Tr.

248. At the time of the testimony there were seven; six are classified as and one is classified as . Tr. 183, 193-194. A recently enrolled student is while the rest of the class is six years old. Tr. 194. On the first day of her testimony, Ms. testified that six of the students were ; on the second day of testimony the had left the class and another enrolled. Tr. 194, 276. The curriculum taught is . Tr. 248. Ms. testified that in terms of the students' actual functioning in math and English Language Arts (reading and writing), their skills range from the to . Tr. 195-196, 266. In September, in decoding, students were at a , at a , and at a or grade level. Tr. 277-278. In reading comprehension, were at a and at a . Tr. 278-279. In listening comprehension the skills were a , with students at a level. Tr. 280. In writing, students were at a level and at a level. Tr. 286. In math, were at a level and at a level. Tr. 289.

Ms. teaches the students reading, writing, math, science and social studies. Tr.

197. The class, as a unit, goes to special classes with either a regular education class or a CTT class. The teachers of those classes inform Ms. of any concerns that come up. Ms. communicates regularly with the related services providers as well as the specials teachers to modify the classes to meet the students' needs. Tr. 198, 222.

Ms. provides whole group and individual instruction in reading to the students. Tr. 186. The students have books to read independently at their own level, and during that time Ms. has conferences with the children, rotating around the room. Based on those conferences she determines the focus of the shared reading lessons. Tr. 186, 189. Writing instruction is provided using the workshop model; first there is a whole group mini lesson which is followed by one-to-one conferences and independent work. Tr. 186. Math instruction also uses the workshop model. The class uses the program which is ― very hands-on‖ and the instruction spirals through the lessons, circling back to the main ideas. Tr. 187, 192. In each of these academic areas, when the students are finished with their independent work, if they are not having a conference with the teacher, they go to one of several ― centers‖ set up in the room and work with other students on activities designed to reinforce concepts in the lessons. Tr. 186-190. During reading instruction, when all of the children are working at the centers, Ms. works with small groups of children who are on the same level on guided reading. Tr. 190. Ms. positions herself in the room so that she can observe the independent work while teaching a group or individual student in order to keep the students on task, if necessary. Tr. 272-273.

Ms. has conferences with her students daily in math, reading, writing and science. Tr. 205-206. The amount of time she spends with each student daily varies depending on need, ― but by the end of the week children have been seen repeatedly‖. Tr. 259, 271-272. When Ms. works individually with a student, the other children are working at ― centers‖, by themselves. Tr. 260-261. Ms. testified that during the conferences she focuses on the students' IEP goals. Tr. 216. She reviewed .'s IEP goals and thought that she would have been able to address them in her class, giving specific examples of when and how during the course of her instruction certain goals would be addressed. Tr. 215-220; Ex. 1-7, 1-8, 1-9. Based on Ms. with the related services providers in the school, she also thought that 's related services goals would be addressed. Tr. 220.

Ms. testified that she uses the students' IEPs to determine what she will be teaching to the group as a whole and for each individual student determines ― how can I best teach this child through their areas of strength.‖ Tr. 200. As required by each student, among the approaches Ms. uses are visual cues, scaffolding the lessons, multisensory instruction, teacher modeling, repetition and review, and positive reinforcement. Tr. 201-205. Ms. uses a behavior modification program in the classroom with points and a visual component so that the students are constantly aware of their behaviors. Tr. 204-205. The program is modified for each student based on that student's ― amount of self-control‖. Tr. 205. Based on what was written on the IEP, Ms. thought that she would be able to use the above approaches and strategies for Tr. 220-221.

Regarding the behaviors of the students in her class, Ms. testified: ―

The behaviors are expected in a 12:1, nothing out of the ordinary. It hasn't interfered with the learning.‖ Tr. 194-195. Ms. testified that some of the students in her class exhibit behaviors, i.e., ―

...we have what are typical behavior kids in the program. A couple of my kids are .‖ Tr. 249. She stated that the ― but they are typical for that particular program.‖ Tr. 250. The students sometimes , ― but ‖. She described the behaviors as ― [m]ostly snatching of toys and arguing over typical things...but not physical behavior where any kid has been hurt or injured....‖ Tr. 251. She stated that there a couple of students ― that are very loud‖. Tr. 251. For some their issues with to a about the volume of their voices and it is addressed in the class. Tr. 251. Ms. described of the children as as very . Tr. 261-262. By ―‖, Ms. meant that the students in her class are ― less independent that [sic] the children in a general ed grade class. They need . They need more attention from the teacher, and...if they're in a very large group, they easily get lost.‖ Tr. 274-275. Ms. explained that by use of the word ― typical‖ she meant ―T ypical of their age range. Typical of that grade.‖ Tr. 267.

Ms. addresses by finding a student who is doing the right thing and praising that child. That child becomes a role model. Tr. 267-270. Additionally she uses with a point system. Tr. 267-268. To help the children control the volume of their loud voices she uses a as well. Tr. 268-269. Ms. stated that the , but ― it's addressed right away and we get back to work, but it's not something that's keeping me from teaching or from the tasks, from the kids completing the task at hand.‖ Tr. 269. Ms. testified that if she has concerns about , she calls on help from a school counselor. Tr. 262.

The students are able to follow directions with repetition. With teacher guidance they can line up and remain in line. They can take turns. Tr. 252. In September, of the five students in the class, four were physically on the same level and one had and down the stairs and . Tr. 293.

All of the students are verbal. of the students have as their native language and were beginning to speak in phrases at the time of Ms. 's testimony.

students are very verbal and have age appropriate vocabulary. Tr. 253. The class range of verbal ability is from two and three word utterances to lengthy conversations. Tr. 253-254. None of the students are classified with autism. Tr. 254.

Ms. thought that at least nine classes, K through second grade eat lunch together. Tr. 255-256. Each class has to students. Tr. 256. At lunch and recess, the students are with ― high school aids‖, a couple of whom have worked with special education children. Tr. 199, 258-259. Ms. does not accompany the students to lunch and could not answer how many paraprofessionals are in the lunch room with the students. Tr. 258. She testified that the main concern about the students' behavior in the lunchroom is that they ; they like to . She was told by the people in the lunchroom that one solution was to separate two of the children at separate tables. Tr. 258. Otherwise, she believes that the than that of the general education students in the lunch room. Tr. 270-271.

Ms. testified that she reviewed .'s IEP. Based on the descriptions on the present performance levels in academic areas on the IEP, Ms. testified that . seems similar to the students in her class, with the exception of .'s writing levels which are higher. Tr. 208-209. His management needs listed on his IEP are similar to those she uses in her class. Tr. 209-210. Ms. testified that in the realm, like ., some of the students in her class are capable of interacting with peers and display age appropriate social skills. Tr. 210. Some students related to to those described about Tr. 211. Ms. testified that she addresses these through a number of strategies including . Tr. 211-212. Ms. also regularly collaborates with the counselor or social worker to address . Tr. 212-213.

Ms. testified that . could be provided with his related services mandates at the school. Tr. 213-215. She also noted that his is similar to most of the students in her class. Tr. 213. The Parent's Case

Ms. , testified that she is an attorney with the Law Office of and Associates and has represented the student's family for over a year. Tr. 308-309. Ms. explained that she attended the March 8, 2011, IEP meeting, with the goal of having the team draft the student's IEP to recommend a New York State-approved, non-public school ― so we could avoid having to go to hearing....‖ Tr. 309, 319. Ms. s expectation was that if the CSE deferred the student's case to the CBST, the student would be returning to .

Ms. testified that the CSE meeting lasted short of an hour. It was called to start later than scheduled and ― then we were once the hour clicked to whatever the next hour was because they said they had another group of parents waiting and didn't have any more time for our meeting, so they stopped it abruptly.‖ Tr. 311. Ms. testified that , who chaired the meeting, introduced herself as a special education teacher. Ms. believed she served in that role as well as the district representative at the meeting. Tr.

312. Ms. did not tell anyone at the meeting that she would substitute for a general education teacher. Tr. 312. Ms. recalled that the parent member did not participate in the meeting until the last few minutes when she was asked whether she agreed with the recommendation and she indicated that she did. Tr. 313.

Ms. testified that the student's teacher, ,―

tried to describe [ .'s] needs, how his needs were being met, the techniques that were working with him, his current levels, typical indicators that teachers are asked when they attend these types of meetings in my experience, but was repeatedly cut off by [sic] during this meeting so he wasn't—although he spoke, he was not able to finish his thoughts I would say more than of the time.‖ Tr. 313. She also stated that when was speaking, Ms. and Dr. ― were often speaking to one another as far as I could tell about unrelated subjects and not listening to what was saying.‖ Tr. 313-314. Ms. testified that to her recollection, Ms. ― was speaking near constantly during the meeting.‖ Tr. 327.

Mr. did give input as to where the student was functioning. Tr. 322. ―

He was discussing reading, writing, and he talked for quite some time about his math skills, where he was functioning in math.‖ Tr. 325-326. He gave very limited opinion about what the appropriate recommendation would be. Tr. 322-323. He ― voiced that he had never seen the child in a special class in a community school setting, but he indicated, obviously speculative he did not feel it would be appropriate‖ Tr. 323. He gave a limited number of reasons as to why that was his opinion. Tr. 323. ―

He felt that [ .'s] would cause him to essentially shut down in that type of setting. He felt that if [ .] was not in a placement with similarly bright students that he would not have appropriate peers both from an academic standpoint as well as a standpoint. He also felt that [ .] required significantly more support than a would offer.‖ Tr. 323-324. Ms. also recalled Mr. discussing ― that exposure to new or novel subject matter was often very intimidating for [ .]‖ Tr. 326-327. The student needed quite a bit of support for these circumstances as well as for his anxiety. Tr. 327.

Ms. testified that only the DOE team participants agreed with the recommendation. Tr. 314, 321-322. The other participants ― repeatedly....discussed that [ .] required placement with students who were of similar . He's a very , and it was repeatedly noted that and needed to be placed with student's of similar needs and academic levels as well as . [ .] has significant , so there was great concern from his teachers and the individuals who participated from .'s] mom that placement in a setting where he would not be with similar peers would be detrimental to his education.‖ Tr. 315.

Ms. testified that she, and the mother all asked the team to consider deferring the case to the CBST for recommendation for placement in a New York Stateapproved, non-public school. Tr. 315-316. Ms. testified that the team did not consider it. Tr. 316. She testified that Ms. ignored her request for the team to consider a CBST deferral and that Dr. stated that they would not consider it. Ms. stated that at the end of the meeting when the parent was asked to rank the three schools with seats available on the day of the CSE meeting without having an opportunity to visit those schools, the parent ranked them by proximity to her home. Tr. 317.

Ms. , the Admissions Director of testified that is a New York State approved private school specializing in the education of students with and for grades . Tr. 339. The school accepts students who have an to range IQ. Tr. 339. At the time of the hearing, students attended . Tr. 342. The is ungraded and the students are each. Tr. 344. Ms. testified that students in the elementary school are grouped first according to their chronological age, and then broken down into smaller groups based on their reading and math levels. Tr. 344. The classes have students with head teacher and assistant teacher. Tr. 344. She testified that the tuition for the 2011-2012 school year is $ Tr. 345. She testified that there is about a$ difference for the State rate. Tr. 351.

Ms , .’s head teacher at , testified that she has known [ .] since he entered her class in September of 2011. Tr. 358. She testified that his special educational needs are in the areas of , , and . He when presented with novel tasks. Tr. 359. His class for the 2011-2012 school year is comprised of students, one head teacher, and one assistant teacher, but for challenging academic tasks like math and reading, the students are placed into smaller groups of students and one teacher, or smaller. Tr. 359360, 375. Ms. testified that the benefit of this group is that . ― is able to have individual attention‖, ― work with the teacher as frequently as needed, and all of the students in the class are working on the same skills so the curriculum really meets his needs.‖ Tr. 361. . is with a group of twelve for his specials twice a day and for lunch and recess he is with - students. Tr. 378, 379. On occasion, social studies or writing is taught through whole group instruction. Tr. 379. The small group lessons take place in the classroom, with a sound proof barrier dividing the room. The barrier is beneficial for . because he has a tendency to become . Tr. 362.

Ms. testified that there are times throughout the day when . is able to do independent work, a goal the school has set for him. Tr. 382-383. She explained that he still needs a lot of support to complete writing assignments. Tr. 380-385. She also testified that during writing he works independently for up to ten minutes on writing sentences and longer if he is working on a drawing. Tr. 404- 406. Outside of academic areas, . needs ‖ to make sure that he is following along, but in a group of twelve, he is able to function. Tr. 385-386. Ms. later testified that she was not sure how much support he needs outside of her classes. Tr. 387.

Ms testified that she uses for her students, a literacy

―assessment technique that uses uncontrolled texts to gage [sic]

what reading level the children are on. So at we use both controlled texts, which is texts that contains words that [ .] has been exposed to in his word work period, words that he should be able to sound out, and then the uncontrolled texts contain words that [ .] may not be familiar with, but he is presented with opportunities to work on strategies that allow him to read texts even if he hasn't specifically worked on those words using, you know, initial letter sounds and using context clues and other comprehension strategies.‖

Tr. 363.

Ms. testified that all of the students currently are reading at an end of kindergarten or early first grade level. Tr. 362, 377. At the start of the year, . was functioning at a level in English Language Arts. Tr. 398. The class uses ―

Preventing Academic Failure,‖ a phonics-based curriculum, for reading. Tr. 364. Ms. testified that . has responded well to the phonics program and that he:

―benefits from the explicit instruction of each individual sound and breaking the patterns into smaller parts, so for example, rather than just teaching all words containing the short vowel sound, "a", he needs it broken into word families so at, an, ap, ax, and the same is true for all of the vowel sounds.‖ Tr. 365.

Ms. testified that while . is ―

making progress‖ this is an area where ―

he still continues to have difficulty differentiating between the vowel sounds so we're spending time on each vowel sound....‖ Tr. 365. Ms. explained that she believes that the approach has been effective for because he ― is demonstrating his ability to use the decoding strategies of these short vowel sounds in other contexts throughout the day.‖ Tr. 366.

Ms. testified that ’s small math group ratio is either 8:2 or 4:1, depending on the particular lesson. His smaller group is on the level and the other is on a level. Tr. 378. At the start of the school year, . was functioning at an end of level. Tr. 398. She testified that the small group benefits . because it facilitates support, there are fewer distractions because of the fewer students, and it allows him to ― participate fully in the curriculum.‖ Tr. 366-367. Ms. testified that all eight students are functioning at an early first grade level in math. Tr. 367. The class uses a math curriculum called , a spiral-based, multi-sensory curriculum which focuses on one concept that is later re-visited throughout the year. Tr. 367. Ms. testified that the class is currently working on skills, including addition and subtraction facts, identifying numbers, working on pattern recognition, telling time to the hour, counting dimes and pennies, and graphing. Tr. 367. Ms. testified that . is scoring between the and percentile on weekly assessments and is demonstrating an ability to work independently. Tr. 368. She testified that . is responding well to the curriculum and has made great progress since September. Tr. 368.

Ms. testified that . receives the related services of , and (― ‖) at . Tr. 368. Ms. testified that she discusses .’s progress in and with his providers. Tr. 368-369. In addition, the providers will ― push in‖ to the class for certain sessions and this enables the providers to be involved in the classroom curriculum. Tr. 368-369. Ms. testified that the teachers of the lower school participate in weekly ― team meetings.‖ She testified that this is beneficial because all members of 's educational team can ― stay in touch about what [ .'s] needs are and we all have the same goals.‖ Tr. 369-370.

Ms. testified that there are other students in the class who have difficulty maintaining their attention. Tr. 392. The students ― will look off into a different direction. They might p lay with something in their desk. They might stand up, sit down, move a little bit in their feet.....talk to their neighbor when they're not supposed to be talking to that person, but it happens infrequently.‖ Tr. 393. There are no aggressive behavior issues. Tr. 394-395.

the students in 's class are functioning on a similar level. Tr. 402. All of the students receive . Tr. 402. All of the students need work on .‖ Tr. 402. There are girls and boys in the class. Tr. 407. Physically, the class is functioning age appropriately. Tr. 407. One girl is ― a little bit because she has some challenges with her and has Tr. 407.

Ms. testified that has formal parent teacher conferences three times per year where she sees .’s parents and she sees the mother at pick up regularly as well as writes notes with a communication notebook. Tr.370.

Formal report cards for the students are issued twice per year, in January and May. Ms. testified that math assessments are conducted every five lessons and she is constantly reviewing .’s work in reading and writing informally to see how . is working independently, and whether he is in fact applying learned skills out of the context of class. Tr. 372. Ms. testified that he is making progress at this year. Tr. 371-372. His reading, writing and math skills have all improved and he is able to work more independently in these areas. Tr. 371-372. Ms. testified that ― at the beginning of the year . had difficulty writing a couple of words. Now . is able to independently write a sentence using inventive spelling and learned patterns.‖ Tr. 371. She continued that:

―socially [ .] has made a lot of new friends this year and is initiating conversations with his peers more readily. He is showing now than he did at the beginning of the year about new tasks. His is improving. He is frequently. He has a very about school, and overall he is in the classroom.‖

Tr. 371

The parent testified that . has made progress at during the 2011-2012 school year. ― is addressing [ 's] needs on many levels. The small class size, and the ability for them to break out with him in a quiet area is key to his development and learning.‖ Tr.

425. She testified that is ―

able to address his needs at recess and at lunch. They are very careful and thoughtful about how they interact with the children at those times, and they feel that it is one of the richest times of the day for them. They have at lunch helping the children interact better, and they have also people on the roof at recess when there is a conflict.‖ Tr. 425. She testified that the school is able to address his sensitivity. Tr. 425. The parent testified that , ―

He's . He's reading. His . He has a and subtraction now. He's , and he as a reader and a student.‖ Tr. 426. She testified to progress, and noted, ― he's getting and more able to and a . Tr. 427.

The parent testified that at the March IEP meeting, the team started with the recommendation of a CTT ― and then after listening to a bit and trying to figure out what to do with him, they went to as their choice. Tr. 432. The parent was not told why that was an appropriate program. Tr. 432, 453-454, 458-460. The parent voiced her objections and explained that she had visited this type of program in previous years and felt it was inappropriate for her son because he would not have appropriate peers. Tr. 433.

The parent testified that she received a Final Notice of Recommendation (FNR) in July. She called the school and was told that she would have to visit in September. Tr.

435. Subsequently, the parent wrote a letter to the CSE explaining that she had not been able to visit the school. Tr. 438-439. She did not receive a response to her letter. Tr. 438.

The parent testified that she visited the school on or about September 12, 2011. Tr. 439. She described the students in the class as ― ‖ during a lesson and in lining up. Tr. 440-441. She observed that the students had difficulty taking turns going up to a white board to write. The parent testified that she spoke to the teacher at length, who told her ― that they had a couple of kids had major productive language issues and that others had more receptive issues, but the functioning level was totally different than [ .'s] class at ...‖ Tr. 441-442. She saw the students as requiring much more classroom management than her son. Tr. 442. She wrote a letter to the CSE advising the CSE of her visit. She did not receive a response to the letter. Tr. 443.

The parent testified that she has paid the tuition of $44,000, in full. Tr. 423. Findings of Fact and Conclusions of Law Legal Framework

The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education. 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be ― tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'‖ E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).

A board of education may be required to pay for education services obtained for a child by the child's parents. The prevailing standard used to determine whether the local school district must reimburse parents for private school tuition or other education Services is the three-prong :‖Burlington-Carter‖ test. Reimbursement can be awarded if the services offered by the board of education were ― inadequate or inappropriate‖, the services selected by the parent were appropriate, and equitable considerations warrant it. School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). Prong I: Did the DOE offer C.D. a FAPE?

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93 94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]). Thus, Prong I of the Burlington-Carter test entails both procedural and substantive considerations. Procedural Violations Composition of the CSE

The parents allege that the CSE was improperly constituted because the team did not include a general education teacher. The IDEIA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; 34 C.F.R. § 300.324[a][3]; 8 NYCRR 200.3[d]). The New York State regulations require that a general education teacher participate in the CSE whenever the student is or may be participating in general education. 8 NYCRR 200.3(a)(1)(ii).

While the student was recommended for a special class, , program, Dr. emphasized that the DOE CSE team members thought that the student's strengths made him capable of handling a general education environment for his non-academic classes, lunch and recess, with appropriate supports, so much so, that originally Dr. recommended a CTT class and testified that the CSE considered that program. Tr. 81-87. Dr. also testified that . needed to address and related issues and the CSE continued individual sessions in recognition of the support that . would need. Clearly, Dr. contemplated that he would be in a general education setting for part of his day, and acknowledged that he would need supports to benefit from the recommended program. The CSE, therefore, required the presence of a qualified general education teacher to speak to how the student would appropriately be recommended for the 12:1 class in a community school. There is nothing in the record that would support finding that Ms. acted as a general education teacher at the meeting, was qualified for this CSE meeting as such, or contributed information in that capacity. Dr. 's mere assertion that Ms. is a licensed general education teacher does not sufficiently meet the DOE's burden to prove that it had assembled a duly constituted CSE. Tr. 71. In fact, Dr. testified that she did not know if acted as the general education teacher. Tr.

129. Ms. unequivocally testified that Ms. did not inform anyone at the meeting that she would substitute or a general education teacher. Tr. 312. Therefore, the DOE, failed to provide the student with a FAPE since no general education teacher was present to consider .'s transition from a class in a NPS to a class in a community school with participation in the general education setting for special, lunch and recess, without the supports of a special education teacher in those general education settings. No general education teacher determined ― appropriate positive behavioral interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel‖ as set forth in the controlling statute and regulations supra, thereby impeding .'s right to a free and appropriate public education and depriving him of educational benefits.

The DOE cites recent Southern District cases in which the court did not find a deprivation of FAPE because there was no regular education teacher present at the IEP meeting. W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 287-88 [S.D.N.Y. 2010]; M.N. v. New York City Dep't of Educ., Region 9 (Dist. 2), 700 F. Supp. 2d 356, 365-366 [S.D.N.Y. 2010]. Unlike the facts of this case, the court in these cases emphasized that the students would not be participating in a general education environment and the lack of a regular education teacher did not impact on the students' right to a FAPE. Similarly, in S.F. and Y.D o/b/o G.F.D. v. NYCDOE, 11 Civ. 870 (S.D.N.Y. 2011) the court noted that the student would not be participating in a general education environment while here, the DOE emphasized the student's ability to participate in a general education environment in the nonacademic areas as a rationale for its ultimate recommendation of a class in a community school. Moreover, the special education classroom teacher of the proposed class testified that she does not accompany the students to the nonacademic general education classes so there is no basis for finding that the participation of a special education teacher at the IEP meeting could appropriately substitute for the value of a general education teacher's contributions.

Accordingly, since the statutory and regulatory requirements for the participation of a general education teacher in an IEP meeting for a student who is recommended to participate in a general education environment is not limited in any way to only academic classes, . was recommended to participate in a general education environment, there is no evidence that was acting as a general education teacher or that she ever taught in a general education class, and there is no evidence that anyone served the function of a general education teacher at the March 8, 2011, IEP meeting, the DOE deprived . of meaningful educational benefit in the creation of his IEP and deprived him of a FAPE. Parent Participation

The parents allege that they were denied full participation in the CSE meeting because the DOE participants were constantly talking amongst themselves, cut off their son's teacher preventing him from fully explaining his views, and rushed them out of the meeting. While the record reflects and on the part of , it also supports a finding that the parents and teacher did have an opportunity to voice their concerns. These concerns were reflected in the testimony of Dr. and articulated by the parent in her testimony. These concerns also were recorded in the CSE minutes. Ex. 2. Even Ms. who in her testimony strongly criticized Ms. 's behaviors stated that did offer information about the student's functional levels (he talked ― for quite some time‖ about .'s math skills as well as reading and writing Tr. 325-326), management needs and strategies that were effective, as well as reasons why the recommendation was opposed. Tr. 323-327. Ms. also testified that all of the CSE participants who were not from the DOE ― repeatedly‖ spoke about what kind of placement he needs. Tr. 317. Additionally, Dr. and the parent testified about the CSE's original thought to recommend a CTT program and that the CSE was influenced by the parent's and teacher's input to change it's earlier view. The record also indicates that the CSE did discuss the student's performance at and whether the student needed an additional adult in the class. Therefore, the record also supports a finding that the DOE had not predetermined its recommendation for the student or denied the parent meaningful participation. The CSE does not have to ultimately agree with the views put forth by the parent or the student's current teachers. CSE disagreement is not a basis for finding a denial of FAPE. See P.K. & P.K. v. Bedford Cent. Sch. Dist, 569 F.Supp.2d 371 (S.D.N.Y. 2008).

Substantive Violations

The IDEIA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). The Second Circuit has determined that "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" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130); in that that it is likely to provide some "meaningful" benefit (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]). The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment (Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3rd Cir. 1995)). The IEP The parents complain that the IEP does not accurately reflect the student's functioning levels and provides an incomplete portrait of the student because it omitted crucial information provided by the teacher. Ex. 1. Dr. confirmed that the academic functioning levels provided on the IEP are taken directly from the standardized test scores on the evaluation. Ex. 1-3, Ex. 4. She justified using these levels by stating that these are reliable and objective measures. Tr. 99, 101, 132. She also testified that the student's teacher, who works with the student on a daily basis and whose impressions are valuable, disagreed with the reported levels. Tr. 100, 174. Dr. explained that when she compared the levels reported by the teacher with those of the psychological evaluation, the levels were highly correlated. Tr. 132, 173-174. She also noted that any discrepancies between the test results and the grade equivalents of the written teacher reports reflected 's progress made over the months that had passed. Tr.

100. Dr. conceded that the only exception was the student's writing score which was inflated in the testing results. While ― inflated‖, Dr. thought that the writing goal made clear what the student's deficits are in this area. Ex. 1-7.

Additionally, .'s academic levels in September 2011, as testified to by 's current teacher, corroborate Dr. 's position in that they reflect incremental progress from the time of the testing. Further, the page also accurately describes the student’s and s as described by teacher reports and input at the meeting as well as the CSE team member’s own observation and reading of the social history. Ex. 1-4; Tr. 109-113.The record supports a finding that with the exception of the writing score, the students reported levels are substantially similar. While the better practice would be to include both the standardized scores and teacher estimates, the di minimus discrepancies and the ― inflated‖ writing score are not sufficient to provide a basis for annulling the IEP. The Program

As to the reasonableness of the recommendation itself, Dr. provided a persuasive analysis of why a 12:1 special class in a community school with the recommended related services is an appropriate recommendation. The record substantiates that . is a student with average cognition, but and receptive , working memory, Ex. 1-3; Ex. 4 & 9, social and lack of , Ex. 1-4, Ex .7; Ex. 10, as well as gross and fine motor deficits, Ex. 8; Ex.11. While he does have some cognitive, academic and social deficits, he was at grade level and also presented capable of being during testing, observation and by parental description in the social history. Ex. 2, 4, 5, 6.

A small class with one specialized teacher, no more than other students and limited exposure to a general education environment where he would have supports as well as peer models was an appropriate recommendation. T. 81-84, 107-108, 111-113,

124. would have substantial support, small group and individual instruction, and access to some mainstreaming in non-academics, which the testimony, classroom observations, and evaluation all support he has the cognitive, academic, social and physical strengths to handle. Tr. 81-84, 107-108, 111-113, 124; Ex. 4, Ex. 5.

The DOE's calculation of what program could provide the student with educational benefit and achieve meaningful progress was reasonable. The District is not required to provide the program that might be best for the student. The program only need be reasonably calculated to produce educational benefit and there is nothing unreasonable in Dr. and the CSE’s interpretation and recommendation of what would produce educational benefit for this student. The Placement

The DOE failed to prove that the offered placement was appropriate to meet 's educational needs.^[1] The students in the class would be an inappropriate functional group for instructional purposes and for social/emotional purposes.

The uncontroverted facts are that . is due to his and deficits. Additionally, while his cognitive abilities are his tests related to Oral Language Skills, showed that he functioned at the for , both . Ex. His teacher's and reports corroborate his and . Both in , . is noted to require adult support to initiate and maintain conversations, as well as to stay on topic. While his parent and teachers note him to be a social boy, he lacks which also interferes with his with his peers and adults. Ex. 1-4.

Ms. testified that ―

the most important thing is sending the children off to work so that the teacher has the time to zero in on the children who need extra help‖, but she failed to offer any explanation of what structures existed for the other children during those times. Tr. 192. She testified about ― free choice‖ and play time, but she did not suggest in any way that she facilitates play or social interaction for a child like . who is reluctant to engage with the group, and has . Tr. 193. Ms. testified that she will ― position [her]self in the room‖ but if she sees ― a student having problems doing the work‖ she will not leave the group to assist the student. Tr. 273. Ms. 's approach is all the more concerning in light of the profile of the students in her class and .'s reported need for individual adult support in the much quieter and calmer environment described at .

The Commissioner’s Regulations require students be grouped in special education classes by similarity in development, academic and needs. 8 NYCRR 200.6[a][3]. While . and the students in the proposed class are of similar ages and academic levels, the similarities end there, and in significant ways.

Ms. testified that there were students in the proposed class at the start of the school year. of the students are native speakers who at the time of her testimony on January 5, 2012, were beginning to speak in phrases. Tr. 253. Two students in the current class are very verbal and have age appropriate vocabulary. Tr. 253-254. Ms. did not testify at all as to how she addresses the students' language appropriate placement, in place at the start of the school year. It is the DOE's burden to prove that it has done so. needs in her classroom nor how this very limited population of students with even fewer verbal children possibly could be a suitable peer group for for addressing his issues.

Additionally, Ms. testified that the students in her class , are very , , . Tr. 249-351, 261-262, 274-275. She characterized the behaviors as typical of old students in a . Tr. 267.

In contrast, does not , although reportedly he can when . He has done as well as reported at in a quiet environment where special dividers are erected to minimize distractions and the students do not exhibit behaviors similar to those of Ms. 's class. .'s and , as well as his make the proposed class an inappropriate recommendation for him. He would not have had suitable peers to develop his or suitable peers for groupings. There is no convincing evidence that there is a core group of students in the class operating at a sufficiently comparable level to . in terms of language skills, that would permit . to continue making progress in these areas. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 133-134. Additionally, Ms. 's descriptions about the behaviors in her class, despite her management of the students, coupled with the parent's testimony about what she observed in the class lead to the finding that would have enormous difficulty learning in such a distracting environment. Even with so few students in the class, Ms. 's testimony , with students exhibiting enough and having that having one teacher in the class would not leave time for enough adult support for in his areas of need. Accordingly the proposed placement was inappropriate to meet .'s individualized educational needs and deprived him of a FAPE. Prong 2: The School is an appropriate placement for for the 20112012 school year.

The standards for determining whether a parent's private school placement is appropriate under the IDEA are similar, but not identical to evaluating the appropriateness of the DOE's proposed placement. See A.D. v. N.Y. City Dep't of Educ., 690 F. Supp. 2D 193 (S.D.N.Y. 2010). To be eligible for reimbursement, the parent's chosen placement is not required to meet federal or state requirements, but rather a less stringent standard. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 at 14 (1993); Frank G. v. Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). The core issue is whether the private placement is ― reasonably calculated to enable the child to receive educational benefits.‖ id. at 364 (citing Rowley, 458 U.S. at 207). ―

No one factor is ...dispositive‖ of this issue. Instead, courts must consider ― the totality of the circumstances....‖ Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (quoting Frank G., 459 F.3d at 364-365). Ultimately, the analysis requires determining whether ― [the] unilateral private placement ...provides education instruction specifically designed to meet the unique needs of a handicapped child.‖ Gagliardo,489 F. 3d at 115. The parents must present evidence demonstrating that their chosen placement is "'likely to produce progress, not regression.'" Gagliardo, 489 F.3d at 112 (quoting Walczak, 142 F.3d at 130). The parents' choice "should [] be evaluated [by] looking at the program at the time that the parents selected it," C.R. ex rel. W.B., 2005 U.S. Dist. LEXIS 15215, at *59 (E.D.N.Y. June 10, 2005), rather than by considering the student's actual progress in the placement.

The record supports the finding that is reasonably calculated to enable the child to receive educational benefits. The school is State-approved to serve students with impairments, like . He is grouped in a small class, with students who are his age and with similar reading and math levels. Both in his written report and demonstrated an understanding of the student's , and how some of these deficits impacted on his . For reading and math, . is instructed in even smaller groups, providing him with individual attention and support to address his specific needs. The teacher supports . by breaking down the work into smaller units, checking in to see if he is following, using multi-sensory methods, and teaching him in a physical environment designed to reduce distractions. He receives the related services of , therapy and The teachers and related services providers meet regularly. The providers also push in to the class for certain sessions so that they and the teachers all are working on the same goals. Tr. 368-370.

The district also argues that does not provide the student with special education services in the least restrictive environment (LRE). While parents are not held as strictly to the standard of placement in the LRE as school districts, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]; M.S. v. Bd. of Educ., 231 F.3d 96, 105 [2d Cir. 2000]; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 138 [S.D.N.Y. 2006]; Pinn v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 482 [S.D.N.Y. 2007]). Here, the fact that exclusively educates students with disabilities is not a bar to reimbursement. The rulings of both Burlington and Carter regarding the right of parental placement would be rendered meaningless if courts were to routinely find that parental placements in special education private schools automatically violated the IDEIA's mainstreaming requirement or parents were required to keep their child in a regular education setting when they believed it was inappropriate to meet the child's needs.

Prior to the parents placing . in for the 2011-2012 school year, the reports and testimony show that . made progress in academics and in the areas for which he received related services. As reported by Ms. and the parent, since school began for the 2011-2012 school year, . has made progress in decoding Tr. 335336, math skills Tr. 368, writing a fuller sentence Tr. 371, has increased his ability to work independently Tr. 382-383, is initiating conversations with peers more readily and participating more in group activities. Tr. 371.The School provides with an education designed to meet his unique educational needs. Prong 3: Equitable considerations support an award of tuition, in favor of the parents, for the 2011-2012 school year

Once a decision has been made in favor of the parents on the first two prongs of the Burlington-Carter test for reimbursement, it must be determined whether equitable considerations support the parent's claims. ―

[E]quitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.‖ Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363-364 (2d Cir. 2006) (citing School Comm. of Burlington, Mass. v. Dept. of Educ. of Mass., 171 U.S. 359, 374 (1985)). Where a district fails to provide a student with a free and appropriate public education and the private placement is found to be appropriate, ― the court enjoys broad discretion in considering equitable factors relevant to fashioning relief.‖ N.R. ex rel. T.R., 2009 WL 874061 at *6 (March 31, 2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). A ― major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the city throughout the process to ensure that their child receives a FAPE.‖ (id. quoting Bettinger v. New York Bd. of Educ., No. 06 CV 6889, 2007 WL 4208560, *6 (S.D.N.Y. Nov. 20, 2007)).

The parents fully cooperated with the CSE by having . evaluated for the annual review and participating in the March 8, 2011, meeting. While she did not inform the CSE at the March 8, 2011 meeting that she had secured a spot for her son at with a signed contract and deposit on March 4, 2011, she ― raised her strong concerns‖ about the recommendation and her attorney made very clear that the parent hoped and preferred that the CSE would recommend a deferral to the CBST so that A.B. could attend a NPS, specifically . see A.H.on behalf of J.H.v. NYC Dep't of Educ. 652 F. Supp. 2d 297,(E.D.N.Y. 2009) Still, at the end of the meeting the DOE asked the parent to rank three schools about which it provided no information and she knew nothing about, and she cooperated by ranking them based on proximity to her home and returned the information to the CSE promptly. The parent wrote to the CSE twice after the CSE review, including to the individual indicated on the FNR, , to request information or have the CSE reconsider its recommendation, showing a willingness to engage in the CSE process. The parent informed Ms. specifically that she would be willing to forfeit her deposit to if the DOE offered an appropriate placement. Ex. D. Yet the parent never received a response to her letters. Tr. 433; Ex. D. The parent visited the proposed school. Nothing the parent did impeded the DOE's ability to engage the parent in a discussion about the placement, inform her as to why or how a particular placement would meet her son's needs or to offer the student a FAPE for the 2011-2012 school year. The parent fulfilled her obligation to work with the CSE to find her son an appropriate placement. Equities support an award of tuition to the parents for the 20112012 school year. Transportation

The DOE did not meet its burden to prove that is not entitled to transportation.

Under the Individuals with Disabilities Education Act, in order to be eligible for federal financial assistance, a State must show that a system is in place to ensure that a free appropriate public education is made available to all of the State's school-aged children with disabilities (see 20 USC § 1412 [a][1][A]). New York thus requires that every school district provide "suitable educational opportunities for children with handicapping conditions" based upon the needs of the individual child (Education Law § 4402 [2][a]).

NY Education Law provides that a student shall be provided ― suitable transportation of fifty miles to and from a nonpublic school which a child with a handicapping condition attends if such child has been so identified by the local committee on special education and such child attends such school for purpose of receiving services or programs similar to special education programs recommended for such a child by the local committee on special education.‖ N.Y. Educ. Law§4402(4)(d).

. is entitled to suitable, not special education transportation under the statute. Nothing in the record indicates that he is eligible for special transportation. . has been identified by the CSE as a child with a , and he attends , a State-approved non-public school with which the DOE contracts to provide services to appropriately classified students in need of special education, for the express purpose of receiving a program and services which most certainly are similar to special education programs recommended for a child like . by the CSE. The statute does not require that the student attend the specific program recommended by the CSE, only that the program the child does attend be similar to programs the CSE recommended. In both the DOE's recommended placement and , . would be in a class of students with adult support for his areas of deficit. In both settings he would receive the same related services. The record supported the finding that the offered placement denied the student a FAPE. The fact that is exclusively a special education environment and the recommended program was in a community school does not disqualify . for transportation services. Accordingly, the student shall receive transportation services.

ORDER

1. The DOE failed to offer the student ., a free appropriate public education for the 2011-2012 school year.

2. The School is an appropriate placement.

3. The equities favor an award to the parents.

4. The DOE shall reimburse the parents the tuition for the School for .

for the 2011-2012 school year in an amount not to exceed $ upon presentation of roof of payment. Payment shall be made with fifteen days of the presentation of proof of payment.

5. The DOE shall provide transportation to the student. Dated: February 16, 2012

______________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Notice Request for Transportation, 8/24/11, 3 pp. C Enrollment Contract, 3/2/11, 2 pp. D Letter to Placement Officer, 7/19/11, 1 p. E Letter to Placement Officer, 10/5/11, 1 p. F Emails Between Parent and Dr. , 3/11/11, 1 p. G Class Profile, 11/22/11, 1 p.

DEPARTMENT OF EDUCATION

1 Individualized Education Program, 3/8/11, 20 pp. 2 CSE Review Minutes, 3/8/11, 8 pp. 3 Final Notice of Recommendation, 7/11/11, 1 p. 4 Evaluation by Dr. , 1/11/11, 5 pp. 5 Social History, 1/2/11, 3 pp. 6 Classroom Observation, 12/6/10 and 1/5/11, 4 pp. 7 School Teacher Report, 11/8/10, 4 pp. 8 Report, 1/2011, 1 p. 9 Report, 1/2011, 1 p. 10 Update, 1/2011, 1 p. 11 Physical Examination, 11/17/11, 2 pp. 12 Due Process Complaint, 9/28/11, 7 pp. 13 Due Process Response, 10/7/11, 3 pp.

IMPARTIAL HEARING OFFICER

I Extension Decision, 12/13/11, 3 pp. II Extension Decision, 1 p. III Subpoenas and Parties’ Objections, 11/29/11 and 12/5/11, 8 pp.

IV Department of Education’s Closing Brief, 1/30/12, 29 pp. V Parent’s Closing Brief, 1/30/12. 30 pp. VI Extension, 2/15/12, 2 pp.

Footnotes

[1] The DOE argues that the parents' complaints about the offered placement should be found outside the scope of this hearing because the parent already had rejected the placement before learning about it or observing it, and cites the August 24, 2011 notice of unilateral placement to the CSE (Ex. A) and the parent's testimony that subsequent to her visit she did not pursue more information, in part, because she already had enrolled her son at and figured that she would pursue the impartial hearing process. Tr. 446. The parents' notice set forth their concerns about the recommendation and informed the CSE that unless a new IEP were developed they would unilaterally place their son. The notice served its function of giving the DOE an opportunity to reconvene a CSE and consider whether a FAPE could be provided in the public schools. The parent received no response. Notwithstanding the parents' notice, it is the DOE's obligation to provide a FAPE with an appropriately developed IEP, an appropriate program and an