Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE DEMAND FOR DUE

PROCESS made by the Parents on behalf of a Disabled Child, P.H.

Petitioners

- against — OF IMPARTIAL HEARING

OFFICER

THE BOARD OF EDUCATION OF THE

ARLINGTON CENTRAL SCHOOL DISTRICT

Respondent

DECISION AND ORDER

INTRODUCTION

This hearing was brought on by a request for an Impartial Hearing “to address the Decision denying full reimbursement for tuition ($26,000.), uniform ($264) and fees ($243.17)

for [P.H.] during the academic school year 2009/2010.” THO Exhibit 1. The Demand, dated March 28, 2011 goes on to state that “[t]his was not a unilateral placement decision and was discussed at the October, 2009 CSE meeting when it was determined the district would be unable to meet his needs in a regular school day.” The Demand was addressed to the Assistant Superintendent for PPS of the Arlington Central School District (“District”). Upon receipt of the Demand for an Impartial Hearing, I was appointed Impartial Hearing Officer (‘THO”) by the District to adjudicate this matter. Attorneys for the District, by letter dated April 7, 2011, responded to the Demand and requested dismissal of the Due Process action. THO Exhibit 2. District’s counsel alleged that the Parents’ hearing request was vague, insufficient and failed to contain necessary facts required to initiate a due process hearing. Further, the District’s counsel moved for a dismissal based on collateral estoppel, alleging, in a nutshell, that the parents were merely attempting to re-litigate issues raised in a due process hearing regarding the 2008-2009 school year, issues dismissed by the State Review Officer (“SRO”). THO Exhibit 2.

By Letter Decision dated April 14, 2011, I found against the District’s motion to dismiss as the Parents herein are contesting an IEP subsequent to that already contested as well as demanding remedies not at issue in the prior litigation. IHO Exhibit 3. I ruled there was no bar to a contest regarding the appropriateness of the 2009-2010 IEP based upon litigation regarding the 2008-2009 school year. Notwithstanding my denial of the District’s motion to dismiss, I agreed with District’s counsel that the Due Process Demand was insufficient and did not meet the requirements set forth in the Commissioner’s Regulations at 8NYCRR §200.5(@)(1). I dismissed the Parent’s Due Process Demand, without prejudice, granting the Parents fourteen (14) days in which to amend their Impartial Hearing Demand to comply with the legal requirements therefor and to address the specific infirmities which I cited in my Letter Decision.

After requesting and receiving an extension for the time in which to file, the Parents filed and served upon the District an Amended Due Process Complaint dated May 17, 2011. IHO Exhibit 4. Specifically, the Amended Due Process Complaint alleges that the Individualized Educational Program (“IEP”) developed at an August 27, 2009 Committee on Special Education (“CSE”) meeting, and revisited at a CSE meeting on October 14, 2009 was inappropriate and did not properly address P.H.’s “significant needs”. [HO Exhibit 4.

The Parents suggested that their son’s intensive speech/language needs and reading and writing disabilities were such that the District did not appropriately program for him. In light of their concerns, the Parents had placed P.H. at a private school, The Kildonan School, for which they were requesting tuition reimbursement as well as seeking compensatory services in the areas of speech, language, reading and writing. [HO Exhibit 4.

By letter dated May 20, 2011, District’s counsel filed its response to the Parent’s amended allegations and, once again, requested dismissal of the Parent’s Due Process Demand on the basis of collateral estoppel alleging that the Parents were attempting to re-litigate factual issues already decided in an earlier proceeding. District’s Counsel argued as follows: The amended complaint makes it clear that the Parent is alleging that the recommended program of consultant teacher services for English and Global studies, resource room and Math resource room, are not appropriate and that [P.H.] requires additional speech services based on the independent evaluations of Dr. G. and Ms. D.-L.. The SRO has already addressed those evaluations and found the recommended program, which is the same recommended program for the 2009-2010 school year, provided [P.H.] with FAPE.

Therefore, the parent should be barred from raising this complaint by the doctrine of collateral estoppel. THO Exhibit 5.

By letter dated May 24, 2011, I denied District’s motion to dismiss based upon litigation regarding a prior school year as there was no indication in the District’s motion that the SRO, in the prior case, made any determination on the appropriateness of the 2009-2010 IEP, the JEP at issue in the Parent’s current action. [HO Exhibit 6. I found that the Doctrines of res judicata and collateral estoppel do not apply in a case regarding entirely different school years, different TEPs, different requested remedies and potentially different factual issues. Additionally, finding that the Amended Due Process Complaint met the Commissioner’s due process demand requirements, I stated that the resolution period had started to run as of the filing of the Amended Due Process Complaint and, therefore, scheduled a pre-hearing conference call.

The parties were unsuccessful in resolution and the hearing began on August 16, 2011.

The hearing took place over 8 days and concluded on January 6, 2012. There are 1,255 pages of transcript (“TR”), and admitted into evidence are 6 Impartial Hearing Officer Exhibits (“IHOEX”), School District Exhibits #1-4, 6, 13, 14, 16-42, 45, 49, 50, 52 and 54-59 (““SDEX”) and Parent’s Exhibits F, G, H, I, J, K, L, M, N, AA, FF and GG (“P.EX”).

FINDING OF FACTS

As stated above, the parties herein engaged in a Due Process proceeding, through the State Review Officer (‘SRO’) level, regarding the 2008-2009 school year. In the SRO’s

Decision, No. 09-139, P.K. devotes over 11 single spaced pages to a factual background regarding P.H.’s education from preschool through a CSE subcommittee meeting on October 8, 2008. SDEX 1. As such, I have no choice but to herein adopt the Findings of Fact, up through October 8, 2008, set forth in the SRO’s Decision dated January 20, 2010.

In the current Hearing, the Arlington Central School District (“District”) took the position that since the SRO had found that the 2008-2009 IEP for P.H. was appropriate that the 2009-2010 IEP was likewise appropriate since it was nearly identical. SDEX 1 and 16. P.H. did not participate in the 2008-2009 program that was found appropriate and was, again, not in a District program during the 2009-2010 school year. SDEX 16. Further, the District was not put on notice that P.H. was attending the Kildonan School until the Parent requested tuition reimbursement during the following school year. SDEX 16. In support of its position, the District put on District administrators and teachers describing the IEPs offered P.H. and what was taught, or would have been taught him, in his classes during the 2009-2010 school year if he had been in attendance.

Although the pro se Parent understood that this proceeding solely regarded the 2009-2010 school year, a great deal of Petitioners case rested upon reports made in 2008, reports available to the prior [HO and, ultimately, the SRO. Transcript 862-863, SDEX 1. In a nutshell, the Parent felt that Dr. G.’s report, dated January 3, 2008, finally gave Petitioners, and the District, insight into P.H.’s educational issues but that that report was not given sufficient credence by the District’s CSE which reviewed it in March of 2008. Transcript 864-865, 920. Mrs. H stated that it was her belief that the 2008-2009 IEP proffered by the District did not address P.H.’s needs according to data provided to the District. Transcript 921. Mrs. H. further stated that she desired to place P.H. in Kildonan during the 2008-2009 school year, but he was not placed in Kildonan for financial reasons. P.H. did not attend the District’s High School during 2008-2009 and 2009-2010 because of issues Petitioners, including P.H., felt he had with the District. Transcript 922.

P.H. claimed that he had been given answers to tests in the prior years, had revealed that information and feared retaliation. Transcript 922. The Parent also believed that the District denied P.H. the language based program recommended by E.D.-L., the Parents speech language pathologist, in an independent speech and language evaluation dated September 2, 2008 [School District 32, Transcript 923]. When reminded that the issues in this hearing regarded the 2009-2010 school year, the Parent again testified that Petitioners’ primary concern for the 2009-2010 school year was the lack of speech services offered by the District which had been recommended by the independent evaluator. Transcript 925. The Parent stated that she believed that the 2009-2010 school year would go the way of all past years and that the District simply wanted to rebut the Parent’s experts based upon whether P.H.’s condition was appropriately considered “dyspraxia” or “apraxia of speech”. ‘Transcript 925. Mrs. H. understood her expert’s evaluation to require that P.H. be placed in either a language enriched environment, language based school, or a school that would give intensive speech therapy. Transcript 926. In a nutshell, Mrs. H.

believed that P.H. would not get the intensive language based program he needed during the 2009-2010 school year if he remained in the District program. Transcript 927-928.

Mrs. H. believed that P.H. would get the coherent pedagogical approach that P.H. needed in the Kildonan School, rather than the eclectic mix provided by the District. Transcript 928.

Mrs. H. alleged that goals agreed upon at an August 2009 CSE meeting regarding reading were not put on a 2009-2010 IEP. Transcript 922-923. Mrs. H. alleged that the District’s 2009-2010 IEP lacked the speech services that P.H. needed and the integrated services that would help P.H.

learn to write. Transcript 926. Finally the Parent believed, over many years of his education, that there was not a significant change in P.H.’s academic abilities while in a District program.

The Petitioners, however, presented no new evaluations subsequent to those provided the District prior to the Impartial Hearing regarding the 2008-2009 school year. Transcript 863.

C.B., the District’s Supervisor of Special Education, knew P.H. as both a middle school and high school pupil. Transcript 187. As a middle school student, P.H. was not perceived by the District as having significant issues. Transcript 187. Mr. B. testified that upon receipt of Dr.

G.’s November, 2007 evaluation, there was concern that Dr. G. had used the term dyspraxia rather than apraxia of speech, Transcript 196-197. As a result, the District did “some supplementary testing in the area of oral motor as well as articulation”. Transcript 197. The

1 This issue was repeatedly debated by both Parties. This debate consumed too much time and effort as it is the educational manifestation of a disability that must be addressed, not its etiology or specific diagnoses. District’s CSE recommended P.H. be placed in a language arts support class to address P.H.‘s oral reading and poor fluency skills. Transcript 197. It was also felt that writing was a significant issue for P.H., albeit an issue that could be addressed in a resource room. Transcript

198-199, At this hearing, IEP’s were entered into evidence for the 2008-2009 school year from CSE meetings held on June 18, 2008, August 22, 2008 and October 8, 2008. School SDEX 36,

33 and 31.

Ultimately, the District’s recommendation for the 2008-2009 school year was partially intended to reflect Dr. G.’s concerns regarding P.H.’s working memory deficits. Transcript 203-

205. In light of the evaluation, the District offered P.H. a co-taught English class, a global studies lab, a math resource room, a regular resource room, a math algebra A class to be taught over 2 years, a slower paced science class, speech and language therapy 2 times per week, as well as test and program accommodations. Transcript 203-205. P.H. would also be placed in a “foundations of reading and writing class”. Transcript 206. The District’s CSE also met on August 22, 2008 to review the speech language therapist’s conclusions. Transcript 208. After discussing the evaluation with the speech teacher, who incidentally was on vacation and called in, no changes were made to the IEP. Transcript 208-213.

P.H. did not attend the Arlington Central School District or Kildonan School during the 2008-2009 school year. Transcript 214. After the District received a copy of E.D.-L.’s evaluation, it scheduled a CSE meeting, which was held on October 8, 2008. Transcript 215 —

217. At that CSE meeting, the IEP was changed so that P.H. would receive individual speech language therapy two times per week. Transcript 219. Some goals were changed to reflect the added speech services. Transcript 219. The District expressed some concerns regarding P.H.’s non-attendance of the public school and offered counseling services. Transcript 219. Mrs. H.

declined those counseling services. Transcript 220.

For purposes of planning the 2009-2010 school year, the District’s Committee on Special Education first met on June 22, 2009. Transcript 226, SDEX 30. That particular CSE meeting dealt specifically with P.H. and extended school year “ESY” services. Transcript 227. P.H. had, for many years, received ESY services. Transcript 226-227. Although the June 22" CSE meeting was primarily about ESY, it was also to gather some updates regarding P.H. since he had not attended the District’s school during the 2008-2009 school year. Transcript 227. During the 2008-2009 school year, P.H. attended the Konsul School, a tutoring program in Hyde Park, New York. Transcript 228. The District also desired to get testing results from P.H. as it had not seen him for almost a year. Transcript 227. P.H. did not attend ESY services during the summer of 2009. Transcript 228. Mrs. H. initially contested the appropriateness of the summer IEP but later withdrew her complaint. Transcript 1048 SDEX 58,59.

On August 27, 2009, the CSE reconvened to make recommendations for P.H.’s 2009-2010 school year. Transcript 230-231. At that meeting, Mrs. H. offered additional information regarding P.H.’s social history in the areas of after school activities, interests, medical information and a “whole bunch of stuff.’ Transcript 231. Mrs. H. had given the District consent to do academic testing. Transcript 232. Apparently, that testing had been done by a school employee who was not present at the meeting. Transcript 232. The testing was primarily in the areas of reading, writmmg and math. Transcript 232. The academic testing performed by the District showed that P.H.’s reading composite was at the 12" percentile, math composite also at the 12" percentile and written language at the 7” percentile. SDEX 28. At the August 27, 2009 CSE meeting, the District agreed to the same level of services offered P.H. the previous school year. Transcript 235. The District recommended “a 9" grade program all over again...”.

Transcript 235. Since there was no evidence that he had passed any 9" grade classes, the CSE recommended 9" grade co-taught English consultant teacher, Global Studies Lab, Math resource room, resource room, counseling, speech and language therapy, test accommodations and program accommodations. Transcript 235. The consultant teacher English 9 services, as well as consultant teacher Global Studies Lab, Math 9 resource room and resource room are all offered

P.H. as “non-integrated” classes on the District’s IEP dated August 27, 2009. SDEX 27."

Mr. B. testified that the participants at the August 27, 2009 CSE meeting worked at redrafting the goals, especially reading goals. Transcript 237. Notwithstanding the language changes, Mr. B. testified the substance of the goals are just the same.... Transcript 238. During the 2008-2009 school year, P.H. was offered speech language therapy 2 times per week, 40 minutes per session, in a group setting. SDEX 31. At the August 27, 2009 CSE meeting, P.H.

was offered speech language therapy for the 2009-2010 school year at the frequency of^[2] times per week, 30 minutes per session in a 5:1 ratio and individual speech language therapy 1 time per week, 35 minutes per session. SDEX 26.

The Director of Special Education testified that, in ight of P.H.’s short term memory issues, P.H. should be provided information in various formats, he needs information re-taught, he needs a great deal of practice to be able to move information into his long-term memory, he needs instruction in a multi-modality approach, he needs to hear information, work with it, write it and have that information reinforced. Transcript 307. Mr. B. believed that these skills could be taught in a studies skills class with re-enforcement from the study skill teacher.’ Transcript

307-308. SDEX 26. Mr. B. testified that a resource room provides a lot of the similar expectations in a high schooi setting as the studies skills class in a middle school setting.

Transcript 309. The expectation appears to be that high school students should be “able to articulate what is going on in the classes themselves and not rely upon a teacher to remind them what the responsibilities or expectations are. There was a huge shift in approach to kids to step back a little and have them negotiate that on their own.” Transcript 309.

Mr. B. testified that in resource rooms at the high school level “students have begun at least the independence to advocate for themselves, to know how to work with teachers in terms of articulating their accommodations, to be able to walk into a room and say I was learning about quadratic equations in math and I didn’t understand it, for example, to sit down with the teacher and have the teacher say ok, tell me what you have learned today, what we need to work on, would be able to prioritize a little bit....”. Transcript 314-315. Mr. B. testified that the 2009-2010 IEP differed from that of the prior year as an individualized speech session was added, and the goals were largely revamped, especially the reading goals. Transcript 327. The District was emphasizing re-teaching and re-enforcement to address P.H.’s memory issues. Transcript 329.

Mr. B. testified that the teachers assigned were tailored to fit in to the support program offered

P.H. Transcript 331.

The Director of Special Education testified that the District has always been concerned about P.H.’s speech and language issues. That as he got older, P.H.’s issues began to manifest in reading, writing and math. The District believed that the basis for all of these concerns, came

3 There was no study skills class proposed in the August 27, 2009 IEP for the 2009-2010 school year, but for a resource room. A studies skills class was proposed during the 2007-2008 school year, two years prior to the year at issue. from a speech and language impairment in which, receptively, P.H. does not understand or retain language components. Transcript 341-342. The Director of Special Education maintained that Dr. G.’s diagnosis of dyspraxia had little basis as Dr. G. is not a speech and language pathologist.

Transcript 325. The District’s speech and language pathologists opined that P.H.’s condition was not appraxia but rather language working memory impacting P.H.’s ability to pull words spontaneously in conversation, to manage language components that go with reading and writing and that he suffers from short term memory deficits which impact the ability to manage academics consistently. Transcript 342-343.

P.H.’s 2009-2010 IEP proposed that P.H. be in an English 9 non-integrated class with a consultant teacher. Exhibit 26. In fact, that was a typo as it was supposed to be an integrated class in which a consultant teacher was placed in a regular English 9 class. Transcript

360. The IEP went to the Parent with this mistake on it. Transcript 361. What the District meant to propose was a co-taught English class with both a Special Ed and regular Ed teacher.

Transcript 361. The Director of Special Education believed that that was what was described to the Parent at the CSE meeting. Transcript 361. The District was proposing that P.H.’s very deficient reading skills be addressed “in the foundations of reading and writing lab, a regular education academic intervention services class co-taught by a reading and a special education teacher. Transcript 364-365. The District alleged that it had addressed P.H.’s reading issues in 6" and 7" grade special classes and AIS services at the time when he was in 8" grade.

Transcript 365-366. Explicitly, the District did not proposed Special Education services to address P.H.’s reading deficits during the 2009-2010 school year. Transcript 367. The District, however, added 9 reading and language goals into its 2009-2010 IEP. Transcript 1024.

By letter dated September 19, 2009, Mrs. H. wrote Mr. B. that she had received and reviewed P.H.’s proposed IEP for the 2009-2010 school year, received his proposed school schedule and stated that they were not appropriate, and “does not provide him equal access to programs in the district as a 9TM grader.” SDEX 24. She goes on to reject P.H.’s IEP and states that “I have no other alternative then to seek an appropriate placement with equal access to all programs and activities for the 2009-2010 school year him[sic]. As a requirement by law, I consider this letter to serve as notice that the cost of P.H.’s alternative education for the 2009-2010 school year would be the responsibility of the Arlington Central School District”. SDEX

24, Mr. B., in response to Ms. H’s letter, writes that he is in receipt of that letter, sets forth the CSE’s willingness to reconvene to further discuss P.H.’s proposed program and states as follows: Regarding the notice ‘that the cost of P’s alternative education for the 2009-2010 school year will be the responsibility of the Arlington Central School District,’ I must inform you that the District will not pay for an alternative placement when it has an appropriate program in the least restrictive environment.

SDEX 23. Thereafter, the District scheduled a CSE meeting for October 14, 2009. Transcript

247, The first letter explicitly requesting Kildonan tuition retmbursement for the 2009-2010 school year was a letter from Mrs. H. to the Director of Special Education dated January 28, 2011. Transeript 257, SDEX 17. The District believes that the 2009-2010 IEP for P.H. is appropriate because it provides the same supports as the prior IEP. Transcript 271. The only real difference in the proffered programs was the addition of speech and language services at Mrs. H.’s advocate’s request for the 2009-2010 school year. Transcript 274. The District was proposing that P.H. receive the same teachers in 2009-2010 as he would have received in 2008- 2009. Transcript 288. P.H. would have been enrolled in two classes with Special Education teacher J.M..

Transcript 23. Prior to the beginning of the 2009-2010 school year, Mr. M. reviewed P.H.’s IEP.

Transcript 24. P.H. would have been the fourth student in a “math resource room” that Mr. M.

taught during the 2009-2010 school year. Transcript 26-27. The math resource room is a class which provides extra math support for those students enrolled m the District’s 2 year math curriculum. Transcript 29. The teacher testified that he comes up with alternative ways of presenting the information to students with math reasoning problems. Transcript 38. The teacher utilizes a multi-sensory approach. Transcript 39. Mr. M. is not credentialed as a math teacher. Transcript 41.

Mr. M. also taught the resource room to which P.H. would have been assigned during the 2009-2010 school year. Transcript 44. There were 3 or 4 other students assigned to that resource room. Transcript 45. Generally the students in that class had weaknesses in written language, reading, and mathematics. Transcript 46. Mr. M. gave extensive testimony regarding how he would deal with the goals stated on P.H.’s IEP. Transcript 48-57.

Mr. M. believed, upon reviewing P.H.’s 2009-2010 IEP, that P.H. had weaknesses in working memory, processing skills, computation, math reasoning, general processing, memory and retention. Transcript 34, SDEX 26. As such, Mr. M. deemed it appropriate to repeat information and present information at a slower pace. Transcript 80. P.H.’s short term memory issues, would, likewise, be addressed through repetition. Mr. M. believed that high school students should be self-advocates, responsible, and comfortable in communicating with the Special Education teacher. Transcript 46.

The District elictted testimony from L.K., a Certified Special Education teacher regarding her Global Studies lab. Transcript 375. P.H. was on her roster for the 2009-2010 year, but Ms. K. went on maternity leave following the first couple of weeks of the school year through March 1, 2010. Transcript 377-378. She testified that the Global lab was set up to assist students with reading, writing, elaborating, critical thinking, abstract thinking, making inferences, test taking strategies and essay composition. Transcript 379. Based upon her review of his IEP, Ms. K. believed P.H. to be a child with stronger receptive then expressive language skilis. Transcript 383. She believed that he had developed some pretty intensive skills to compensate for his weaknesses.... Transcript 384. These weaknesses included reading, writing, expressive language, speech,... Transcript 384. She also said that she noted his working ‘memory to be very weak. Transcript 384.

Ms. K. testified that she utilizes a multi-sensory teaching approach in her classes by teaching “differently based on the strengths of each student or each group of students” such as utilizing a political cartoon for an artistic student, getting them to think of a deeper level by pretending that historical events had happened differently, having students roll play. Transcript

402-404. She testified that there was no difference between how she taught a class in 2008-2009 and 2009-2010. Transcript 405.

During the 2009-2010 school year, P.H. was scheduled to receive his General Global Studies education in the regular classroom. Transcript 419-420. Additionally, P.H. was to be in a Global Studies lab, 2.5 times per week. Transcript 420. SDEX 26, There would be 2 teachers in that special education class. Transcript 420-421. The General Ed teacher in the Global Studies lab would not be the primary Global Studies teacher. Transcript 421. The testimony was that there were less than 8 students in the Global Studies lab during the 2009-2010 school year.

Transcript 421-422. The students were not all similarly classified. Transcript 422.

The District offered testimony from J.N., a District reading specialist. Transcript

425, She is certified in both Special Education and Reading. Transcript 426, During the 2011-2012 school year, P.H. is enrolled in Ms. N.’s “Foundations of Reading and Writing” class.

Transcript 426. During the 2009-2010 school year, the school year at issue herein, Ms. N. knew of P.H. Transcript 427.

Foundations of Reading and Writing is a general education class designed to assist students who have difficulties with reading and writing. Transcript 428. There are both special education and regular education students in Ms. N.’s class. Transcript 429. Based upon her review of his IEP, Ms. N. testified that she believed P.H. needed a multi-sensory reading approach during the 2009-2010 school year. Transcript 431. She testified that she has different kinds of approaches to “walk” these students through their writing process. Transcript 432. She utilizes the Wilson Program, a multi-sensory approach similar to the Orton-Gillingham approach.

Transcript 434. She models writing and uses graphic organizers. Transcript 434-435. The reading goals on P.H.’s IEP would be addressed through utilization of the Wilson Reading

Program. Transcript 439-443. Ms. N. testified that her Foundations of Reading and Writing class works closely with the English classes. Transcript 447.

Ms. N. testified that in order to address working memory issues, she works on repetition, re-explaining and practice. Transcript 457-458. She believed that P.H.’s biggest difficulty in reading is decoding multi syllabic words. Transcript 464.

The District offered testimony from A.C., a Certified Special Education Teacher. Transcript 472. Mr. C. has never had P.H. in any of his classes. Transcript 473. P.H. was scheduled to be in Mr. C.’s consultant teacher English class during the 2008-2009 and 2009-2010 school years. Transcript 474. These classes were described as collaborative teaching models with both a certified English teacher and a certified Special Education teacher.

Transcript 474. Approximately 7-9 of the 24 or 25 students in the class would be designated

Special Education. Transcript 475-476. Typically, the classified students would have language disabilities. Transcript 477.

Mr. C. testified that he was not sure what diagnosis of dyspraxia meant or in fact what it was. Transcript 480. Nevertheless, Mr. C. believed that breaking down assignments and providing a structured approach assisted language impaired students with writing assignments.

Transcript 482. He uses graphic organizers to keep writing assignments organized. Transcript

484. Of the two teachers in the classroom, it would be the role of the Special Education Teacher to follow through on the goals set forth in the students’ IEPs. Transcript 486. Mr. C. believed that his instruction was “language based”. Transcript 494. Mr. C. assists the regular English teacher in modifying the teaching presentations. Transcript 497. Mr. C. provides services to both the special and regular education students in his class. Transcript 508.

The District elicited testimony from C.W., a District Speech/Language Therapist.

Transcript 509-510. Since P.H.’s return to the high school, Ms. W. has worked with him during the past year and one-half. Transcript 511. Ms. W.’s description of P.H.’s deficits were that he had poor working memory, some receptive, expressive language skill deficits and deficits in working memory vocabulary skills. Transcript 512. She recalled debates at CSE meetings regarding whether P.H.’s language skill deficits were dyspraxia, as diagnosed by the outside consultants, or apraxia of speech, as believed by the District’s therapist. Transcript 513. Ms. W.

utilizes a variety of strategies in working with language impaired students. Transcript 517-518.

Some of the goals developed by the Independent Speech and Language Therapist, Ms. D.-L.

were incorporated into P.H.’s 2009-2010 IEP. Transcript 524. Ms. W. testified that it really did not matter whether a child was labeled dyspraxic or apraxic, but that her services depended upon test scores, classroom performance and what she sees as the student’s needs. Transcript 543.

She believed that the speech three times a week was more than adequate to address P.H.’s speech and language skill deficits. Transcript 545-546. Ms. W. testified that the debate regarding dyspraxia or apraxia of speech was of little moment and that a program for P.H. had to be based on his needs. Transcript 552-553. The speech services described in the IEP were pull-out services, yet the testimony was that the speech/language services currently provided were push in. Transcript 554. The School District did not provide P.H. speech/language services during the 2008-2009 school year when he was out of District. Transcript 559.

Mrs. H. described P.H. as a 17 year old boy, currently attending the District’s High School. Transcript 565. He is an 11" grade student placed in Special Education for speech and language needs. Transcript 565. P.H. has been receiving special education services since he was 3 years old. Transcript 565. Mrs. H. believed that Dr. G.’s report, presented to the District in March, 2008, was a “pivotal event”. Transcript 566. Mrs. H. believes that that and all subsequent CSE meetings have been opportunities for the District to “explain away [Dr. G.’s] findings. Transcript 566. She believes that the District’s position is simply to offer PH. services but not to acknowledge his specific disability. Transcript 567.

Mrs. H. stated that Petitioners had requested a Kildonan placement on many occasions.

Transcript 568. She stated that the Parent’s rejected the District’s 2009-2010 IEP because of the District’s inability to explain how it would be implemented. Transcript 569, In support of Petitioners’ position P.H. testified that based upon Dr. G.’s examination in 2007, he understood that he had dyslexia and a speech impediment. Transcript 571. P.H.

testified that entering his 8" grade year at The Union Vale Middle School he felt like he was learning nothing because people would give him the answers. Transcript 573.

During his 9" grade year, 2008-2009, P.H. received tutorial primarily on speech, grammar, reading and math. Transcript 576. P.H. testified that he learned a lot at The Kildonan

School during the 2009-2010 school year. Transcript 577. He believed his instruction was language based. Transcript 577. He would get hands on instruction and tutorial on a daily basis.

Transcript 577-578. P.H. testified that he didn’t attend the District’s High School during the 2008-2009 school year because he was “scared what the teachers would do because I ratted on them”. Transcript 582. P.H. testified that he learned to ask teachers for help at Kildonan School.

Transcript 586. At Kildonan, P.H. took English, Math, Science, History and tutorial. Transcript

590.

The Parent produced School District Psychologist Z. pursuant to a subpoena. Transcript

617-618. Ms. Z. testified that goals on P.H.’s IEP were created in conversation with the mother, psychologist, Director of Special Education and P.H.’s Special Education Teacher. Transcript

624. She testified as to her desire to provide P.H. with counseling services. Transcript 627-628.

The School Psychologist testified that the District’s greatest concern regarding P.H. was his lack of confidence. Transcript 646-647. She speculated that the lack of confidence stemmed from lack of academic success. Transcript 647. She believed that the program planned by the District offered the academic support which would ultimately lead to increased confidence. Transcript

647. Ms. Z. testified that counseling services are delivered both as a consult and direct service, notwithstanding that the IEP designates it as in a non-integrated setting. Transcript 666, SDEX

31]. In this case, the IEP said consult which the Psychologist viewed as a meeting with the student “directly and indirectly”. Transcript 666.

When Mr. B. was recalled to testify on behalf of the Petitioners, he testified that Dr. G.’s evaluation had been thoroughly reviewed by the CSE. Transcript 685. The Director of Special Education testified that in preparation for the 2008-2009 and 2009-2010 IEPs the CSE utilized

Dr. Gs report, testing done by Ms. D., testing done by Ms. D.-L., and academic testing. Transcript 690. The School District assesses progress by reviewing Regents results, assessment data, teacher reports and report cards. Transcript 700.

The Petitioners offered the testimony of Dr. G.. Transcript 707. In 2007, Dr. G.

performed a Psycho-Educational Evaluation on P.H. Transcript 708-709. He saw P.H. again for an evaluation in October, 2011. Transcript 709. On the Wechsler Intelligence Scale for Children

— Fourth Edition, an [.Q. test, P.H. scored in the 30% percentile on the perceptual reasoning index. Transcript 716, SDEX 41. On the whole, P.H.’s perceptual abilities were okay in that P.H. is capable of grasping the whole from details. Transcript 721. Dr. G. testified that P.H. did not do well on the working memory index which measures the ability to retain something, encode it and then work with it in your mind’s eye to manipulate those facts. Transcript 721-

722. Although P.H.’s working memory scores were very low, Dr. G. thought that the scores were lower than P.H.’s true abilities. Transcript 722, SDEX 41. P.H. tested very low on his phonemic awareness skills, scoring on the 3" grade level. Transcript 727. P.H. also has a very difficult time decoding. Transcript 728. P.H. scored very low on his reading rate and fluency.

Transcript 729. However, his reading comprehension rate was at the 25% percentile. Transcript

729. Dr. G. believed that, notwithstanding P.H.’s reading struggles, he appears to get through material and understand it. Transcript 732.

Dr. G. testified that, at the time of testing, P.H. was dyspraxic. Transcript 743. Verbal dyspraxia relates to one’s ability to control and use oral motor and muscles in their mouth to pronounce words. Transcript 743. P.H. would want to say something and had difficulty with making the words come out correctly. Transcript 743. Dr. G. concluded that it was this dyspraxia which interfered with P.H.’s reading when he read out loud as his phonemic awareness was fine and he otherwise read fine. Transcript 744. Dr. G. felt that P.H.’s historical lack of success in school would affect P.H.’s high school success. Transcript 748. Dr. G. concluded that it would be difficult for P.H. to put his thoughts into words and annunciate some of his words. Dr. G. also stated that P.H. was self-conscious about speaking, had a lack of ability to read out loud and that P.H. would have difficulty putting his thoughts onto paper, i.e., writing.

Transcript 751-752. Dr. G. stated that all of these issues had taken a toll on P.H.’s academic self-esteem. Transcript 753. Dr. G. concluded that P.H. should receive an intensive remedial program and day-to-day academics, focused on language. Transcript 756-757. Dr. G. thought that P.H. would do best in a school where ali of the teaching modalities are integrated and all teachers on the same page. Transcript 758. He suggested that The Kildonan School would be in P.H.s educational best interest. Transcript 758-761. Dr. G., based on the level of skills that he observed in P.H., though P.H. was going to have difficulty with a Regents curriculum.

Transcript 762.

Dr. G. saw P.H. again in October, 2011, and felt there was progress in P.H.’s reading.

Transcript 763. Dr. G. found that P.H.’s writing has dramatically improved, but his math skills were still poor. Transcript 764-766. Dr. G. testified that P.H.’s writing issues could be addressed by using a system of teaching basic writing skills developed by a Dr. J.H.. Transcript

776. The Hochman approach is a multi-sensory approach combined with an Orton-Gillingham reading program which likewise teaches a very structured approach to writing. Transcript 795.

Dr. G. testified that P.H.’s primary need was skill remediation, particularly writing skills, reading and math skills. Transcript 781. Likewise, Dr. G. argued that the recorded full scale I.Q. does not reflect P.H.’s actual intelligence, which he believed to be at least average. Transcript 789. Dr. G. testified that P.H.’s lack of academic skills was a larger academic detriment than his specific expressive language deficits. Transcript 790. He testified that P.H.’s writing skills were so deficient, that he needed to be taught from scratch how to write. Transcript 791.

Dr. G. felt that, in order for P.H. to enter high school correctly, a child with his deficits would need intensive work on writing skills, specifically a reading and writing specialist to work with him on all writing assignments. Transcript 793. Dr. G. was hesitant about the ability of a public high school to teach such a child because of the conflict between basic skill deficits remediation and moving a child along in the curriculum. Transcript 793-794. He believed a private school could better address the academic skills deficits. Transcript 794. Dr. G. testified that one year at Kildonan would be enough to address P.H.’s basic writing deficits. Transcript

806.

Mr. B. testified that the District knew for a long period of time that P.H. had speech and language issues. Transcript 814. He likewise testified that teaching to the New York State

General Education Curriculum runs simultaneously with reinforcing skill deficit areas. Transcript 827-828. Mr. B. testified that the program for P.H. for the 2009-2010 school year was set up to aggressively address reading and writing issues. Transcript 849. J.N. was to approach decoding as well as writing deficits. Transcript 849. Resource Room was to be “amped up” compared to P.H.’s elementary and middle school experiences. Transcript 849. P.H. would have had teachers available to him in afternoon settings. Transcript 850. Teachers would be specifically chosen who were attuned to Special Education needs. Transcript 850. The consultant teacher English 9 offering was a class that followed the New York State Learning

Standards. Transcript 855. The Global Studies class followed the New York State Learning Standards and supplemented general education. Transcript 855.

Petitioners offered the testimony of Dr. L., Academic Dean of the Kildonan School.

Transcript 867. The Kildonan School is designed for students with dyslexia and language based learning disabilities. Transcript 868. Kildonan considers its program to be intensive because of the 1:1 language remediation offered its students. Transcript 868. Teachers at the Kildonan

School utilize the Orton-Gillingham approach in ali classes and tutorials. Transcript 868-869.

Kildonan considers it important to use this language based learning technique in all classes.

Transcript 869. The population of the Kildonan School is made up entirely of students with dyslexia and language based learning disabilities. Transcript 869. Classes are small, averaging approximately 8 students. Transcript 869. In a nutshell, the Kildonan program is explicitly tailored to deal with language based learning disabled students. Transcript 870. The Kildonan program utilizes a multi sensory approach to learning, and believes that each students’ self esteem is supported through the learning experiences provided at Kildonan. Transcript 871.

P.H. was at the Kildonan School during the 2009-2010 school year. Transcript 872. The school believed that P.H. had mixed expressive and receptive language difficulties. Transcript

872. Additionally, he was experiencing a writing disorder. Transcript 872. P.H. was provided a typical schedule while at the Kildonan School. Transcript 872. The Kildonan School addressed

P.H.’s phonemic awareness issues by developing a sense of sound symbol relationships and using phonics to help teach him the structure of language. Transcript 873. Kildonan School worked on P.H.’s fluency and expository writing skills. Transcript 873.

P.H. showed leadership tn group activities. Transcript 878. He seemed enthusiastic about his work at Kildonan, particularly history class. Transcript 879. The Kildonan Dean believed that P.H.’s standard test scores did not show significant growth because he was only at the Kildonan School from November 2009 to the end of the 2009-2010 school year. Transcript

887. Someone with P.H.’s difficulties would typically remain at the Kildonan School at least three years. Transcript 912. During the year P.H. was at Kildonan he was working on undoing negative compensatory skills he may have established. Transcript 913. Kildonan School does not have a speech pathologist to work with students with speech issues. Transcript 906.

Regardless, a large part of a Kildonan Teacher’s training involves work with individual letter sounds. Transcript 906. Dr. L. testified that he believed Petitioners had met their financial obligations to Kildonan School. Transcript 911, Mrs. H. testified that her primary concern with the 2009-2010 JEP was that the District did not have the speech program recommended by their independent speech therapist. Transcript

923. She felt that another year would go by where the District was still arguing regarding whether P.H. suffered from dyspraxia or apraxia of speech. Transcript 923-924. Although the District put some of the goals suggested by the mother in P.H.’s 2009-2010 IEP, she felt that the program he would receive in the public school was not sufficiently intensive to meet his language based needs. Transcript 926. Mrs. H. also believed that the District’s IEP for the 2009-2010 school year would not provide sufficient speech and integrated services to help P.H.

learn to write. Transcript 934-935.

Mrs. H. testified that during his year at Kildonan, P.H. took responsibility for doing his work, knowing that he could learn and learning that there was nothing wrong with his learning differences. Transcript 936. She believed that his writing abilities improved while he was at Kildonan. Transcript 936.

Petitioner’s elicited testimony from speech pathologist, E.D.-L.. Transcript 940-941.

Ms. D.-L. testified that childhood apraxia of speech is a pediatric speech sound disorder.

Transcript 942. It involves motor planning and sequencing difficulties. Transcript 943. Sounds become difficult to make as they become more complex. Transcript 943. Ms. D.-L. testified that dyspraxia and childhood apraxia of speech are different names for the same motor planning problem. Transcript 944, Ms. D.-L. performed a speech and language evaluation on P.H. in September 2008.

Transcript 945. Ms. D.-L. testified that P.H. needed to have continuing remediation for his weakness in phonelogical skills in order for him to become a fluent reader. Transcript 962. She thought he could be given strategies to facilitate and improve speech production. Transcript 962.

Ms. D.-L. testified that she believed it important for P.H. to participate in an educational environment that would support his ability to learn the foundational skills he missed as a result of his childhood apraxia of speech. Transcript 967-968. She testified that she thought that he would need individual speech and language therapy. Transcript 968. To address his prosody, rhythm, and assist motor planning for longer words to improve speech, she recommended therapy occur three times per week on an individual basis. Transcript 968. Ms. D.-L. testified that the type of speech language issues from which P.H. suffered should be addressed by someone trained in working with children with childhood apraxia of speech. Transcript 983.

This should happen throughout his entire curriculum. Transcript 983. She believed that it would be beneficial for a speech pathologist to provide push-in services in the classroom in conjunction with the classroom teacher. Transcript 984. She testified that she thought P.H. needed a comprehensive language setting, Transcript 985. She did not believe that Orton-Gillingham was an intervention for speech language deficits, but rather is a reading program. Transcript 986-987.

There was extensive testimony regarding services for the summer of 2009, and, in fact, a request for Due Process Hearing regarding the summer of 2009 was filed by Petitioners. Exhibit

58. However, that request was withdrawn and that issue did not become part of the current hearing. Transcript 1048, Exhibit 59.

By Subpoena, Petitioner called high school guidance counselor, Mr. P.. Transcript 1068- 1069. P.H. has been assigned to Mr. P. since the 2008-2009 school year. Transcript 1069-1070.

Mr. P. testified that P.H. remained on ihe District’s school rolls during the 2008-2009 school year, notwithstanding that he was not sent to school because he was not enrolled in another accredited institution. Transcript 1081. Even though he had not been in the District’s schools during that year, the District issued a report card at the end of the 2008-2009 school year.

Transcript 1081. Even during the 2009-2010 school year a progress report was issued during the first quarter because the District did not receive any notice that P.H. was enrolled in a new accredited school that would allow the District to remove him from its rolls. Transcript 1084- 1085. Students sent to other schools or home schooled are taken off the School District roster.

Transcript 1106.

In regards to actions taken regarding an absent student, decisions are made by the District on “a case-by-case basis...”. Transcript 1086. The District accepted P.H.’s grades from the Kildonan School and placed them in his District transcript. Transcript 1088, Exhibit GG. P.H.

passed all of his courses at Kildonan and was granted Arlington credit for those courses.

Transerrpt 1114. The Guidance Counselor testified that he chooses classes for special education students based on CSE determinations. Transcript 197-198. Apparently, during the 2008-2009 school year, because of his absence, the Department of Social Services was contacted through a Child Protective Service (“CPS”) referral. Transcript 1101.

The family did not send P.H. to the Arlington Central School District during the 2008-2009 school year because they didn’t feel that there was an appropriate program there.

Transcript 1130. The Parents believed that the Schoo! District was offering the same program for the 2009-2010 school year as had it been offered P.H. during the 2008-2009 school year.

Transcript 1138. P.H. was not sent to the Arlington District at the beginning of the 2009-2010 school year. Transcript 1138-1139. The family reapplied to Kildonan on or about October 15, 2009. Transcript 1141, Exhibit F. The decision to reapply to Kildonan was made immediately after a CSE meeting on October 14, 2009. Transcript 1143. At the CSE meeting held on October 14, 2009, the Parents did not give oral notice that P.H. would be attending the Kildonan

School. Transcript 1144. The School District began to provide bussing for P.H. to Kildonan, approximately one week after he began attendance at Kildonan. Transcript 1148.

At the Kildonan School, the students participate on 1:1 Orton-Gillingham tutorial in the belief that language-based learning disabilities are covered by that methodology and, therefore, specific speech and language services are not provided. Transcript 1183-1184. While at the Kildonan School, P.H. did not receive any speech and language services during the 2009-2010 school year. Transcript 1155.

The District put on, as a rebuttal witness, Ms. D., a District Speech Language Pathologist.

Transcript 1189. Ms. D. had worked as P.H.’s speech pathologist for three years. Transcript

119]. Ms. D. testified that she did evaluations upon receipt of Dr. G.’s evaluation in order to follow up on his diagnosis of dyspraxia, Transcript 1200. The evaluations that Ms. D.

performed were almost three years old at the time of testimony. Transcript 1202. She remembered that P.H. was having difficulty reading words at the time. Transcript 1204. She testified that P.H. had some characteristics of the diagnosis of a childhood apraxia of speech.

Transcript 1204. Ms. D. did not believe that a language based program would remediate a child with a diagnosis of childhood apraxia of speech. Transcript 1214. She did, however, believe that a language based program would address P.H.’s other weaknesses. Transcript 1215. Ms. D.

testified that direct therapy would be the approach for addressing childhood apraxia. Transcript

1226. For a child who also had working memory issues, a language based classroom would be beneficial. Transcript 1226. All in all, Ms. D. testified that it did not matter whether you called

P.H.’s condition dyspraxia or childhood apraxia of speech. Transcript 1229-1230. She testified that Arlington Central School District considered P.H. to have an expressive language disorder and working memory issues. Transcript 1230.

In a rebuttal case, the Director of Special Education testified that he was told for the first time by Mrs. H. in December 2009, that P.H. was attending the Kildonan School. Transcript

1238. He went on to testify that he had not had a prior conversation with Mrs. H. regarding transportation to Kildonan. Transcript 1239.

DISCUSSION

Under the Individuals with Disabilities Education Act (‘IDEA’), States receiving federal funds are required to provide all children with disabilities a free appropriate public education (“FAPE”). Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007). A free appropriate public education must provide “special education and related services tailored to meet the unique needs of a particular child and be ‘reasonably calculated to enable the child to receive educational benefits.’ Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 112 (2d Cir. 1998). These services are administered through a written Individualized Education Program (“JEP”), which must be updated at least annually. Walczak, 142 F.3d at 122. “In developing a particular child’s IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managment or behavioral needs.” Gaghardo, 489 F.3d at 107-08.

In determining whether a student has been provided a FAPE, examination must be made of “(1) whether the [local educational agency (‘LEA”)| complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was reasonably calculated to enable the child to receive educational benefits.” Walczak, 142 F.3d at 126 (quoting Rowley, 458 U.S.

at 206-07).

The New York State Review Officer (“SRO”) provides an overview of an Impartial Hearing Officer’s decision and standards upon which that decision must be based stating that:

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E]fi]). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walezak v. Florida Union Free Sch. Dist.,^[142] F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189).

The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, The first prong of the Burlington standard requires the District to demonstrate that it offered a FAPE to P.H. for the school year in question. Section 4404(1)(C) of the New York State Education Law states that the District has the “burden of proof, including the burden of persuasion and burden of production” in establishing that it offered a FAPE to P.H. for the 2009-2010 school year.

The most fundamental obligation of a District in order to meet its procedural requirements is the production of an IEP. Federal and State Regulations at 34 C.F.R.300.324(b)

and NYCRR 200.4(f) mandate that a district, not less than annually, develop an IEP for each student with a disability.

An IEP must be written with sufficient precision to enable P.H.’s teachers to understand the CSE’s expectations for him. See Application of a Child with a Disability, Appeal No. 02-029.

Goals must assign responsibility to a particular teacher. See id. Goals in the IEPs must be measurable so as to make it possible to properly assess whether P.H.’s progress could meet the CSE’s expectations. See id.

An TEP must have annual goals that are related to the student’s educational deficits, and are written with sufficient precision to enable the student’s teachers to understand the CSE’s expectations and for the student’s parents to assess the student’s progress. See Application of a Child with a Disability, Appeal No. 02-029. The measurable annual goals must relate to (1)

meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and (2) meeting each of the student’s other educational needs that result from the student’s disability. See 8 NYCRR §

200.4(DQ)aii)(a)(1)-2). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the CSE.

See 8 NYCRR § 200.4(d)(2)(iii)().

If the District failed to satisfy the first prong of the Burlington test, that it offered a FAPE to P.H., in order to be successful the Parent has to prove the appropriateness of the services obtained for P.H. See Burlington 471 U.S. at 359. See also New York State Education Law §

4404(1)(c).

It is a well established principal that “the test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999). See also M.S. v. Board of Ed. of City Sch. Dist. of City of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). For parents to satisfy their burden under Burlington, they have to show that their unilateral placement offered an educational program which met their child’s special educational needs. See M.S. v. Board of Ed., 231 F.3d at 102. An appropriate placement is one that is “likely to produce progress, not regression.” See M.S. v. Board of Ed., 231 F.3d at 103. It must be a program that is “reasonably calculated to provide some meaningful benefit.” See C.B. and R.B. v. New York City Dept of Ed., 2005 WL 1388964 at *17.

A court should not view the two prongs of the Burlington test in a vacuum, and a public school’s continuing failure to provide an appropriate education should be considered when determining if the parents’ placement for the child was appropriate. See Norton Sch, Comm. v. Massachusetts Dep’t of Ed., 768 F.Supp. 900, 907 (D.Mass. 1991) citing Tice v. Botetourt Co. Sch. Bd., 908 F.2d 1200, 1208 n.11 (4th Cir. 1990). “The Burlington rule is not so narrow as to permit reimbursement only when the interim placement chosen by the parent is found to be the exact proper placement required by the Act.” Alamo Heights Indep. Sch. Dist. v. State Bd. of Ed., 790 F.2d 1153, 1161 (Sth Cir. 1986). It is appropriate to order reimbursement for the parents’.placement, where, based on what appears in the record, it was an appropriate school.

See McKenzie v. Smith, 771 F.2d 1527, 1534-35 (D.C. Cir. 1985).

The final inquiry in any proceeding seeking tuition reimbursement is whether equitable considerations support the Parent’s claim. See Burlington, 471 U.S. at 374. Equitable analysis contemplate the consideration of factors that should be taken into account including the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters. See Wolfe v. Taconic-Hills Cent. Sch. Dist., 167 F.Supp.2d 530, 533-34 (N.D.N.Y. 2001).

The initial analysis herein is whether the District complied with the procedural requirements of the IDEA. Petitioner’s herein did not raise any procedural issues in their

Amended Due Process Demand. However, both IEPs developed by the District for the 2009-2010 school year contained a significant “typographical” error. That error proposes consultant teacher English 9 services to take place in a “non integrated” location. A self contained class is primary instruction taught in a self contained or “non integrated” setting. See generally

SNYCRR §200.6(h). The consultant teacher model mandates special education services to be delivered to students who attend regular or “integrated” classes. 8NYCRR §200.6(d).

Although this error did not appear to be the basis of any parental objection to the District’s proffered program, it has the potential to be problematic as a parent has every right to a full and accurate description of programming offered by a district. There was testimony that the program was fully described to the Parent at the CSE meetings. I can only assume that the description was that of a special education teacher assisting the regular education teacher in providing services to P.H. im a typical classroom and not the non-integrated setting described on the TEP. As such, this procedural error does not rise to the level of a substantive violation effecting P.H.’s rights to a Free Appropriate Public Education (““FAPE”).

In order to develop an appropriate IEP, a district must have appropriate assessments of the disabled student. In the issue at hand, the District made a point of establishing, but for a slight change in speech and language services and the addition of specific goals, the IEPs were nearly identical to those determined to be appropriate by the SRO in the prior hearing. The SRO found the District had proposed an appropriate IEP based, in large measure, upon the evaluations before it. The SRO found no infirmities with those evaluations. The District met all of its triennial evaluation obligations in this matter. There was also sufficient testimony that the District had, both prior to its creation of the 2008-2009 and the 2009-2010 IEPs at issue here, reviewed the Plaintiffs’ independent educational evaluations. The District took those evaluations into consideration. In fact, most problematic for the Parents tn this case is that there were absolutely no new evaluations that were put in front of the CSE when requesting a 2009-2010 change of placement or demanding tuition reimbursement. Since the SRO found the 2008-2009 IEP to be correct along with the fact that the District conducted additional assessments prior to its August 27, 2009 meeting, I find that the District had ample assessments upon which to develop an IEP.

Notwithstanding that the SRO found a nearly identical IEP to be appropriate based upon the same assessments, it appears that the District improved on its offerings to P.H. with the addition of a speech language therapy session and additional goals. The goals in the IEPs at issue are written with sufficient precision to enable P.H.’s teachers to understand the CSE’s expectations and for P.H.’s Parents to assess his progress.

Additionally, one of the Plaintiffs’ experts, Ms. D-L. testified at length about P.H.’s need for speech language therapy in light of his speech language based learning issues. The District offered that therapy, Kildonan did not.

As it turned out, although they had every right to contest the IEPs for the 2009-2010 school year and seek tuition reimbursement, the Petitioner’s re-litigated issues already addressed in the prior litigation. Petitioners utterly failed to present any new evaluations or assessments which could have called the District’s offerings into question. They failed to raise any salient questions about the anecdotal statements or the goals in P.H.’s IEPs. The only new information presented was that of Dr. L., but his testimony goes to the second prong of the Burlington standard and serves almost no purpose in a determination of whether the District offered P.H. a FAPE in the first instance.

While it is understandable that the Parents had significant concerns regarding the efficacy of the District’s program based on what they perceived to be P.H.s lack of academic progress while in District programming, that in and of itself does not create a denial of FAPE. Further, Petitioner’s belief that Dr. G.’s diagnosis of dyspraxia was somehow pivotal is of no moment so long as the District provided a program to address P.H.’s educational disabilities regardless of the cause of that disability or the name thereof. It is clear that P.H. suffers from speech and language based learning disabilities impairing his reading and writing. The only issue is whether the District has adequately addressed those educational issues. The District provided ample testimony that P.H. would be provided multi sensory, Orton-Gillingham based, reading and writing instruction and that teachers would provide individualized instruction to address his speech and working memory deficits. The District also proposed adequate speech and language therapy as a related service.

While it is understandable that Petitioners would distrust a School District which they believed to be responsible for filing a Child Protective Services referral against them, that incident involved a prior school year and is no way reflective of whether or not P.H. was offered FAPE during the 2009-2010 school year. The FAPE analysis, with which I am tasked, rests solely on whether P.H. was offered personalized instruction with sufficient support services to allow him to benefit educationally from that instruction and those services. Based upon the testimony of the District’s witnesses, it became clear that they recognized P.H.’s educational needs and offered him the education and related services that would adequately address his needs so that he would benefit from the education offered him by the District.

The District’s IEP included annual goals which would allow P.H. to progress not only on his basic skills deficits but also in the NYS academic curriculum allowing him to earn a recognized diploma in the least restrictive environment. It is likewise understandable that Petitioner’s would be hesitant to send P.H. to the District in light of his reports during the 2007-2008 school year that he had not fairly earned the grades reported and may suffer retaliation for “ratting out’ teachers. However, short of the Petitioners’ providing adequate new expert evaluative information that would call the District’s proffered [EPs into question, a student’s hesitancy to attend school does not equate to a district’s denial of FAPE. Once again the District herein appears to have understood P.H.’s unique needs (including an offer of counseling services declined by the family) and crafted a program to address his educational disabilities allowing him to benefit from the offered program. It is the finding herein that the IEP offered P.H. was likely to produce progress, progress greater than mere trivial advancement and, therefore, provided P.H. with the Free Appropriate Public Education to which he is entitled.

Finding that the District met its burden on the first prong on the Burlington standard, I need not address either the question of whether P.H. received an appropriate education at Kildonan nor measure the equities in this matter. Nevertheless, there was testimony that P.H. needed a speech language based program and that is the program that Kildonan considers itself to be. However, the Parents own witness, Ms. D.-L., called into question the appropriateness of Kildonan by stressing P.H.’s needs for specialized speech and language services. Further, P.H.’s tenure at Kildonan does not appear to have been extensive enough to allow him to benefit from programming provided thereat.

CONCLUSION

For all the above referenced reasons, the Petitioners Complaint is dismissed in its entirety.

It is SO ORDERED Acreel C v; Kehr Xp

Impartial Hearing cere eas

Kenneth S. Ritzenberg

APPEAL RIGHTS

Appeal to a State Review Officer of the State Education Department

A review of the decision of a hearing officer rendered in accordance with New York State Rules and Regulations may be obtained by either the parent or the Board of Education by an appeal to a State Review Office of the State Education Department. Such a review shall be initiated and conducted in accordance with the provisions of part 279 of Title 8 of The New York State Code of Rules and Regulations. The written decision of the State Review Officer, a copy of which will be mailed to the parent and the Board of Education, shall be final provided that either party may seek Judicial Review by means of a proceeding pursuant to Article 78 of the Civil Practice Law and Rules or 20 U.S.C. section 1415.

Title 8 NYCRR § 279.2 Notice of intention to seek review.

(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:

Notice:

The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the deicison of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.

(b) 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.

(c) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer’s decision. A copy of the board’s notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer’s decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the _ 35-day period. The Decision herein is based on the 1,255 page transcript and the following Exhibits which were admitted into evidence: School District’s

Exhibits

SDEX 1 Decision of SRO dated January 20, 2010 - 25 pages

SDEX 2 June 20, 2011 letter of C.B. to M/M H. — I page

SDEX 3 June 20, 2011 letter of C.B. to M/M H. -- 1 page

SDEX 4 June 6, 2011 letter of C.B. to M/M H. — I page

SDEX 6 May 27, 2011 letter of C.B. to M/M H. — 1 page

SDEX 13 April 5, 2011 letter of C.B. to M/M H. — I page

SDEX 14 April 4, 2011 letter of K.L. to K.S.R. —2 pages

SDEX 16 March 1, 2011 letter of B.J.D. to Mrs. H. — 1 page

SDEX 17 January 28, 2011 letter of Mrs. H. to C.B. — 6 pages

SDEX 18 CSE Chronological Contact Form — 20 pages

SDEX 19 November 6, 2009 Committee Recommendation for Continuation of Services to M/M H. — 1 page

SDEX 20 IEP 2009-2010 dated October 14, 2009 — 18 pages

SDEX 21 October 14, 2009 Progress Report — 1 page

SDEX 22 October 25, 2009 Notice of Subcommittee on Special Education Meeting

~ | page

SDEX 23 September 23, 2009 Letter of C.B. to M/M H. — 1 page

SDEX 24 September 17, 2009 Letter of Mrs. H. to C.B. — 1 page

SDEX 25 P.H. Fall Semester (2009-2010) Schedule — 1 page

SDEX 26 TEP 2009-2010 dated August 27, 2009 — 16 pages

SDEX 27 August 27, 2009 Social/Health Information — 3 pages

SDEX 28 Wechsler Individual Achievement Test, Second Edition, Grade 9 — 5

SDEX 29 July 2, 2009 letter of C.B. to Mrs. H. — 2 pages

SDEX 30 2009-2010 IEP dated June 22, 2009 — 12 pages

SDEX 31 2008 — 2009 IEP dated October 8, 2008 — 16 pages

SDEX 32 September 2, 2008 Speech and Language Evaluation — 12 pages

SDEX 33 2008-2009 TEP dated August 22, 2008 — 12 pages

SDEX 34 Grade 8 Student Report

— 1 page

SDEX 35 June 25, 2008 Speech/Language Evaluation Report - 4 pages

SDEX 36 2008-2009 IEP dated June 18, 2008 — 11 pages

SDEX 37 May 15, 2008 Speech/Language Evaluation Report — 19 pages

SDEX 38 2007-2008 IEP dated March 27, 2008 — 10 pages

SDEX 39 February 20, 2008 Individual Performance Summary Report — 1 page

SDEX40 January 23, 2008 Letter of Mrs. H authorizing removal of P.H. from

Reading — 1 page

SDEX41 January 3, 2008 Report of D.G. - 17 pages

SDEX42 June 20, 2007 Student Report — 1 page

SDEX45 June 23, 2006 Student Report — 1 page

SDEX49 June 24, 2011 Student Report Card — 2 pages

SDEXS0 2009-2010 Kildonan Student Profile — 5 pages

SDEXS2 August 20, 2008 Letter of Mrs. H. to E.F. — 4 pages

SDEXS4 September 12, 2008 Letter of M/M H. to C.B.—1 page

SDEX55 September 15, 2008 Due Process Complaint Notice — 10 pages

SDEXS6 Hearing Officer B.’s Pendency Decision & Order dated December 29, 2008 — 11 pages

IT

SDEX57 Student Exiting School Form — 1 page

SDEX58 July 10, 2009 Due Process Complaint Notice — 11 pages

SDEX59 September 2, 2009 letter of J.F.P to Arlington CSD — 2 pages

Parents’

Exhibits

P.EX F The Kildonan School Application dated October 15, 2009 — 9 pages

P.EXG 2009-2010 Contract for Admission (Kildonan) dated October 21, 2009 — 1 page

P.EXH Kildonan Grade 9 credits — 1 page

P.EX I Kildonan Student Life Report dated November 23, 2009 — 6 pages

P.EX J Kildonan Report on Ceramics class dated December 21, 2009 — 1 page

PEXK Kildonan Interim Report (Grade 09) dated January 18, 2010 — 1 page

P.EXL Kildonan Student Life Report dated February 22, 2010-7 pages

P.EX M Kildonan Interim Report (Grade 09) dated April 19, 2010 ~ 1 page

PLEX N Kildonan Student Life Report dated June 1, 2010 — 7 pages

P.EX AA Current Route Detail revised October 14, 2009 — 1 page

P.EX FF Arlington Student Report Card June 26, 2009 — 1 page

P_EX GG 2009-2010 Course Schedule — 1 page

THO’s

Exhibits

THOEX 1 March 28, 2011 Letter from Mrs. H. to B.D. — 1 page

THOEX 2 April 7, 2011 Letter from Attorney V.G. to IHO R. — 7 pages

THOEX3 April 14, 2011 Letter Decision from IHO R. to Mrs. H. and V.G. — 2 pages

THOEX4 May 17, 2011 Letter to IHO R. from Mrs. H. — 5 pages

IHOEXS5 May 20, 2011 Letter from V.G. to THO R. —2 pages

THOEX6 May 24, 2011 Letter Decision from IHO R. to Mrs. H. and V.G. — 2 pages

Footnotes

[2] Consultant Teacher, by definition, is an integrated class.

[142] F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walezak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and. . . affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra, 427 F.3d at 195, quoting Walezak, 142 F.3d at 130; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir 2008]; Perricelli, 2007 WL 465211, at 15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.1997]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[al][5][A]; 34 CFR. §§ 300.114[a][2]fi], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6fa]f1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walezak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d, 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d, 422, 428 [W.D.N.Y. 2008]). Quoting State Review Officer Decision No. 09-138. The Supreme Court has developed the reimbursement standard in School Comm. of Tn. of Burlington v. Department of Educ., 471 U.S. 359, 369-371 (1985) and addressed the appropriateness of a private placement in Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 14 (1993). The Burlington standard, which was subsequently codified at 34 C.F.R. § 300.148, states that a board of education will be required to pay for educational services obtained for a child by the child’s parents, if the services offered by that board of education were inadequate or inappropriate and the services obtained by the parents were appropriate. See Burlington, 471 USS. at 369-370, 374.