Impartial Hearing Decision

NEW YORK STATE DEPARTMENT OF EDUCATION

MANHASSET UNION FREE SCHOOL DISTRICT-IMPARTIAL HEARING

In the Matter of M.W.

Application of his Parents for Reimbursement of Tuition Costs For School Year 2011-2012

HEARING OFFICER'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

DECISION AND ORDER

DATE OF BIRTH: [Redacted text]

DISTRICT: MANHASSET UNION FREE SCHOOL DISTRICT

HEARING REQUESTED BY: PARENTS

HEARING OFFICER: SUSAN MILLS RICHMOND, ESQ.

NAMES AND TITLES OF PERSONS WHO APPEARED AT HEARING

Hearing held on 1/11/12, 1/13/12,2/6/12. 2/14/12, 3/8/12, 3/9/12, 3/14/12, 3/15/12, 3/19/12, 3/21/12, 4/23/12, 4/26/12, 5/4/12, 5/30/12, 7/10/12, and 12/9/11 pre-hearing conference

Mother

Psychologist who prepared

Neuropsychological Evaluation

Speech provider for Parents and Associate

Professor at Queens College

Director, SLCD

MW/'s Teacher at SLCD

MW’'s Speech provider at SLCD

For the District:

District Executive Director of Special Education

District Coordinator for Preschool and

Elementary Special Education

District Special Education Teacher of MW

District Speech Provider of MW

District Teacher of MW

Rebuttal Witness-District Special Education

Teacher

DOCUMENTARY EVIDENCE CONSIDERED AT HEARING

FOR THE DISTRICT: EXHIBITS 1 - 17 AS LISTED BELOW:

Exhibit

1. Number Date Exhibit Pages Student Information Summary 2011-12 6/16/2011 3 pages DOE

2. Individualized Education Program 2011-12 6/16/2011 21 pages DOE

4. | 4/21/2010 Individualized Education Program 2010-11 aes Letter from A. Rushforth to Parents 4/6/2011 4 pages DOE

5. Email from R. Gezcik to Parent 4/7/2011 1 page DOE

6. Speech-Language Progress Report from Dr. Sima Gerber 1/20/2011 4 pages DOE

if. Progress Report for IEP Goals 2010-2011 ) 2010-2011

8. Student Information Summary 2011-12 5/27/2011 2 pages DOE

9. Individualized Education Program 2011-12 5/27/2011 18 pages DOE

10. Progress Report for IEP Goals 2010-2011 6/2011 6 pages DOE

11. Letter from Parent to A. Rushforth 6/29/2011 1 page DOE

12. Email from A. Rushforth to Parent 7/5/2011 2 pages DOE

13. Prior Written Notice Letter 11/3/2011 11 pages DOE

14. Email from Mother to J. Shapiro 4/26/2011 1 page DOE

15. Speech-Language Annual Review by L. Prisco 5/16/2011 2 pages DOE

16. E. McCormack Progress Report 3/18/2011 2 pages DOE

17. Email from E. McCormack to Parent 3/4/2011 1 page DOE

A. M.W. AND MANHASSET UFSC - PARENT EXHIBIT LIST: (This was the Due Process Complaint dated October 20, 2011 which was identified but not entered) (3 pages); Email correspondence between parent and Ms. Shapiro dated February 3% m®oO and 15", 2011 (2 pages); Omitted; Omitted; Email correspondence between parent and Ms. Rushford and parent dated June 29"", July 5" and July 6" 2011 (2 pages); Queens College Language Evaluation dated April 15, 2011 (9 pages); -T@AxmSr JBFCS Neuropsychological Evaluation final testing date April 6, 2011 (21 pages); 2009-2010 Grade 2 Progress Report (1 page); 2010-2011 Grade 2 Progress Report (1 page); Occupational Therapy Annual Report dated February 16, 28 and March 2, 2011 (4 pages);

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Teacher Report dated March 21, 2011 (1 page); Classroom Observation dated March 16, 2011 (2 pages); Student Progress Report, Scholastic Reading Inventory Test dated March 4, 2011 (1 page); Educational Report Update dated May 26, 2009 (6 pages); 2009-2010 Progress Report for Goals and Objectives (10 pages); Summary of On-Task Behavior for December 2010 through March 2011 (1 page); Email correspondence between parent and Manhasset staff dated January 24, 2011 (1 page); Email correspondence between parent, Mr. Geczik and SCLD dated April 7 —

27, 2011 (3 pages);

Audio Transcript of CSE meeting dated May 27, 2011 (73 pages); Audio Transcript of CSE meeting dated June 16, 2011 (58 pages); Annual Review Teacher Report dated May 14, 2011 (2 pages); Speech/Language Annual Review dated May 2008, performed by Caroline

Valenski, Manhasset Speech Language Therapist (1 page); Page 5 FF. Contract between parents and SLCD for 10 month program dated June 20, 2011 (2 pages); GG. Copy of Parents’ initial payment to SLCD dated June 20, 2011 (1 page); HH. Dr. Sima Gerber’s CV (18 pages); SLCD Progress Report for Goals and Objectives dated March 12, 2012 (15 pages); JJ. SLCD Teacher and Related Service Provider Reports, Testing, and Behavior Assessment, various dates (30 pages).

In the Matter of Student

Application of his Parents for Reimbursement of Tuition Costs Of School Year 2011—2012

HEARING OFFICER'S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

DECISION AND ORDER

Following a pre-hearing conference held by conference call on December 9 , 2011, I conducted an impartial hearing over the course of several days in 2012, which days are: January 11, 2012, January 13, 2012, February 6 , 2012, February 14 , 2012, March 8, 2012, March 9, 2012, March 14, 2012, March 15, 2012, March 19, 2012, March 21, 2012, April 23, 2012, April 26, 2012, May 4, 2012, May 30, 2012, and July 10, 2012". This hearing concerns a student in the District, pursuant to the Individuals With Disabilities Education Act ("IDEA"), 20 U.S.C. Sec. 1415(f)(3). It was prompted by the demand by the parents of Student (also referred to in this Decision “this child”) (the “Parents") for reimbursement of

1. In this tuition reimbursement case where the child had been unilaterally placed by his parents since before the case began, the parties jointly moved for many extensions of all applicable record close and compliance dates based on witness availability. Mindful of the mandate I am under of having the issues at hand speedily adjudicated, | questioned the parties and their counsel throughout this lengthy hearing process about possible quicker hearing dates in which to continue this hearing and possible stipulations among them as to facts. However, this was to no avail in that the parties could not make unavailable witnesses available and did not agree on any factual stipulations. Nonetheless, I made every effort to hold the Hearing as quickly as possible and, on occasion, asked counsel to the parties to take out their calendars and, at that moment, go through every date and explain why they were not available for this hearing. The hearing on tuition reimbursement for this child who had already been placed nonetheless lasted for 15 sessions at the request of the parties and | saw no reason to exercise my discretion to cut off the due process rights of the parties based upon difficulties in scheduling due principally to lack of availability of the many witnesses who testified during this hearing. See, e.g., Tr. at 2505, lines 5-16. tuition expenses of the past school year, School Year 2011-2012, based upon his Parents’ unilateral placement of Student at the Private School, in City, New York.

CONCLUSION

For the reasons stated hereinbelow and despite very good advocacy on the part of the District’s counsel and the testimony in some cases of what appear to be very dedicated District service providers, I find in favor of the Parents and award them tuition costs as per their Due Process Request for School Year 2011-2012. Pursuant to the applicable legal standards, I conclude that: (1) the District did not meet its burden to demonstrate that the program recommended during Spring 2011 by the Committee On Special Education ) (“the CSE”) was reasonably calculated to provide this child with a Free Appropriate Public Education (“FAPE”); (2) the parents met their burden to show that the program they placed Student in provided this child with a FAPE; and (3) the equities favor the parents’ request for tuition reimbursement in this case.

PROCEDURAL INFORMATION

The hearing was held at the offices of the School District located at Street, City, New York. A list of witnesses who testified and of Exhibits entered into evidence at the hearing is annexed hereto. The Due Process Request dated October 25, 2011 and the District's Response thereto of November 4, 2011 are considered Arbitrator's Exhibits 1 and 2 in evidence, respectively.

The Parents appeared throughout the hearing with their attorneys, by Parents’ Attorney. Attorney appeared for the parents at the Pre-hearing Conference by phone, and at all of the hearing dates, where she was accompanied, except for one hearing session, by Student's mother. During the one hearing session when Mother was not in attendance, the child’s father was present.

The District appeared throughout the hearing with its attorneys by District's Attorney. District's Attorney appeared for the District at the Pre-hearing Conference by phone, and at all of the hearing dates, where he was accompanied at all times by District Representatives, including A.R., Executive Director for District Special Education, and Dr. L, School Psychologist at Elementary School.

I conducted this hearing under the IDEA in effect on the date of the hearing request, which is on or about October 25, 2011. Thus, the burden of proof is placed upon the District on Prong 1 of the Burlington-Carter doctrine by amendment to the New York Education Law after the Shaffer v. Weast decision, see discussion infra. This is the controlling law in this Hearing Officer’s Findings of Fact, Conclusions of Law and Decision and Order ("the Decision").

At the Pre-hearing Conference on this matter, | reiterated the disclosures contained in a letter I had sent to the parties on or about October 31, 2011, which disclosures indicate that the firm with which I am associated, Lexow, Berbit & Associates. P.C., represents a school district in Rockland County. These disclosures also indicate that I have a child who was then 18 years old, has been diagnosed with Disorder, has had a diagnosis of mild Other Disorder, and who was classified, had an IEP, and recently graduated from high school in my school district in New Jersey. Tr. at 13. I also disclosed in my letter and at the Pre-hearing Conference that I have also represented parents, in, among other things, matters related to students with disabilities, id. and that District’s Attorney and I had just been involved in a matter relating to a different school district which resolved before it even got to a pre-hearing conference. Tr. at 14. I further disclosed that a number of years ago, District's Attorney and I had a hearing in a different school district in which I found in favor of the school district on completely different facts and circumstances. Id. After considering these disclosures and my further statement that none of them would have any impact on my remaining completely neutral in this matter, both sides asserted no objection to my serving as the Impartial Hearing Officer in this case, and I conducted the Pre-hearing Conference and the hearing on this due process request. Tr. at 14-15.

At the conclusion of the last hearing day, | requested post-hearing submissions on the key legal and factual issues presented from both of the parties. Both parties agreed to make these submissions in lieu of closing statements and I received Post Hearing Briefs from both the Parents and the District on or about August 21, 2012.

THE CSE RECOMMENDED PROGRAM AT ISSUE

The program at issue at this hearing is for this past School Year, 2011-2012, during which time period Student was recommended by the CSE to enter a fourth grade mainstream class with a 12:1 special class pull-out for English Language Arts, reading, and math, together with the related services of speech, counseling, occupational therapy and direct and indirect consultant services. Notably, the 2011-2012 CSE-recommended program includes less special education support than that of the previous year’s IEP, the IEP for 2010-2011, even though the child made very little if any progress during School Year 2010-2011. See, e.g., Reports of the Oral Written Language Scales Test (“the OWLS”) administered by District personnel in April 2010, where this student scored as follows: Listening Comprehension-2d percentile; Oral Expression-0.1 percentile; Overall Oral Composite-0.1 percentile. See District Exhibit 16, Speech/Language Annual Review written by the District’s speech provider, L.P. Interestingly, District Exhibit 16 also reports the results of the OWLS Test administered on March 23d of the following year, 2011, by Ms. P, which results were almost the same as those from 2010 in the child scoring in the 3d percentile in Listening Comprehension, in the 0.1 percentile in Oral Expression, and in the 0.3 percentile in Oral Composite.

The prior year’s 2010-2011 IEP provided a more restrictive program for Student where he was in a 12:1+2 special self-contained class (as he had been in the previous school year), for the five hour instructional day, with a 1:1 classroom assistant for all instructional time. See District Exhibit 3 at Page 2. There were also three 1:1 assistants in the class during 2010-2011, making a total of 5 adults in the classroom, plus Ms. M.. Tr. at 1083 (testimony of E.M., Student's classroom teacher during that school year). There was also some testimony that this child spent some time during this prior school year in a 2d grade ICT class for some specials. However, the thrust of the 2010-2011 IEP was special instruction in contrast to the thrust of the 2011-2012 IEP at issue, which is general education. See District Exhibit 3 at Page 4, where the IEP for the prior school year declares: “The student will not participate in general education programs and requires special instruction in an environment with a smaller student-to-teacher ratio and minimal distractions in order to progress in achieving the learning standards.”

This child was ten years old at the commencement of School Year 2011-2012. His date of birth is Month, Day, 2001. Student was classified as having “Autism” during School Year 2010-2011. During the School Year at issue in this hearing, 2011-2012, the District maintained this child’s classification as “Autism.”

As noted above, the placement in controversy recommended by the District is a general education mainstream class in fourth grade in the public school with pull outs for English Language Arts, reading, and math. Despite his more restrictive placement in 2010-2011 with its daily interventions by special education teachers and providers, during School Year 2010-2011, Student did poorly on standardized tests and did not function at or near a third or fourth grade level. On this basis, the CSE should not have recommended the program at issue at this hearing consisting of a general education placement with special education pullouts for some subjects and no 1:1 aide assigned to Student.

CONCLUSIONS OF LAW BASED ON FINDINGS OF FACT

REIMBURSEMENT TO THE PARENTS IS APPROPRIATE FOR THE PRIVATE

SCHOOL CHARGES THEY PAID FOR TUITION FOR SCHOOL YEAR 2011-2012

BECAUSE ALL LEGAL STANDARDS FOR TUITION REIMBURSEMENT ARE MET

The Burlington-Carter Legal Standards

Reimbursement to the Parents is appropriate for the private school charges they paid for School Year 2011-2012 because all legal standards for tuition reimbursement for their unilateral placement of Student have been met here. The United States Supreme Court held that in an Individuals with Disabilities Education Act (“IDEA”) case, the burden of proof in an administrative hearing challenging an IEP is placed on the party seeking relief, see Shaffer v. Weast, 126 S. Ct. 528, 537 (2005), cited in Cabouli v. Chappaqua Central School District, 2005 WL 3500287 (S.D.N.Y. 2005), unless changed by state law. However, importantly, the effect of that ruling was, in fact, negated in cases in New York because, after Schaffer, New York Education Law Section 4404(1)(c), was amended by Ch. 583 of the Laws of 2007. This amendment provides that in New York, the burden of proof is upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement continues to have the burden of proof regarding the appropriateness of such placement. Id.

Accordingly, the burden of proof in this case is on the District to demonstrate, according to the prevailing legal standard of Burlington-Carter, infra, that the program recommended by the CSE in Spring 2011 was reasonably calculated to provide FAPE to Student. See Rowley, infra. That burden has not been met here. Set forth below at length are my findings of material fact based upon credible evidence showing that the child’s acute need for a language-based curriculum at a significantly lower level than that proposed by the CSE is not provided for by the CSE-recommended program of a general education fourth grade classroom with certain pullouts and the related services of speech, counseling, and a teacher consultant.

In addition, as also detailed below, it has not been shown here under the BurlingtonCarter legal standard that the equities favor the District and not the parents in their dealings with each other concerning this child’s appropriate placement. And, the parents have met their burden to show that their placement of this child at Private School is an appropriate placement. See discussion infra.

It is hornbook law that under the IDEA, New York State law, and both the federal and state regulations, the right to a FAPE for every child is guaranteed. See 20 U.S.C. 1401(9), which provides that each child must receive special education and related services which have been provided at public expense, under public supervision and direction, and without charge... See also 34 C.F.R. 300.17.

It is also important to keep in mind the legislative intent underlying the FAPE provision, which is set forth in 20 U.S.C. 1400(d). This Section provides that it is the purpose of this Chapter "to assure that all disabled children have available to them a free appropriate education which emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living...."

A board of education is required to pay for services obtained by a parent in terms of tuition reimbursement only if the services offered by the school district were inadequate or inappropriate, and the services provided by the parent were appropriate and the equitable considerations support the parent's claims. See School Committee Of Burlington v. Department Of Education, 471 U.S. 359 (1985) (“Burlington”); Florence County School District Four v. Carter, 510 U.S. 7, 15 (1993) (“Carter”) (referred to in this Decision as the Burlington-Carter legal standard and/or as the “three prongs of the Burlington-Carter legal standard)”.

In Carter, the Supreme Court, citing Burlington, further states that in fashioning relief for the Parents, if the district’ s placement is determined to violate IDEA, there is broad discretion under IDEA to consider all relevant factors “including the appropriate and reasonable level of reimbursement that should be required” Carter, supra, 510 U.S. 7,16.

Thus, in the case at bar, the District did not meet its burden of proof as to the appropriateness of the CSE-recommended general education class with certain pullouts and with related services because the parents amply showed Student's acute need for a more intensive special education program which is language-based throughout this child’s school day. This acute need was demonstrated at the hearing by the testimony of witnesses and the evidence submitted showing the uniform and unrefutedly very low results of standardized tests given to Student both in and out of District. Student's acute need for a language-based, more intensive special education program was also demonstrated by the parent's putting forth the credible observations of this child as functioning well below grade level by District and non-District service providers.

In addition to the lack of sufficient language-based curriculum in the CSE-recommended program ("the CSE Program’), the District could not and did not show that the CSE-recommended Program confers on Student a free appropriate public education due also to its mainstreaming aspects and the fact that this child likely could not function in such a fourth grade general education setting. This is because the fourth grade general education setting recommended would have come with a large number of students, including a large number of typical students, would have proceeded at a faster pace than what is needed for Student, and likely would have had less than a language-based program throughout the school day. The CSE Program was thus not appropriate for Student given his demonstrated need, recognized by the District, for much prompting and redirection, and given this child’s standardized test scores showing a lower functioning level than that addressed by the CSE Program. See, e.g. Parent Exhibits S and District Exhibit 15; Tr. at 913-915. The parents also elicited convincing testimony that the lack of a one-to-one aide to refocus this child makes the CSE Program inappropriate. See discussion infra and Tr. at 1258.

In fact, the District has offered no offsetting and convincing proof that the standardized tests and observations by the parents’ service providers are incorrect in showing a clearly lower level of functioning than that being addressed by the District and by the CSE. In fact, all of the convincing expert testimony at the hearing indicates that Student cannot now succeed in a mainstream setting or in one where the group size is larger than a self-contained class.

Indeed, Mother attempted in January 2011 without success to call to the attention of the District her “serious concerns” about her son’s “abilities in the mainstream setting,” as well as the “demands of 3d grade materials in the special class” See Parent Exhibit X, an email dated January 24, 2011 from Mother to Ms. M. and the response of Ms. M. In Ms. M.’s response by email to this email, she states that “we are actually seeing a struggle in reading now. The language is actually getting much more in depth as well as the stories Student is reading. The area where we are seeing him struggle is in written explanation. This has always been difficult for Student, but I believe we are seeing it much more now, as the work is getting more difficult and more is expected at this level.” Id.

These statements by Student's teacher in District indicate a recognition that Student was finding it difficult to keep up with second grade material in his self-contained class.

Nevertheless, no special reading program or even self-contained classes were made a part of the CSE-recommended program for the year at issue, School Year 2011-2012.

Similarly, on February 3, 2011, by email to J.S., who is the District’s Coordinator for CPSE & Elementary Special Education, Mother told of “a major concern that we've seen come up in the past two months of [Student’s] language processing with the building demands of his school work.” She continues, stating: “I am very concerned about his being able to understand the higher level of language being used (in the mainstream 2d grade and his 3d grade special ed academics) and the level of language needed to respond.” See District Exhibit O.

Mother also asked at that time if the District or any other District has a language based program for Student. Ms. S. responded more than a week later and did not address the request of Mother about a language-based class in District. Along these lines, Mother testified at the hearing that Ms. S. told her that the District could implement a specialized reading program for Student. Tr. at 1453. Toward that end, the District tested Student on March 4, 2011 by administering the Lexile Reading Test The test results of that Test showed that Student was unable to stay on task to complete it and the results note just that, and that more than one attempt was made. See Parent Exhibit S. However, Mother indicated that the results of this test were not discussed with her, tr. at 1455, and that no specialized reading program was implemented despite what Ms.S. had stated and despite these District-initiated test results.

On the issue of what specific burden must be met by the District concerning the CSE Program, courts have generally held that to meet its burden, a board of education must show that its recommended program is reasonably calculated to allow the child to receive educational benefits. See Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176 (1982). In the seminal U.S. Supreme Court case of Rowley, the Court ruled that a board of education must demonstrate that it provided sufficient services to enable the child to receive educational benefits. Rowley, 458 U.S. at 207. However, the Court further held that states need not provide "every special service necessary to maximize each handicapped child's potential." Id. at 199. The Court also found that Congress intended that the IDEA open the door of public education to handicapped children, not guarantee any particular level of services once inside. Id. at 192. Accord, M.S. Bd. of City School Dist. of City of Yonkers, 231 F. 3d 96, 102 (2d Cir. 2000); Matter of Handicapped Child, 22 Ed. Dep't Rep. 487 (Dec. No. 11,046) (1983).

Thus, the District has not met its burden to show that the CSE Program is appropriate for this child because the CSE Program has not been shown by the District to meet the purpose of the IDEA, which is to provide “a basic floor of opportunity." Rowley, supra, at 201.

And, Burlington, supra, tells us that a parent does not have to go along with an inappropriate placement which would be to the detriment of the child in its declaration that one of the reasons for allowing reimbursement of unilateral parental placements is to avoid parents from having the unreasonable dilemma of “go[ing] along with the IEP to the detriment of the child or pay[ing] for what they consider to be the appropriate placement.” Burlington , 471 U.S. at 370. Accord, Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006), where the Second Circuit held that parents may qualify for tuition reimbursement even though they unilaterally placed their child , thereby not being required to acquiesce in an inappropriate placement. See also Mr. A. v. New York City Department of Education, 769 F.Supp.403 (S.D.N.Y. 2011) (upholding tuition payment relief to parents who meet three part reimbursement test of Burlington-Carter, but had not paid the tuition due to inability to afford it.

Examples of credible testimony and evidence showing that the District did not meet the burden of proof that the CSE Program confers FAPE on Student are set forth below:

Credible testimony was provided by the District's rebuttal witness, K.F., who would have been this child’s learning consultant had the parents not opted to unilaterally place Student at SLCD during School Year 2011-2012. On the last day of the hearing, July 10, 2012, K.F., who impressed this Impartial Hearing Officer as a seasoned and talented special education professional, testified as to the many interventions she would have put into place to try to close the gap between Student and the other mainstream fourth grade students. Some of the curriculum modification, devices, and learning strategies she employs for the fourth grade class Student would have been placed in include wait time, a multi-sensory approach, repeating the question, asking if the student needs a “lifeline,” giving hints as to what the answer is, and choosing a peer to help with the question. Tr. at 2435.

Other strategies for teaching learning disabled children like Student were described by K.F. as the use of word cards, sequence cards, reading words “dotted out” from a workbook page, giving the first letter of a word to the student, use of videos and smart boards, and use of story cards with which, for example, to have the student learn the main idea of astory. Tr. at 2438-2439.

The use of picture books, pictures, and simplification of concepts which generally provide fewer components in a lesson, was also described by as another strategy she uses to stimulate reading comprehension in learning disabled students. Tr. at 2440. In addition, K.F. testified that Student could have had a teaching assistant in the class he was scheduled to be in, his homework and tests could have been modified, he could have had additional worksheets and could have been taught in a small group and had the use of time outs where he could use another space. Tr. at 2458-2459.

In addition, this witness testified that she reviews a child’s IEP prior to determining the kinds of modifications to implement, has access throughout the School Year to the IEP, and can and does hold meetings to discuss accommodations in the IEP which should be modified. Id at 2460.

However, as dedicated and talented as I find K.F., I have to conclude nonetheless that the program recommended by the District and adopted by the CSE does not provide FAPE for the reasons set forth below and because of the limited and insufficient exposure this child would have had to K.F. in the proposed program for School Year 2011-2012. In fact, the IEP at issue calls for Student to receive only a total of two hours per week of services by this provider as a consultant teacher direct and indirect.

When asked about that provision, K.F. indicated that she would have spent the two hours called for in the IEP in Ms. M.’s general education classroom with Student and with other students. Tr. at 2448-2449. 2470, where in response to my question, K.F. stated that during the past school year, she “did one full afternoon”, which was an hour one day, and then the other hour was divided in the other two days or the other three days. This witness then answered “Correct” in response to the question: “And during the time you were providing services to the other special ed students as well, consultant teacher services?. Tr. at 2470.

However, upon questioning from me to clarify the hours which would have been spent, K.F. indicated that she would have spent double the two hour time she spent as an indirect consultant if Student had not been placed elsewhere by his parents, but that she would not have spent more than four hours in total, with two hours for Student because he “required a specific amount of time of one-to-one instruction.” Tr. at 2491. And, this witness further testified that she would estimate that one half of the indirect and direct instruction is spent on indirect instruction, which is, by definition, not working directly with the child. Tr. at 2495-2496.

And, as was Clarified by the cross examination of this witness by Ms. H. for the Parents, there were slated to be 20 or 21 students in Ms. M.’s general education fourth grade class, three of whom were special education students, with one teaching assistant. Tr. at 2467. This size is clearly larger than a special education self contained class., which usually has 12 students or less.

I therefore conclude that even though K.F. created the impression during her testimony that she is a dedicated, seasoned ,special education teacher with a great deal of practical experience in the work she does and who may very well do a good job of curriculum modification for students with language based difficulties like Student, the time she was slated to spend doing so, which would have been at most four hours per week, including indirect instruction, would not have met the acute needs of Student for language based curriculum (See below), which needs were calculated to and were indeed appropriately met by the program of language-based learning throughout the school day afforded by Private School during School Year 2011-2012.

The principal objection raised by the Parents to the CSE Placement concerns the fact that this program requires mainstreaming of this child in a class grade above his level without a required one-to-one aide and with only pull outs for English Language Arts, reading and math, plus the related services of counseling, speech, occupational therapy, and teacher consultant services. It is the main thesis of the Parents’ case in this Impartial Hearing that although the District asserts that Student progressed from year to year in the public schools of this School District, standardized tests and other assessments given to this child without prompting or cueing by the District or by the Parents’ service providers clearly indicate that this child is not progressing year to year in that Student continued to have severe language-based deficits placing him way below grade level during the latter part of his third grade year. The thrust of the case successfully presented by the Parents concerning the CSE Program is thus that the proposed mainstreaming would strand Student in a class in which he would not have been able to function, thereby further enlarging the ever-widening gap between Student and his peers and thereby not providing a FAPE for this child.

Dr. G., a New York state licensed speech-language pathologist for 34 years who provided private services to Student for 5 years, see, e.g., her Vita which is Parent Exhibit HH, testified for the Parents. Her testimony clearly confirms the parents’ contention that Student has significant language delays relating to the precursors to language, including comprehending and formulating language, as well as engagement and interaction. Tr. at 1826.

Similarly, documents in evidence indicate that the June 16, 2011 IEP, which was admitted into evidence as District Exhibit 2 (hereinafter referred to as “the June 2011 IEP”) was formulated to address this child's significant disabilities, which are set forth by the District in the June 2011 IEP which it prepared, as follows: “Student requires prompting when listening to a teacher directed lesson or discussion. . . . Student needs to sit attentively and orient towards speaker during a group lesson. He needs to keep his materials organized by subject area in his desk. “ See June 2011 IEP at Page 8 of 21.

The Parents, in essence, disagree with the following characterizations in the June 2011 IEP, which they contend are inappropriate minimizations of the pervasive language difficulties Student experienced in the co-taught collaborative class during School Year 2010-2011:

“Student’s participation in the integrated co-taught class has been a great way for him to model his peers. If Student does not understand the verbal instructions given, he will reference those around him, and sometimes request help from a peer next to him. Student’s behavior has improved as a result of being in this class setting.”

“Within the Integrated co-taught classroom, Student will respond and take part in the lesson, when called upon. . . Student’s academic progress/functional abilities are not always noted when taking standardize[d] (sic) assessments.” June 2011 IEP at Page 8 of 11”

The Parents also disagree with the District and contend that weight should be given to Student’s scores on standardized tests as a measure of Student'’s lack of progress. The District seeks to downgrade and give little credence to the importance of standardized tests as a measure of this child’s lack of progress and as showing that this child has not been afforded FAPE. Both in the IEP as quoted above and in the testimony of its witnesses, the District’s thesis is that the results of standardized tests showing that this child has not made adequate progress are faulty . See, e.g., testimony of L.P., this child's speech therapist, Tr. at 913-915. The District asserts its theory concerning the lack of importance of standardized tests on two bases: (1) Whether administered by District providers or Parent providers, standardized tests are deficient in that they do not allow prompting or cues of any kind to redirect Student and focus him on the tasks being tested; and (2) When administered by the Parent's providers, i.e., Dr. H., they are additionally unreliable in that the Parents’ providers, unlike the District teachers and other providers who have been working with Student for several years, are either not competent or have not developed a rapport with this child conducive to testing.

However, the testimony of the District's speech therapist, L.P., who provided services to Student for several years and administered standardized tests to him, confirms that even when standardized tests were given in District to this child, he did poorly and showed that he was not making adequate progress and not being afforded FAPE by the District. L.P. testified, tr. at 913- 915, that she administered a standardized test to Student on 3/23/11 which shows that “he had a severe speech and language disorder.” Id at 914. It is this witness’ view, which is put forth throughout the hearing by the District, that the results of standardized testing for this child are unreliable because they “do not show [his] functional language, . . [and] “show Student’s language in a sterile environment.” Id.

L.P. continues, stating that what is unreliable about these tests is that she is “not able to modify questions [and] not able to repeat questions.” Tr. at 915. This witness continues describing what she wrote in her Speech and Language Evaluation, which is dated May 16, 2011 and is District Exhibit 15 in evidence. L.P. states that she took data showing progress by this child while she was providing services to him, in School Year 2010-2011. She further testifies that her Report, District Exhibit 15, states that “in a therapeutic setting Student is able to respond to who, what and how questions with one ontopic sentence. Tr. at 915.

However, as noted briefly above, a review of the scores from the standardized tests given by L.P. set forth in her Report, District Exhibit 15, shows clearly that this child indeed finished in the 3 percentile, 2"° percentile, and in the 3° and 0.1" percentile on various standardized tests administered by this witness on two different dates, 3/23/11 and 4/12/10. These results undeniably lead to the conclusion as admitted by the District's witness, L.P., - that Student has a severe speech and language disorder.

Furthermore, a comparison of the 2009 and 2010 Grade 2 Progress Reports also reveals a lack of academic progress by Student. See Parent Exhibits. H and |. Student's 2009/2010 Grade 2 Progress Report indicates that even with modified assignments and assessments, Student achieved grades showing a need for improvement across most areas. See Exhibit H. Student’s 2010/2011 final Grade 2 Progress Report yielded essentially the same results as the previous year, although this was a repeat of second grade for Student. In fact, in 2010-2011, in some subjects such as science, reading, and handwriting, there was actually a decrease in the grades reported even when the curriculum was being modified. See, Ex. I.

Nevertheless and remarkably, despite this lack of progress shown in the District's own Progress Reports in Student’s second attempt at a 2" grade setting, which 2"° grade setting included the support of two special education teachers and a 1:1 teacher assistant, the District argues that the CSE Program at issue for 2011-2012 consisting of a 4" grade general education class, with 22-23 students, and without the level of support given in 2010-2011 is appropriate. See District Ex. 2; Tr. at 725. Such CSE Program clearly is not appropriate.

And, it is clear based on the decision in Rowley, supra, as set forth more recently by the Second Circuit in Mrs. B v. Milford Board of Education, 103 F.3d 1114, 1121, “[w]hen the handicapped child is being educated in the regular classrooms of a public school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit.” /d. at 207 n. 28, 102 S.Ct. at 3051

28. As other circuits have held, this standard contemplates more than “mere trivial n. advancement.” Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3 Cir.1988); see also Hall v. Vance County Bd. of Educ., 774 F.2d 629, 636 (4" Cir.1985)

Similarly, Dr. H., who testified for the Parents, opined credibly that the severity of this child’s speech and language disorder requires that he be placed in a language-based special program where language will be the focus of learning throughout the entire school day.”

Dr. H.’s evaluation of this child consisted of a total of nine hours of direct interaction with Student. Tr. at 1311. Specifically, Dr. H wrote in relevant part in her

It should also be noted that the District's assumption in its Post Hearing Brief that Dr. H’s limited license to conduct evaluations expired in June of this year is not sufficiently corroborated and, in any event, irrelevant in that both the Neuropsychological Evaluation and her testimony in this hearing took place prior to that time. Furthermore, even if | were to strike Dr. H.’s testimony, which I do not find is required and do not do here, the conclusions | reach in this Decision would not change because of the substantial impact of the remaining testimony and evidence in this hearing. Neuropsychological Evaluation bearing Test Dates of 3/22, 3/29, 3/31, and 4/6/11, which is Parents’ Exhibit G in evidence, as follows:

“Student's significant deficits in language affect his comprehension of all aspects of language—spoken and written. The pace of the class and the discussion simply goes too fast for Student. He is often behind by several steps due to his slowness in auditory processing, difficulties remembering information, and inattentiveness.” Dr. H. Evaluation at 16.

Dr. H. reports several findings based on the standardized tests she gave to this child and her classroom observations. The tests she administered were the WISC-IV Intelligence Scale for Children, the WJ-II] (Woodcock —Johnson Tests of Achievement, GORT-4 (Gray Oral Reading Tests), WRAML-2 (Wide Range Assessment of Memory and Learning, NEPSY-2, Bender II, BASC-II (Behavioral Assessment System for Children), BRIEF (Behavior Rating Index of Executive Functioning), Vineland-ll, and the CAT (Children’s Apperception Test). His scores on the WISC-IV on his cognitive functioning were reported to be “within the Deficient range (Full Scale 1Q, SS =62, 1%ile), Working Memory (SS =68,

2 percentile), and Processing Speed (SS=73, 4 percentile)” and “well below expected levels.” Id. at 6.

Dr. H. continues her Evaluation of Student’s poor language and attention issues, stating that “Student’s verbal comprehension is severely compromised and remains an area of concern,” and that “Student's fund of general information is below average, though inconsistently developed ....” She also states that “[a]s language demands increased and required Student to apply comprehension and reasoning skills, his performance dropped dramatically.” She also states: “Despite processing low average general information, his comprehension of application of concepts is very poor.... His understanding of social situations and ability to answer “who” questions was extremely poor.” Id.

Observation by Dr. H. reported in this Evaluation includes seeing this child for four sessions at Dr. H.’s office and observing how he functions in District in his special class, his ICT class, and in the after-school program in District called the CAPP Program. In her evaluation, Dr. H. also finds that Student’s math skills are also limited. See Parent Exhibit G, at 11. On an untimed task, Student solved one-digit addition and subtraction calculations problems using numbers less than 10, but nothing more advanced. Id.

Student’s weakest area of functioning in math involved problem solving due to weak comprehension. Id. With respect to writing skills, Student needed repeated prompting to complete simple three-word, one sentence responses, even with a picture visual. Id.; Tr.1372. As part of the testing protocol, Dr. H. prompted Student to ensure that she had his attention. Tr. 1308. She opined that Student required significantly more prompting, redirection, and refocusing than other children his age. Tr. 1220, 1310.

Dr. H. concludes her evaluation MS in Parent Exhibit G, as follows:

“At this time, | most strongly recommend that Student be placed in a special education program that specializes in speech and language disorders and their application to academic and social functioning for children with autistic spectrum disorders. Such a program should be comprehensive, transdisciplinary, and include multi-sensory instruction throughout the day. Well-utilized, individualized visual supports will further facilitate optimal language comprehension. Consistent support is needed to help Student to regulate his behavior and attention so that he is alert and ready to learn to his best potential. Paced learning with breaks may be needed.

A positive reinforcement plan is recommended. Continued speech-language therapy still remains essential. Occupational therapy is still relevant to address sensory processing, muscle tone, visual special relations and writing fluency.”

Dr. H. was questioned extensively during the hearing about this Evaluation, Parent Exhibit G in evidence, and testified as to her overall impressions of the extreme severity of Student's disabilities centered around his very poor speech and language abilities. She also was questioned extensively about the merits of her recommendation that what is required for a basic floor of opportunity for this child to access education is his complete immersion throughout the school day in a language-based special education program with special education peers.

For example, during her direct examination, Dr. H. testified, tr. at 1214 et seq., that Student “shows significant deficits in areas associated with autism which revolve around communication and socialization.” Id at 1215. Dr. H.’s testimony about her Evaluation continues, and she states that this child’s academic skills “are all below age and grade level expectations,” and that when compared in reading comprehension with children in the second grade, which were the children he was in an ICT class with, his reading comprehension skills were still in the . . a percentile.” Tr. at 1216.-1217, Evaluation, Parent Exhibit G, re Gray Oral Reading Tests at 20. And, this witness continues, tr. at 1218, “on the Woodcock- Johnson Tests of Achievement on Passage Comprehension. . [h]is reading was again at the first percentile, (using grade norms)” Parent Exhibit G at 19, and the Woodcock-Johnson test scored this child as compared with others in Age norms 9-11 in the 0.4" percentile in Passage Comprehension. Id. See also Hansen v. Republic R-III School District, 632 F.3d 1024 (8" Cir. 2011), where the court ruled that a student with ADHD and bipolar disorder was eligible as an Other Health Impaired and Emotionally Disturbed classified student because of the adverse effect on that student’s educational performance based in part on a failing standardized test result required for promotion.

And, when I asked a question to clarify some of Dr. H.’s testimony, Dr. H. stated that this child received some of the low scores presented in her Evaluation (Exhibit G at 10) despite supports consisting of prompting on the test by “pointing to the item so that he would stay on task and respond to each subsequent question.” Id at 1220. She continued, testifying: “It was very clear to me in doing the testing that if | provided no support to him that he was unable to do many of the tasks . . . so without supports, the scores would have been even lower” Tr. at 1221-22.

When questioned further about Student's skills, this witness testified:

“He requires significant interventions in all settings in order for him to complete required tasks, whether it be during my testing sessions, whether it be a writing assignment in his special education class, whether it be redirection to engage in play with another older typical peer buddy in the CAPP Program, whether it be to attend to a forward-facing lesson in his ICT class, he_. . needs significant adult intervention throughout activities in order to complete them. And they were still not at an acceptable level.” Tr. at 1223-24 (emphasis added). And, the clarification of what Dr. H. means by “not at an acceptable level” is that this child is performing significantly below age and grade expectations in all areas of academic functioning, socialization, communications, and peer relationships.” Id.

Further examples of the testimony of Dr. H. showing that Student requires a language-based curriculum include:

1-Tr. at 1226—“As the paraprofessional talked with Student and he used longer sentences and more language, Student had a really hard time comprehending that.

lt was only when it was broken down in really simplistic ways, and at times tied to his own experiences that he could add on to the sentence.”

2-Tr. at 1226-27—“Each time the paraprofessional needed to sort of point to the page and say. “Okay, Student, write it . So even though he had come up with a response, it wasn’t his natural inclination to write it down, even though that’s what they did after each step...”

3-Tr. at 1227- When distracted, Student “looked around the room and it took either the paraprofessional or once or twice the teacher coming over to him and saying, ‘Student, work’”

4-Tr. at 1228- In the general education second grade class, Dr. H. stated: “Student did not participate at all, nor was he called upon. And it appeared as if he was not - he could not follow the pace of the lesson or the language load, meaning that there was simply too much language for him to break down and comprehend.” (emphasis added).

5-Tr. at 1230-In the ICT or special class as to an assignment about the number of stripes on the flag, Student acted as follows: “So that sort of comes to one-to-one correspondence of being able to count without having to physically have a manipulative or something in your hand. Since he had difficulty with that, one of the teachers . . .took him to the flag that was hanging in the classroom. She used like a long yardstick and helped him as she counted with him the number of red stripes on the flag.. she asked him to put [that exercise] into a complete sentence and he could not—he did not do that. .. .”

6-Tr. at 1232-Student was observed in the CAPP after school program out of his seat, making inappropriate comments to other children such as telling another child he hated him and saying: “I feel like throwing up.”

7-Tr. at 1249-Based upon her observations and testing of Student, Dr. H. states: “As part of a language based program [for Student] it also should be interdisciplinary so that all of the individuals, both classroom teachers and outside professionals who are providing services, should be knowledgeable about how to work with a child with a language disability, so there should be communication. It should be multi-sensory as well as transdisciplinary to support language development.” She also states, tr, at 1251, that Student needs “to work with someone who is specifically trained in how to break down language and build up language, providing the prompts and visuals that he needs. For example, in the ICT (special) class, he could not follow along with the pace of the lesson, just talking about things that children talk about every day in class—the calendar, the weather, problem solving, things in the world. The pace of the lanquaqe, the speed at which it was coming, was too fast.”... So, I believe he requires a program that is smaller, that has less auditory distractions because he has difficulty with processing and distractibility, that has more opportunities for intervention to help elicit the language responses that are appropriate to what he is learning.” Id at 1251-52.

8-Tr. at 1254-Dr. H. testified that “his reading level . . . I found to be akin to a midfirst grade level.” This is actually consistent with the statement made in Parent Exhibit O by the District's teachers for Student during School Year, 2010-2011, where Ms. R. and Ms. A. wrote on March 21, 2011 as follows: “Student's instructional level in reading is an F, which correlates to a beginning to mid first grade.” Accord, Tr. at 742-743, where Ms. R. testified, among other things, that by the end of School Year 2010-2011, which was the end of this child’s second year of second grade, Student's reading comprehension was at a first grade level. The testimony of Student’s teacher, Ms. M. also agrees generally with this assessment of this child’s reading level in that she states that at the end of School Year 2010-2011, Student’s reading comprehension independent level was at a mid to end of first grade level, although his instructional level was at the beginning of 2d grade. Tr. at 1758-59.

Based upon her findings set forth above, Dr. H. recommended a smaller, languagebased program at the May 27, 2011 and June 16, 2011CSE Meetings, and had submitted her Evaluation to the CSE Team prior to those meetings. Nonetheless, the program recommended by the CSE which emanated from these two Meetings did not comport with Dr. H.’s recommendations or the testing both Dr. H. or Ms. P. had done in that what was recommended wasa large, general education fourth grade class with no1:1 aide and only pullouts for certain classes and related and consultant teacher services.

In addition, while the District is correct that Dr. H. could well have suggested specific downwardly revised goals for Student at one of the two CSE Meetings held in Spring 2011, Tr. at 1255, it nonetheless appears to this Hearing Officer that Dr. H’s assessment of the goals put together by the CSE at Student’s June 16, 2012 Meeting was correct in that these goals were indeed too ambitious. Tr. at 1253.

This is because of the believable and unrefuted standardized testing results placing this child in extremely low categories for, among other things, reading comprehension and math and the credible testimony of, among others, Dr. H. and the three witnesses from the private school where the child was placed, SLCD, as to this child’s acute need for a language-based curriculum. Indeed, Dr. H. specified that in addition to her observations of Student, her having to discontinue a writing fluency test that is part of the WoodcockJohnson test because this child had completed only two sentences in a three minute time limit, further convinces her that the goals, which had him writing more expansively, were too ambitious. Tr. at 1254. This is also based on the observations by these witnesses and the District’s own testing results.

Moreover, the CSE Program was of concern to Dr. H. in that it provided placement in a fourth grade classroom, since Student “was not keeping up with even second grade peers.” Tr. at 1258. Also, Dr. H. disagrees with the CSE Program in that it did not require a teaching assistant assigned to Student, who would be a specified adult assisting Student. Dr. H. testified that this is because she had “seen his functioning in both a small . . .class— a class of 12 children and seeing him in the ICT class, as well as one-to-one in my office, knowing how much intervention and redirection he needed from adults.” Tr. at 1258.

| agree with the assessment made in the cogent testimony of Dr. H. to the effect that the CSE Program and goals set forth by the CSE were much too lofty to be deemed appropriate for this child. Dr. H. summed this up appropriately when she testified:

“The CSE] felt that setting higher goals, that these were the goals for the coming year and that he need not be at that level right now, but the level that they set the instruction at was so significantly greater than where he was at the present time that to close that gap would be nearly impossible. So they were not setting goals, in my opinion, base [sic] on where he was and raising it one notch, they were raising it three notches, or five notches.” Tr. at 1259.

Accordingly, based on these standardized testing and informal assessments, the goals prepared by the CSE for the 2011/2012 school year were completely inappropriate and were setting up Student for failure.

An IEP must provide "meaningful" access to education, and confer "some educational benefit" upon the child for whom it is designed to satisfy the IDEA. Rowley, 485 U.S. 176, 192 and 200 (1982). Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,” and . . . affords the student with an opportunity greater than mere 'trivialadvancement'. See Cerra v. Pawling CSD, 427 F.3d 186, 195 (2nd Cir. 2005), quoting Walczak v. Florida UFSD, 142 F.3d 119, 130 (2nd Cir. 1998); Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). Some courts have held that the IDEA requires a satisfactory IEP to provide "significant learning," and confer "meaningful benefit." Ridgewood Bd. Of Educ. v. N.E., 172 F3d. 238, 247 (3d Cir. 1999). This lack of true advancement by Student is amply detailed in this Decision. And, as evidenced by District Exhibit 10, at most, Student achieved only 2 out of his 15 goals set forth in his Progress Report for 2010-2011.

In addition, the CSE prepared goals for the 2011/2012 school year which expected Student to achieve reading comprehension goals at a mid-second grade level District Ex. 2, pp. 12-14. Although Student was still working on addition and subtraction goals, the CSE recommended multiplication, division, and fraction word problem goals. Ex. 2, p. 13. The CSE failed to formulate appropriate goals for Student because they Inappropriately based them more on his expected grade level and not on his actual needs and abilities. See M.H. and E.K. on behalf of P.H. v. NYCDOE, 2012 U.S. App. LEXIS 13394 (2nd Cir. 2012); confirming the District Court's findings M.H. v. NYCDOE, 712 F. Supp. 2d 125, 155 (S.D.N.Y. 2010), where the Second Circuit approved of this standard of goals being appropriate if based on actual needs and abilities and affirmed findings made below based on a preponderance of the evidence. Id.

The 2011/2012 IEP also what may properly be viewed as containing over-inflated assessments in the section reporting Student’s “Academic Achievement”. Ex. 2, p.6. In addition, this IEP did not include a provision for team meetings and support services for Student’s attentional issues and weak comprehension such as, breaks needed, encouraging spontaneous language, providing examples, and pre-teaching of instructional material. Ex. 2, pp. 16-18. Importantly, as noted above, this IEP did not include the service of a 1:1 assistant in the 4th grade general education class. Id.

In sum, the District has not met its burden to show that the CSE Program provides a FAPE to Student.

THE PARENTS HAVE SHOWN THAT THEIR PLACEMENT WAS

APPROPRIATE

Placement at SLCD of Student Has Been Shown To Be Very Appropriate

As noted above, under the Burlington and Carter holdings, parents seeking reimbursement of private school tuition are required to show that they placed their child in an appropriate private school program. As to what is an “appropriate” private school program, the U.S. Supreme Court in Rowley, supra, indicates that it is not required to provide the best possible education or to maximize each child’s potential for a program to be “appropriate.” Instead, a school district must meet a much more limited standard in which an educational program is appropriate if it enables a child “to benefit from the instruction.” Rowley, supra, 458 U.S. at 189, 200.

Thus, as the Second Circuit stated in Frank G. v. Board of Education, supra, 459 F.3d at 364 (2d Cir. 2006), the Parents here bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate (citing M.S., 231 F.3d at 104). Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C. § 1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers for the disabled student. Id. In addition, parents “may not be subject to the same mainstreaming requirements as a school board.” M.S., 231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84.(3d Cir.1999) (holding that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect”)) The Second Circuit in Frank _G. continued, declaring that subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents’ placement.

And in Gagliardo v. Arlington Central School district, 489 F.3d 105 (2d Cir. 2007), the Second Circuit, citing the same standard as that cited above in its decision in Frank G, supra, further held that the issue whether a private placement is appropriate turns on “whether a placement-public or private-is reasonably calculated to enable the child to receive educational benefits.” Gagliardo, 489 F.3d at 112. The Second Circuit stated: “To qualify forreimbursement under the IDEA, parents need notshow thata 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 handicapped child, supported by such services as arenecessary to permit the child to benefit from _ instruction. Id ; Frank G. v. Bd. of Ed., 459 F.3d 356, 364-365 (2d Cir. 2006); 20 U.S.C. §1401[29]; NY Ed. Law §4401[1]; 34 C.F.R. §300.39[a][1]; 8 NYCRR 200.1[ww].

Under these standards of what constitutes “appropriateness” in a parents’ private placement, it was demonstrated by the parents at the hearing that this child is receiving a very appropriate education at SLCD. This demonstration of the appropriateness of the SLCD Program and of the uncontroverted and ascertainable progress made by this child at SLCD. has been made through, among other things, the testimony of: (1) Dr. H., see discussion supra at Pages 18-26 of this Decision; (2) Dr. R., and (3) K.D., and also by means of Parents Exhibits Il, Progress Report for IEP Goals and Objectives dated March 12,2012, and Parents Exhibit JJ, School for Language and Communication Development Annual Review Classroom Report dated January 2012. Both Dr. R. and K.D. testified by agreement among counsel by conference call. Exhibits Il and JJ demonstrate measurable progress by Student at SLCD over the course of the last School Year, which is 2011-2012.

First, Private School is approved by the New York State Education Department to provide special education programs and services to students with disabilities ages 3 to 21. Tr. 2048, 2055-2056. In addition, the testimony of the District's witnesses and its Exhibits do not overcome the credible testimony of, among others, Dr. R., the Director of the School for Language and Communication Development (SLCD), of Ms. D., Student’s teacher at Private School during School Year 2011-2012, and of Ms. K., Student’s speech and language provider.

The testimony of Dr. R. about the school is very convincing that this school, which has a language based curriculum throughout the school day, is a very appropriate placement for this child. See discussion below at pages 30-32. Dr. R.’s testimony about the training of Private School teachers and service providers, tr. at 2050-51, and about her ~ strong background of working with children like Student, with autism, and of consulting regarding speech and language in public school districts as part of her current private practice, tr. at 2053-55, strengthens the support for my finding that the Private School is very appropriate for Student. The cross examination of this witness showed that she has not worked directly in the public schools for 16 or 17 years. Tr. at 2084-2086. In actuality, we found out on redirect that it has been only 5 or 6 years since this witness worked directly with public schools. In any event, this witness’ credibility and strong language based background were not undermined by this cross examination, especially in light of the contents of her testimony described below substantiating the Private School Program as appropriate for Student.

Furthermore, as noted above, Private School is a New York State approved special education school where most of its children are on the autism spectrum and where most or all of their children have been placed there by their CSEs. Tr. at 2055-56. A lengthy review of the paperwork for a prospective new student and his observation is also described by this witness. Tr. at 2058-59. All of the students at Private School have severe language disabilities. Tr. at 2060. , Also, Dr. R. described the language-based program at Private School as taking a “transdisciplinary approach” and using a “transdisciplinary model whereby all of the professionals who work with our students are aware of our language strategies and are very much focused on the development of languages a bridge to the development of academics.” Tr. at 2062. This witness continued: “We certainly follow the New York State curriculum and our children learn to read their math and they learn all of their academic subjects, but we recognize that this understanding of the concepts embedded in academics needs to be accessed through language, and that is a very big part of our focus.” Id. at 2063.

The classes at Private School have 12 students per class, and the building principal of the building where Student is in school has a certification in speech-language pathology. Id at 2064. One speech pathologist is assigned to two classes and “they work very closely with the teachers to make sure that they are cognizant of the language level of the students in their classrooms but also recognizing what techniques and strategies they will have to utilize to make sure that the children are accessing the curriculum through their language support.” Tr. at 2064-65. In addition, all teachers are certified special education teachers, tr. at 2065, and three full days of training are provided to the teachers at the beginning of the school year, as well as three additional days of training. Id at 2066. Other training techniques used at Private School are videotaping teachers while they are teaching and having the teachers and speech pathologists view these tapes and meetings of teachers in small groups. Id.

Moreover, the Director credibly describes the curriculum in Student's elementary school program as containing 90 minutes per day of reading instruction, both individually and in small groups, use of manipulatives, use of reading programs, and the use of curriculum modification as needed while making sure the children understand “the big ideas” of the subject matter. Tr. at 2068. Also, there are only six children in each reading group. Id. And, each class is assigned a psychologist who is part of that team and works with the classroom teachers in managing behaviors.” Id. At 2069. The teachers and the speech pathologists working with Student are expected to meet on a daily basis, tr. at 2070, and every six weeks, all team members will meet together. Id. at 2070.

Furthermore, the Private School program is appropriate for Student for the following reasons. Dr. R. testifies that students at Private School “receive specific training [in social skills] not only from the speech-language pathologist but from their classroom teachers and there are goals set for the students in the classroom to achieve in terms of their socializing with their peers.” Tr. at 2079. This socialization program, with an emphasis on peer-to-peer interaction as opposed to teacher-child interaction, takes place every day in the classroom. Tr. at 2079-80.

The testimony elicited from K.D. further bolsters the conclusion that the Private School Program is appropriate for Student. As noted above, K.D. was Student’s teacher during School Year 2011-2012 at Private School. She testified convincingly that the Private School Program heis in is right for him. For example, it is a 12:2:2 program, with a 6:1:1 reading and writing program, and with an age range of ages 9 to 11. Tr. at 2114-15, 2121.

Importantly, it is also clarified by K.D. that although this class is called a fourth grade class, the students’ functioning in that class ranges “from first to third grade.” Tr. at 2115. This is important because it is a substantial portion of the parents’ thesis in this case that their child was wrongly placed by the CSE in a fourth grade class, albeit a general education class. That the class Student is in at Private School does not actually contain students functioning on a fourth grade level, but actually on a first to third grade level, is much more consistent with the parents’ contention that the Private School program is appropriate for this child.

This class also has a speech therapist named J.K. working with K.D. J.K. has a Master’s Degree in speech, and her testimony (described infra) further proves that the Private School Program is appropriate for Student. J.K. is in the classroom and helps K.D. to modify the curriculum according to the developmental language of each student using curriculum maps, which break down the curriculum by months, by topics, and by vocabulary and skills taught. Tr. at 2116. This witness then testified that in this language-based curriculum, she uses modeling as well as cuing, repetition and prompting, as well as making eye contact as strategies.

Importantly, this teacher states: “We are constantly modeling language throughout the day for the students.” Id. at 2118 (emphasis added). And, by “we,” K.D. includes herself, the speech therapist, the teaching assistant, the physical and occupational therapist, and counselors. Id. In my view, this “constant modeling of language throughout the day”, id,” is a key aspect of the Private School Program and is very different from the CSE Program, which CSE Program I have been convinced is not appropriate for Student by this child’s very low standardized test scores and the credible observations of Student functioning way below grade level.

Also, visual supports paired with language are used, such as charts, diagrams, sentence strips, and maps, as well as hands-on manipulatives and modeling clay are used in this language based program. Tr. at 2119-21. For reading, Student receives the Milestones and Wilson programs for both comprehension and decoding, respectively, for 30 minutes each week, four days per week in the 12:1;1 classroom, and once per week in the 6:1:1 classroom. Tr, at 2122. The writing program also seems quite appropriate in that it occurs three times per week for 30 minutes each time, and the students are grouped for both writing and reading at their functional levels. Tr. at 2122-23. K.D. further testified that Student's functional level according to Reading Milestone placement tests administered when he arrived at Private School in September 2011 was Level 2, which is a first grade level, tr at 2125, and he now (as of end of April 2012) is on a level 3, which places him at the end of first grade. Tr. at 2125. And according to Wilson decoding assessments, Student was functioning at an early second grade level at the beginning of School Year 2011-12 and is as of May 2012 functioning in decoding at a mid second grade level. Tr. at 2127. And, in writing, this teacher testifies that Student was functioning at an early second grade level in September 2011. Tr. at 2127-28.

As to management needs and social skills, Student’s teacher states that Student “needs constant redirection due to his distractibility. He also needs reminders to sit straight, put his feet on the floor ...He needs reminders to stop playing with his hair [and] gets very, very visually engaged and needs reminders to focus back on what we are doing.” Tr. at 2130. This is managed by Private School's classroom management plan. Id. at 2131. Two aides are in the classroom as well, and one sits right next to Student. Id. Slight improvement by Student in his management needs is noted by Student's teacher in his sitting better in the class and in there needing to be a few less reminders regarding attending to a task. Id.

The results of Private School’s independent standardized testing in November 2011, as also described in Parent Exhibit JJ , were referred to by K.D., where she indicated in testimony that Student's passage comprehension tested at 1.6, which is mid first grade level Tr. at2135. And, his teachers indicated that he was behaving below his age level. Tr. at 2136. K.D. agrees, and states that Student makes very inappropriate comments out loud like that he is going to be in your dreams tonight. Tr. at 2137. He also self-talks and makes inappropriate noises throughout the day, humming. He laughs at inappropriate times and does not have eye contact. Tr. at 2137-39. This witness also comments that Student often prefers to stay alone rather than interact, although at Private School, she has seen some improvement in this. Id. at 2140.-41.

Also key is the credible testimony of K.D. that the language skills and needs of Student are very similar to those of the other students Student is placed with in his 12:2:2 class. Tr. at 2141. She states that Student is in the lower half of the class in reading and in the middle or lower half of the class in terms of language. Id. at 2141-42. And, she testifies that some of the students in the class have a lot more language which Student can use as models concerning interaction with others. Tr. 2141-42. Student is in the higher half of the class in math and they all have similar problems. Tr. at 2142. His grade level in math is approximately second grade in some math areas. Id.

Per Student’s teacher’s Report and testimony, Student is in the lower half of his class at Private School in terms of social needs and “[t]hey all have difficulties interacting appropriately with others [and] being aware of others. She continues: “Many need help with maintaining eye contact or initiating or elaborating in a conversation, expressing feelings appropriately.” Tr. at2144. As to progress with these issues, Student's teacher states that “we are seeing him become more aware.” Tr. at 2145.

And, Private School has prepared Proposed IEP Changes for Student because, K.D. testifies, his IEP was not accurate for his abilities in reading and math. Tr. at 2146-47. Also, Student's teacher testifies that the goals prepared by the CSE at its Spring 2011 Meetings were not appropriate, and she found out about that around November 2011, after the first marking period at Private School. Tr. at 2148. At that time, new goals were prepared by Student's teachers and therapists. Tr. at 2148-49. K.D. testifies in that regard that some of the IEP goals are “too much for him,” Tr. at 2152, and to revise the goals which had this child listed as functioning on a second grade level, because he was, according to observations and testing by Private School, functioning at a mid first grade level. Tr. at 2153 Another CSE goal was modified by Private School at that time to reflect that Student could not write and thus could not perform the goal of defining a word in writing. Tr. at 2154. Thus, the vocabulary words were lessened, at 2155, and it was stated that Student is improving towards that goal. Tr. at 2155-56. Other reductions of the CSE goals, including math goals, are set forth at Tr. at 2158-2161.

This cogent testimony by K.D. was not adequately refuted by any means by the District. Neither were the conclusions reached by this witness undercut concerning the progress made by this child during School Year 2011-2012. That progress by this child while at the private school is very believable because Private School has been “involving language from the moment he walks in to the minute he leaves,” Tr. at 2164 This teacher further states that (1) Student has gone in reading comprehension from a mid-first to an end of first grade level; (2) Student is moving well through the decoding program; (3) He is able to identify simple story elements, characters, settings, author, title, beginning middle end; (4) Socially, Student is also making improvements. Tr. at 2163.

And, the thrust of this testimony from Student's teacher showing that the Private School Program was very appropriate for Student was not undercut by testimony elicited during cross examination, even though it was brought out that the Private School Program does not assign a specific aide to Student. However, a Behavior Intervention Plan was implemented for this child relatively quickly. It is my conclusion that it is not a fatal defect for this program not to have an aide specifically assigned to Student in that the classes have two teaching assistants in them and other professionals working with them and are, at largest, no larger than 12 students. Tr. at 2167-2211, 2183.

Lastly, the parents had J.C., Student’s speech provider for both individual and group sessions, testify to show that the Private School Program is very appropriate to meet the myriad needs of Student. Tr. starting at 2228. She testified that she spends time in Student’s classroom every day. Tr. at 2231. And, consistent with that testified to by K.D., Ms. K. indicated that they have to break down curriculum and then focus on the students developing their language. Tr. at 2235. She described the use by service providers of curriculum maps which break down curriculum and are on computer and to which all have access, Tr. at 2236-37, and of the socialization program, which provides Student with peer modeling. Tr. at 2239-40.

Thus, I conclude that even though there are no typically developing students at Private School, Student receives the benefit of peer modeling which is often obtained through being with typically developing peers through peer modeling in the socialization program at Private School, Id. Important to this conclusion is the unrebutted fact testified of Student being in the middle to by Ms. K., tr. at 2240, and by K.D., seediscussion supra or lower half of his class in terms of language ability, that there are students with higher language skills than Student who can act as peer models for him.

The visual supports described by K.D. are also described by Ms. K., including posters and manipulatives, word walls for reading, as well as sequencing cards, Tr. at 2242-45. Student also has reminders on his desk to help him with his attending. Id at 2242. Ms. K. also confirmed a total of 6 days of training available for service providers at Private School. Tr. at 2247.

Ms. K. testifies that she provides individual language therapy to Student once per week and in a group of three for three times per week. Tr. at 2248. She also states that she is in Student’s classroom every day and is there for lunch every day. Tr. at 2249. Student is in a couple of different groups for speech, and was working at the time of Ms. K.’s testimony in May 2012 on group participation and board games, where “[t]he main focus is to get him interacting with his peers.” Tr. at 2250.

This witness also states that when he entered Private School in September 2011, Student had predominantly scripted language and a lot of his speech was off topic. Id. She continues, stating that his attention span was “a lot lower for various activities was a lot lower than it is now.“ and that his comprehension “of anything he read was basically at first grade level when he entered.” Tr. at 2251. Ms. K. also offered a theory related to Student’s classification of autism for the large amount of scripting which Student entered Private School with, which is called theory of mind and theorizes that Student speaks in language he knows thinking that the listener has enough information to understand what he is saying. Tr. at 2253-55. Her approach is to repeat what Student says in his scripted language and try to get more information with which she can respond to Student and give him more appropriate speech models. Id. And, Student’s speech therapist states that she has seen scripting a lot less now during group sessions, maybe now less than half of the time as opposed to about 7 out of 10 times than when he started in September Tr. at 2256.

And, Ms. K. also testified that Student’s grade level in testing done at the beginning of School Year 2011-2012 put him at mid first grade with prompting. Tr. at 2377-78. Furthermore, Ms. K. establishes on direct that the fourth grade curriculum at Private School is quite different from that of the fourth grade in a public school and very appropriate for Student. This is because the focus of the Private School Program is on language, which is developed by the team together for the curriculum maps. Ms. K. states that the focus in Student's class is “on the language and then fourth grade concepts are introduced through that.” This witness continues: “And the children are introduced to it, the fourth grade concepts but they are not in detail or in depth exposed to it...In the classroom they have both teachers breaking it [the language] down for them and the TAs in the room addressing the children’s needs, redirecting them as needed”. Tr. at 2286-88. Accord. Tr. at 2272-73.

Student’s speech therapist held up well under cross examination and the basic points she made establishing that the Private School program has worked very well for Student remain unrebutted. That Ms. K. has never provided services in a public school, has never visited the Public Schools, and may not be familiar with how curriculum is modified in the School District, which was established under cross-examination, tr. at 2299-2308, is tangential at best to the relevant points established by this witness. Also tangential is whether students at Private School achieve mastery level on state assessments, Id. Tr. at 2357-58. The relevant and major point is that the Private School Program capably identified and addressed the substantial needs of this child—including the need for a language based program throughout the school day--which needs had not been adequately addressed in District. Therefore, the Private School is a more than appropriate parental placement under the controlling legal standards.

Private School Was The Least Restrictive Environment Available To The Parents

As noted above, to obtain reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specifically 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. See Gagliardo_v. Arlington Cent. Sch. Dist, supra at112. Also importantly, Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education in the least restrictive environment. See Frank G. v. Bd. of Ed., supra at 364-65.

Thus, parents may not be subject to the same mainstreaming requirements as a school board. Frank G. at 364; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d 96, 105, citing to Warren G. v. Cumberland County S.D.,190 F.3d 80, 84 (3rd Cir. 1999); and Cleveland Heights-University Heights City Sch. Dist. v. Boss,144 F.3d 391, 399-400 6th Cir. 1998) (holding that a private placement’s failure to meet IDEA’s mainstreaming requirement does not bar reimbursement).

As discussed above, on February 3, 2011, Mother contacted J.S., the District's Coordinator of CPSE and Elementary Special Education, to report the team’s concerns, request a meeting to discuss the next step in addressing Student's severe language delay and amend the IEP. See Ex. B. Tr. at 1453. In that email, Mothe also asked J.S. if the District had a language-based program that would address Student’s language delay, or if she knew of other schools that might provide such support. See Ex. B. at p. 2.

I find the testimony of Mother credible that at a March 2, 2011 meeting with J.S., Mother asked if there were other special education programs that might address Student’s severe language delays. Tr. at 1496. At that meeting, public school and private school programs were discussed, including New Hyde Park SD, Herricks SD, BOCES, The Rebecca School, AHRC, Learning Spring, and Private School. Tr. at 1456-1460. During the hearing J.S. confirmed that Mother asked her to look at other schools, either to incorporate techniques used by those schools in the District's program or to see whether another school might be appropriate. Tr. at 555.

According to Mother’s testimony, which I find credible, J.S. advised her that BOCES and AHRC were not appropriate and that the District does not send students to Private School. Tr. at 1457-1460 Since BOCES and AHRC had students with more severe disabilities than Student, and the Parents could not explore other public schools without the District's support, I find believable the Parents’ contention that they were limited to private special education programs that could address Student’s language-based disability. They chose aprogram that provided a free and appropriate education in the least restrictive environment available to them.

Accordingly, I find under the applicable law cited above and based on the testimony of Dr. R., K.D., Ms. K., as well as Parent Exhibits Il and JJ in evidence and the information concerning Student given in testimony by Dr. H., that the parents have clearly fulfilled their burden to establish that the private school program at Private School into which they unilaterally placed Student is appropriate to meet his needs.

THE EQUITIES FAVOR THE PARENTS IN THESE CIRCUMSTANCES

It has been convincingly established that the equities favor the Parents in their dealings with the District. In essence, they have shown that they acted in good faith and the District has not shown otherwise.

The equities should be balanced as part of this inquiry, as is required under Burlington and Carter, and as is reiterated by the Second Circuit in Gagliardo, 489 F.3d at 112. With respect to equitable considerations, the IDEA provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. 20 U.S.C. § 1412[a][10][C][iii]; S.W.v. New York City Dep't of Educ., 2009 WL 857549, at 13-14 (S.D.N.Y. 2009). None of these criteria apply to the Parents herein.

The District raised a good deal of unsubstantiated conjecture about, for example, the parents having impermissibly selected Private School as this child’s placement at the time of this child’s visit there during the Winter of 2011 and/or prior to the time the two Spring CSE Meetings occurred on May 27" and June 16, 2011. Therefore, the District argues, the parents failed to cooperate with the District concerning placement of this child in that they had prejudged the outcome of these CSE Meetings and did not participate in them in good faith in trying to ascertain an appropriate placement for Student. However, these unsupported arguments were convincingly rebutted by the Parents at the hearing.

First, that a disabled child with language issues and a diagnosis of autism states to his District teacher or others in the District that he has just seen his “new school,” or words to that effect, is not convincing to me of any prejudgment or pre-selection of Private School by the parents. Inherent in his diagnosis of autism, Student has issues with his perception of the world around him and it was documented at this hearing that he has substantial language issues.

In addition, that Student in fact visited Private School in the Winter of 2011 does not mean that his parents had pre-selected this private school, as confirmed by the credible testimony of Dr. R., who testified that Private School schedules visits for students prior to their selection of Private School as a placement for the child. Not all children who are observed at Private School and/or in their current school classes, as Student was prior to the Spring 2011 CSE Meetings, are recommended to come to Private School. Tr. at 2090. I also note in this regard that the Parents’ Tuition Contract with SLCD is dated June 20, 2011, and their first payment to Private School did not occur until that same June 20, 2011 date, which is after the two CSE Meetings occurred on May 27 and June 16, 2012. See Parent Exhibits FF and GG. And, there is no credible evidence that the Parents knew they were placing the child at Private School at or before these two CSE Meetings and failed to inform the District of this placement.

Furthermore, the record reveals that the Parents made many attempts to resolve their differences with the District so as to avoid a unilateral placement both before and after the May and June 2011 Annual Review meetings. The emails sent by Mother to both J.S., Exhibit B, and to Student’s teacher, Exhibit X, indicate efforts by the Parents to resolve placement issues with the District before the Annual Review Meetings. After the Annual Review Meetings, Exhibits E and E-1 indicate an effort by Mother to reach out to Allison Rushforth so as to avoid a unilateral placement. And, importantly, the District did not rebut the Parents’ contention that they notified District of their upcoming unilateral placement of Student at Private School on July 13, 2011, which is within the required 10 business day notice period. See 20 U.S.C. Sec. 1412[a][10][cl[iii].

There having been no other credible or convincing allegations by the District of the Parents not having the equities on their side, e.g., lack of cooperation by the parents, I hereby find and conclude based on applicable law and these facts that the equities favor the Parents concerning their due process request and they should be reimbursed for the costs of tuition at Private School for School Year 2011-2012 in the amount they actually paid to Private School up to the yearly cost specified in their Tuition Contract which is $46,000. See Parent Exhibit FF.

CONCLUSION AND ORDER

Based upon all of the foregoing, I hereby conclude that the placement and program set forth in the IEP's dated May 27, 2011 and June 16, 2011 are inappropriate to meet the needs of this child. I further conclude that the placement made by the Parents for this child at Private School is appropriate and that the equities favor the Parents in their dealings with the District.

Therefore, I hereby order that the costs of tuition paid by the Parents for the Parents’ placement of this child for the School Year 2011-2012 at the Private School are to be reimbursed in full to the Parents by the District in the sum of up to $46,000.00 upon presentation to the District of proof of such payment or payments having been made by the Parents to Private School for School Year 2011-2012.

Dated: August 28, 2012

SUSAN MILLS RICHMOND, ESQ. Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the School District 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.” (8 NYCRR 279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms can be found in the Office of State Review website: www.sro.nysed.qov.

2 It should be noted initially that the District tries to discredit Dr. H.'s Neuropsychological Evaluation and testimony based on the fact that she is not a New York certified school psychologist and, as of the time of her testimony, had only a limited license in psychology, which means she cannot conduct a psychological evaluation unless she is under supervision. There is no debate over the fact that Dr. H. indicated that she had a supervising psychologist in her Evaluation, which is Parent Exhibit G, and also indicated in unrebutted testimony that she has performed evaluations on more than 400 children, and that she does about 20 such evaluations per year, which includes school screenings. Tr. at 1197. She also testified that she has completed her doctor of psychology, which is a Psyd, and, which is a combined program in school clinical child psychology. Tr. at 1190. In addition, there is no debate over the testimony she gave that Dr. H. worked as a psychologist for 14 years for the Board of Services in their learning centers, where she was involved with, among other things, screening, psychoeducational and neuropsychological testing. Tr. at 1191. Based on these credentials, including an advanced degree in psychology and years of experience assessing and evaluating children, I find her qualified to have written the Neuropsychological Evaluation and to give her expert opinion about this child.