New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 13, 2012

March 23, 2012

April 26, 2012

April 27, 2012

Actual Record Closed Date: June 11, 2012

Hearing Officer: Elise B. Kestenbaum, Esq.

Corrected

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 13, 2012

Esq. Attorney for the — Parents

Esq. Attorney for the — District

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 23, 2012

Esq. Attorney for the — Parents

Father — Student

Esq. Attorney for the — District

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 26, 2012

Esq. Attorney for the — Parents

Father — Student

Assistant Head of — Student

Esq. Attorney for District — DOE

Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 27, 2012

Esq. Attorney for the — Parents

Father — Student

Teacher (via telephone) — Student

Speech Pathologist (via telephone) — Student

Esq. Attorney for District — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by . and , the Parents (“Parents”), on behalf of , the student (“Student”), by filing a Due Process Complaint dated January 23, 2012 with the District.

The Parents are alleging that their son, N.F. was denied a free and appropriate public education (“FAPE”) for the 2011-12 school year and is seeking tuition for her unilateral placement of . at for said year.

The hearings were held on March13, March 23, April 26, April 27, 2012. Extensions were granted in this case making the final compliance dated June 20, 2012. A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer submitted exhibits.

BACKGROUND

This case involved a . During the 2011-12 school year attended the Gillen School where the Student was unilaterally placed by his Parents.

With respect to the 2011-12 school year, an Individualized Education Program (“IEP”) was developed on May 3, 2012 by the District. P-B. Pursuant to the May 3rd IEP, the following recommendations were made: Special Class in a Community School, , one time per week,^[30] minutes, ; one time per week, 30 minutes, . one time per week,

POSITION OF THE PARTIES

District’s Case

The District called three witnesses, and placed twelve (12) documents in evidence.

The first witness for the District was . He is employed by the Committee on Special Education for the District. Tr. 32. He testified that he is presently a school psychologist for the District and has been for twenty-four of the twenty-nine years he has been employed by the District. Tr. 33. He stated that he has a Bachelor’s Degree in , a Master’s degree in social psychology and a Master’s degree in school administration.

He testified that he is familiar with the June 1st IEP (D-4) and it is the IEP that makes ’s program recommendation for Tr. 35. The parties that participated in the CSE meeting were the Parents, the parent member, the special education teacher at CSE 1 and ’s special education teacher from AHRC. Tr. 16. Mr. testified that the CSE considered the testing that the District had done, the progress reports from the school, and a private evaluation from the Parent. Tr. 36. He stated that they specifically reviewed the social history update (D-6), the evaluation (D-7), the Evaluation (D-8), the CSE Educational Progress Reports from AHRC (D-9), the Progress Report (D-10), and the Confidential Report of , PhD (D-11).Tr. 36-38

Mr. testified that the student’s classification is and it was recommended at the first CSE review meeting which was held on May 3, 2011, and it was also reported on his June 1st IEP. Tr. 39, D-4, P-B. He stated that the program that was recommended on his June 1st IEP for the 2011-12 school year was a special class in a community school. Tr.

40. This would mean that he would be in a program for the whole day except for nonacademic subjects which would include gym and lunch. Tr. 41.

Mr. testified that prior to the June 1, 2011 CSE meeting, a CSE meeting took place in May where the child was placed in a class. Mr. testified that due to the father’s disagreement, another meeting was held in June and the 12:1 program was rejected. Tr.

42. He stated that “we changed it from 12 to 1 to 12 to 1 to 1 so basically we put him in a class with an extra para … as opposed to just one teacher, no para.” Tr. 42. Mr. testified that they believed that this was appropriate because he had a lot of strengths in his academics and was starting to interact more in class with other children. Tr. 42-43. Mr. stated that “We just felt that being in a school with general education students would be beneficial to him.” Tr. 43. He testified that they also recommended therapy, once a week individually and once a week in a group of three and occupational therapy, once a week individually and once in a group. Tr. 43.

Mr. testified the student’s academic levels were in the average range based on the and he is functioning where he should be. Tr. 43-44. He stated that s main deficit was . Tr. 44. With respect to his social development, Mr. testified that ’s expressive impairs his . Tr. 44. Mr. stated that this was the father’s main concern for his son. Tr.

44. In terms of ’s physical development, F is in good physical health but requires . Tr. 45.

Mr. testified that the goals were prepared at the May 3rd meeting and were basic reading and math goals, and therapy goals. Tr. 45. Mr. stated that the reason the goals weren’t changed from the May to the June meeting was because all they were doing was changing his class to add a para. Tr. 46. Mr. testified that no new evaluations were presented between the May and June CSE meetings except a letter from Dr. from dated May 31, 2011 which was considered at the meeting. D-S.

Mr. testified that the Parent participated at the June 1, 2011 meeting. He stated that “the father came in and requested more services and we accommodated him.” Tr.

47. Mr. testified that subsequent to the June 1st CSE meeting another meeting was scheduled. Tr. 47. He stated that he wasn’t sure why they were holding another meeting since a resolution session had already taken place. Therefore, Mr. stated that they didn’t go forward with the meeting. Tr. 48. He believed the meeting was scheduled in error.

Mr. testified that the evaluation dated June 21, 2011 (D-12) was not available at the time of the June 1st CSE meeting. Tr. 49. He testified that it would be simple to add Physical Therapy to the IEP, all that would be needed was a request and a doctor’s prescription. Tr. 49.

On cross examination, Mr. testified that he did not sit on the May 3, 2011 CSE meeting, but was the for that meeting. Tr. 50. He stated that they did not communicate prior to the June IEP meeting. Tr. 50. He also testified that in drafting the June IEP they referred to the May IEP. Tr. 51. He stated that in June of 2011, he probably sat on three CSE meetings per day. Tr. 51. He testified that he has never personally evaluated or tested NF. Tr. 54.

At the meeting Mr. stated that “we listened to what the father said, we heard what Ms. said, and we tried to accommodate the father and provide more support in the classroom. Tr. 55. He testified on cross that he was a teacher in a class and has not been in a school teaching setting since 2005. Tr. 56. He testified that the special education teacher that attended the meeting was from , and there was no District special education teacher. Tr. 60-61.

Mr. testified that he is not disputing what the reports that were reviewed at the meetings say. Tr. 63-65. With respect to the CSE Education Progress Report from (D9), Mr. testified that although the report discussed a twelve month program, the CSE felt that ten months was more appropriate due to the KCO scores, the fact that he was making progress and the fact that it was important for him to interact with general education students in the least restrictive environment. Tr. 65-66.

On cross examination, Mr. testified that he knows that the CELF test is a test used by a but he has never administered it and would not be able to interpret the scores except in a general way. Tr. 68-69. Mr. testified that if on the Wexler Preschool test (WPPSI), received a on the vocabulary test, this would be considered Tr. 69. He stated that the information would be used in making a recommendation and the information is telling us that his vocabulary is weak in that area. Tr. 70, D-11. On the word reasoning subtest, Mr. stated that the fact that he couldn’t do that test is difficult to understand since the similarities on another test were average and general information was average. Tr. 71. In addition, Mr. testified that he didn’t know why could not complete the symbol search since he did below average in decoding and they are both in the same category. Tr. 73.

Mr. stated that he understood that Dr. (D-11), based on her testing, recommended that attend a small school for children with learning and language disabilities in a small class, however, Mr. stated that “we looked at everything and we felt that the least restrictive environment would place [ ] with general education kids, and we thought that was very important, and that’s what we went with.” Tr. 75. On cross examination, Mr. testified that he knew that in preschool was in a special education program with twelve students, one teacher and either one or two paras. Tr. 76.

Mr. testified that there was probably only one copy of the reports at the meeting and the team met briefly to review them prior to the CSE meeting. Tr. 77. Mr. testified that the portion of the June 1st IEP regarding Academic Achievement, Functional Performance and Learning Characteristics, Social Development and Physical Development was drafted at the May IEP meeting as well as the goals. Tr. 78-79. Mr. testified that although the goals were drafted for a setting, they would be appropriate for a setting because he is going to and the curriculum is the same whether it’s or . Tr. 79-80.

Mr. testified that ’s reading levels and math levels were in the average range. Tr. 80-81. He testified that he thought had made progress since the February evaluation since the teacher had indicated that he had. Tr. 81.

Mr. testified that in terms of the recommendation of a class, the team changed the placement because “the father said that he didn’t feel was appropriate and did not offer enough services. We spoke to the teacher, we had new information based on that. We felt that we could provide an extra – more support in a community school setting.” Tr. 82. Mr. thought the Parent was in agreement with this. He stated on cross that was done for academics and the other subjects (i.e. lunch, gym, art and music) would be done with the general population. Tr. 83. On cross, Mr. testified that s impacted his because of but that this was improving in the . Tr. 87.

Following the June meeting, Mr. testified that a meeting notice went out (Tr. 88) and that he met with the Parent “at least once, maybe even twice.” Tr. 89. At the July meeting, it was determined that a resolution meeting had taken place so Mr. testified that there was no point in having another review meeting so everyone left. Tr. 89.

On redirect, Mr. testified that the objective of the District is to place a child in the least restrictive environment meaning an environment as close to general education as possible. Tr. 93. He stated that the importance of placing students in the least restrictive environment is so that students can interact with typically functioning students that have no special education needs so that they are part of the mainstream. Tr. 93. Specifically, with respect , Mr. testified that the team wanted to be able to interact with general education students because “interacting with others was an area of difficulty with him, and he was starting to progress doing that. And with general education students, he’s interacting with more typical kids, and he can model from them and learn from them and interact with them.” Tr. 94.

Mr. further testified that a class in a community school is different than a in a District school because a District school is a full time special education school with no general education students. Tr. 94. Mr. testified that a twelve month program would not be helpful to him since there would be no general education students and that is more important than a twelve month program. Tr. 94.

The next witness was . She is employed by the District at and is in her year. Tr. 105-106. She is presently a teacher in a self contained classroom. Tr. 106. She has a Bachelor’s in science and a Master’s in special education. Tr. 107. She has an early childhood education license and a special education license. Tr. 107. She testified that her duties and responsibilities include preparing lessons, making sure the children are safe and supervised throughout the day, and that the lessons cater to standards of the curriculum throughout the school and that they are differentiated for each child. Tr. 107.

In terms of professional development, Ms. testified that the school has faculty conferences once a month and there also is a once a month training with the . Tr. 108.

In Ms. s self contained classroom as of September, on the first day of school, she testified that there were three students and by the end of the month it went up to four or five. Tr. 109. The name of the paraprofessional is , and she has been working for the District for seventeen years and has forty-five credits completed. Tr. 109. Ms. testified that the para is there to reinforce the lessons and activities that she provides in the classroom, and is also there to supervise and keep the students safe when they are transitioning, outside classroom or in preps. Tr. 110. The age range of the students is 4-5 years of age. Tr. 110.

Ms. was notified that she would be teaching a classroom in August 2011. Prior to the 2011-12 school year, there was no class for kindergarten in the school. Tr.

111. Two of students had a and one held a level A reading level using Fountas & Pinnell. Tr. 111. This information was obtained by doing a reading test from Fountas & Pinnell and reviewing material to get a baseline for reading, writing and math. Tr. 112. With respect to what pre-emergent means, Ms. testified that they had word knowledge but their reading comprehension was un-testable. Tr. 112. The student with a was able to have accuracy with words on a book and could answer comprehension questions. Tr.

113. With respect to math levels, Ms. testified the students were put at a prekindergarten level. Tr. 113. The performance of the students in September of 2011 was varied. Tr. 114. Ms. testified that one student was below average with performance and another student who was was below as far as speaking. Tr. 114. She testified that she addresses the different levels of the students through differentiation. Tr.

114. Ms. testified that the principal sets the curriculum for the classes and there are eight kindergarten classes. Tr. 115. She testified that they use the Teachers College Reading and Writing and she supplements it with her own materials “to cater to the students’ needs.” Tr. 115. She testified that in terms of special education kindergarten classes, there was her self contained class and a CTT class. Tr. 115.

Ms. testified that is physically located in , in a quiet neighborhood with two playgrounds, one for the younger children and one for the older children. Tr. 116. The school is on three levels with a gymnasium, auditorium and lunchroom on the lower level. Tr. 116-117. The class is located on the second floor and the physical layout of the classroom includes four tables, a rug where the meeting area is located and the library, and in the back there is shelving for the teacher’s materials. Tr. 118.

Ms. testified that she picks up her students in the morning from the cafeteria where they each get a free breakfast. When they enter independent work is waiting for them.

After they settle down, she goes over the worksheets and then they come together as a group for community building. Then they have reading and writing workshops and then lunch. After lunch, they have playground, then preps, then snack. Tr. 118-120. The prep could be art, gym, music, science, computer lab or library. Tr. 120. The para goes with the students during preps. Tr. 121.

Ms. testified that according to ’s June IEP (D-4), his are Tr. 122. She testified that based on her professional opinion his areas of deficit could be addressed in her classroom. Tr. 122. She stated that “we provide a safe environment for with community building activities within a smaller setting. We also do repetition within our lessons. We do a variety of … balanced literacy as far as their reading, where everyone is speaking and using expressive language and also we have … a teacher come in to help with speech. She is a , and if the student requires outside services, she helps plan with me, and she also may pull kids out depending on their service.” Tr. 123.

She testified that there are two speech pathologists, Ms. and Ms. , and both have students from her classroom and she works with them to implement strategies to help them with their language. Tr. 123.

Ms. testified that she would be able to implement the first goal on page four of the student’s IEP. D-4. She stated that they have hands on work they do all upper and lower case letter titles. They use a program which is . First they make the letters, then move into consonant sounds and then words. Tr. 126. The second goal on page four deals with retelling stories and comprehension. Tr. 126. Ms. testified that through shared reading and read alouds she is able to carry out this goal. Tr. 126. The first goal on page five deals with demonstrating the ability to use pictures and words to make predictions about stories. D-4. The teacher stated that she is able to accomplish this goal through read alouds, shared reading and guided reading groups. With respect to the writing goal, Ms stated that they have writing daily, they work on handwriting. They also have a handwriting center and for dictated words, they use a white board to practice. Tr. 128.

With respect to the goal addressing the development of math reading skills, this goal is accomplished through different activities and math lessons throughout the day. Tr. 129. With respect to the goals involving receptive language skills, this goal is addressed through the and through the word study workbook called . Tr. 130-131.

Ms. stated that the goals in NF’s IEP were similar to the goals of the other students in her classroom in September of 2011. Tr. 131. She specifically stated that one of the students also has deficits in the phonics area as well as the mathematics area. Tr. 131.

Ms. testified that in her kindergarten class they break into groups during guided reading when she provides books to the students based on their reading levels. Tr. 133. Otherwise, she indicated that most of her lessons are whole group, then she breaks into groups and she also does individualized instruction. Tr. 133.

In gym she indicated that it was just her class but that there are scenarios where two classes are together. Tr. 134. The other class has twenty-three students and there are two other gym teachers during that time. Tr. 149. For lunch, Ms. stated that they have lunch in the cafeteria with all the other kindergarten classes. Tr. 134. She testified that they all sit together with their class at a table and their para. Tr. 134. There are approximately 150 kindergarteners. Tr. 150.

On cross examination, Ms. testified that she has never met NF. Tr. 136. In judging the appropriateness of s program, she stated that she did not review any documents other than the IEP. Tr. 136. She testified that ’s placement was determined by a placement officer and that is the only self contained class at . Tr. 137.

Ms. testified that there are approximately 800 students at and they are in grades K through five. Tr. 138. In her self contained classroom, there were three students on the first day of class, four towards the end of September and as of her testimony in April, there were eleven. Tr. 139. In September there was one non-verbal student in her class. Tr. 141. That student has a classification of , he has , . Tr. 141. There are two students in her class with behavioral issues that are being evaluated for ED and they are developing strategies to help them. Tr. 141. Both students have individual paras. Tr. 143.

For guided reading, there are two groups. Tr. 143. Ms. works with one group, the para another, and they flip flop. Tr. 143. For math, she does whole group instruction and then they would work independently on differentiated worksheets or activities. Tr.

145. For writing, Ms. testified that she has them each work at their own pace. She stated “I have the teaching points and we do modeled writing pieces together, but whatever point they’re in at the writing process, we have them work independently, and we walk around and confer and I confer by pulling students to me, and working with them. Tr. 145.

Mr. stated that for related services, most are push out. Tr. 155. If went to , he could be pulled from academic subjects. Tr. 155.

The next witness was . He is employed by as an assistant principal and has been with the District for twenty-four years. Tr. 162. He has served in this capacity since August 2011. Tr. 162. Prior to that time, he was a guidance counselor. Tr. 164. Mr. testified that at he deals primarily with special education, takes care of discipline issues, attendance, scheduling, budget, etc. Tr. 163. He has a Master’s degree in guidance counseling and school administration and is certified as a guidance counselor and a school building administrator. Tr. 163. He stated that as of September 2011 there were approximately 900 students at , 15% or approximately 120 students were special education students. Tr. 165. The students in the special education population include 50% students who require , SETTS, self contained classes, and ICT classes. Tr. 165. There were three self contained classrooms, a kindergarten class, a fourth grade class and a fifth grade class. Tr. 166.

Mr. testified that it became official that they were opening up a kindergarten class in July. Tr. 167. He stated that they were not sure if it was going to open because there weren’t enough children, however it was confirmed at the beginning of August. Tr. 167.

Mr. testified that the Parent came to observe the class in September. Tr. 168. Prior to the start of school, Mr. testified that the Parent had been in touch with a secretary from the school who is now deceased. Mr. stated that he was contacted by several parents asking about the class and they were told that they needed a placement letter and that he wasn’t 100% sure that the class would “carry” in the school. Tr. 168. There were related service providers in the school including three SETTS providers, two Speech pathologists, two Occupational therapists and a Physical therapist. Tr. 170. Based upon Mr. s review of ’s June 1st IEP (D-4), he testified that the District could provide the related services mandates to the student. Tr. 171. He testified if they didn’t have the service they would bring someone in. Tr. 171. There is a room with equipment that is for the Physical and Occupational therapists. Tr. 172.

On cross examination, Mr. testified that at the start of the 2011-12 school year, was on the roster for the kindergarten class. Tr. 175. The teacher that was hired for the class was already a teacher at . Tr. 176. They told the teacher she would be taking over a class at the beginning of August. Tr. 177. Parents Case The Parents called four (4) witnesses, and and placed twenty-eight (28) documents in evidence.

The Parents first witness was . He has a Master’s degree in special education from Hunter and is certified in music, general education and special education nursery through eighth grade. Tr. 183. He is assistant head of the and has been for nine years. Tr. 185. His responsibilities include supervising admissions department and teachers, developing curriculum, etc. Tr. 186. When he first came to he was the first grade teacher and before that he was head teacher for first grade for six years and assistant head for two years. Tr. 186.

Mr. testified that “ is a school for children with special needs … we take a variety of disabilities so we are approved by the State to take children with the classification of speech impaired, other health impaired, learning disabled and emotionally disabled … we want to be able to have a good cohesive working group … we have kids who have significant issues and as a result we only take ten children in a class with one head teacher and two assistant teachers.” Tr. 187.

Mr. testified that and there are eighty-six children in the school, sixteen in preschool. Tr. 187. It is a non-public state approved school. Tr. 194. They are an ungraded school and have different ages in the same class. Tr. 187. The philosophy at the school is that with a nurturing environment and excellent staff every child can reach his/her potential. Tr. 188. Parents are an integral part of a child’s education so they work closely with the family. Tr. 188. Mr. stated that wants to make a difference one student and one family at a time. Tr. 188. Mr. testified that they have a language based curriculum that follows the state standards. Tr. 188. They utilize PAF which is Preventing Academic Failure, which is a language arts program utilizing OrtonGillingham. Tr. 188. In order to learn sounds and phonemic awareness and phonetic syllabification, they use Sounds in Motion, which is a kinesthetic and speech based program. Tr. 188. They also have Letter People in kindergarten which helps reinforce the alphabet and sound syllable correspondence using puppets. Tr. 189. In math they use the Saxon Math Program, which is a hands on program so that children can experience math orally and three dimensionally. Tr. 189. In social studies, they incorporate trips and hands-on activities and in science, they work with a consultant and have a neighborhood animal farm next to the school. Tr. 189. For art they work with the art museums and they have a sports program with Asphalt Green with a full size gym and swimming pool. Tr. 189-190. They also have a full range of therapies including counseling, . Tr. 190. In addition to the individual student’s mandate, the therapists often push-in to the classroom. Tr. 190.

Mr. testified that although students are allowed one-to-one support, their goal is to have them work in small group settings. Tr. 191. is a twelve month program. Tr.

191. A typical class is . Although their State approval is , they added on a second assistant teacher to make sure students get even more support than required. Tr. 191. The students are grouped developmentally by their birthdays. Tr. 191. with ten 2006 age children, all with except one who , and they were all not ready for direct instruction in reading in September 2011. Tr. 191.

Mr. testified that all students at have an IEP. Tr. 192. They have therapists, , and four PhD psychologists on staff and they all have appropriate classifications and licenses. Tr. 193. also has professional development and brings people into the school to speak and give workshops. Tr. 193.

As a state approved school, Mr. testified that they take students with IEP’s if they can meet the student’s needs and the Parents get an education paid by New York State. Tr. 194. They have to adhere to certain regulations regarding length of school days, certification of teachers and therapists, etc. Tr. 194. Mr. stated that eighty-three of the eighty-six students in the school are funded by the state. Tr. 195.

In order to be admitted to school, Mr. testified that the student must be verbal, able to speak in sentences. Tr. 195. They have to be able to work in a group and they need to have interests in other children. Tr. 196.

Mr. testified that in putting together a class, they look at the make-up of the class to make sure it is developmentally appropriate. Tr. 196. Mr. testified on cross examination that he is involved in the admissions process and interviewed NF. Tr. 197. NF met with Mr. , the heads of to see where he was and whether he would be appropriate for for the 2011-12 school year. Tr. 198.

Mr. stated “he was open to redirection, was open to help, was able to follow simple directions and so that in my opinion, he was someone that we could consider putting on our list when it came to the end of the admission process.” Tr. 199. As a result of that interview and further assessments Mr. felt that would be developmentally appropriate for that class. Tr. 200.

Mr. testified that he was at the IEP meeting for the 2012-13 school year. He stated that they recommended a deferral to CBST and gave him a classification of speech and language impairment and asked that submit an acceptance letter to go with the packet to . Tr. 202.

On cross examination Mr. testified that he never taught in a NY City public school. Tr. 205. Mr. testified that has an eclectic group of students in terms of grouping. He stated that “We only have kids with special needs but if we put kids with limited language all together, they wouldn’t be able to learn from the [other] kids.”Tr.

207. When asked about least restrictive environment, Mr. said that their school setting is “quite restrictive” since there are only special needs kids but the students in the school would not be able to function in a class in a public school or an ICT class, etc. Tr. 207.

With respect support Mr. stated that “we are a school not a therapy group … so that part of the importance of school is working in a group, and working with others, and taking turns, and so forth, so if a kid is having trouble learning how to write a letter or to learn a concept, obviously, we break into smaller groups, and/or we give one-to-one support at that time, but if a child needs support the whole day, then this would not be an appropriate setting for him or her.” Tr. 208.

Mr. testified on cross that all of the children in ’s kindergarten class have 2006 birthdays. Tr. 212. Approximately fifty applications were submitted for kindergarten and approximately thirty-five were rejected. Tr. 212. Mr. Sleeter testified that the Parent has been paying for privately during the 2011-12 school year. Tr. 214.

On cross, Mr. testified that in the admissions process they review the neurological or psychological reports, the school reports and any outside therapy reports or assessments before bringing the child in for a “play date interview”. Thus they really do not do any new testing. Tr. 214. Mr. also testified that he was not aware of the credentials of the science and art teachers, and that the music teacher has over twenty years experience in teaching special and music but he is not sure if the teacher is NYS certified. Tr. 219.

The next witness was . She is s teacher at , the head teacher in the five and six year old classroom. Tr. 228. She has been at for six years. Tr. 228. She has a Bachelor’s degree in elementary education from Muhlenberg College, a Master’s degree in early education special education from Bank Street. She is certified in early childhood education, childhood education and early childhood special education. Tr. 228.

Ms. testified that there are ten students in her class and three adults. Tr. 229. The adults include herself and two other assistant teachers, . Ms. is in a Master’s program for early childhood special education and Ms. is currently getting her certification in early childhood education. Tr. 230. All of the students in her class have IEP’s through the District. Tr. 231. Ms. testified that nine of the ten students are classified with a and one child is classified as . Tr. 231. During academic periods like reading and math, the students break into smaller groups. Tr. 232. In math, is in a group of five and in reading a group of four. He was placed in these groups through assessments done in September 2011 and by evaluating where he was at developmentally and how he learns. Tr. 232

There is extensive professional development including workshops outside the school and mandatory in-service training. Tr. 233. Ms. testified that she develops the curriculum for her class with her supervisor and it’s a compilation of various phonological awareness programs to help the children develop their early literacy skills and prepare them for the formal reading program. Tr. 234. She has meetings with her supervisor weekly to discuss curriculum needs and the needs of her students and she has team meetings every other week to discuss the student’s needs and curriculum content. Tr. 234-235.

In order to assess ’s special education needs at the beginning of the year, the school did informal and formal assessments. Tr. 235. Ms. testified that she helped create the students’ program for the 2011-12 school year. Ms. testified that has difficulty with so if the room is or if there is and . Tr. 236. She also stated that he “has a very where he can perceive solutions in a way that seem[s] to be a … he .” Therefore she indicated that he requires a lot of visuals to help him understand content because of his processing issues. He also needs a lot of repetition to learn academic concepts. Tr. 236.

Ms. testified that was at a preschool level for reading when he first came to and is now at a beginning kindergarten level. Tr. 238. Ms. testified that is now able to identify all letters and sounds and he is now sounding out the short “a” sound. Tr. 241. His reading level was assessed formally and informally and they did a phonological awareness test with the . Tr. 237. Ms. testified that he is challenged with respect to his memory and being able to retrieve the information. Tr. 237. He makes some phonological errors and it’s hard to hear certain sounds. Tr. 237. Ms. stated that “Reading is an hour period [and] it’s broken down into fifteen minute groups [and] he rotates between different teachers.” Tr. 238. Ms. testified that the reading program is multisensory and uses sounds and motion. Tr. 240. It’s a movement based program so kids are constantly moving, they use a lot of songs, Play Doh and magnetic letters, they play games with their bodies to the sounds they hear, etc. By sounding out words with motion, it helps create a connection for and helps him remember the sound of each letter. They also use letter puppets to help remember sounds. Tr. 239.

Ms. testified that the curriculum helps because he has difficulty attending for long periods at a time so the fact that they are able to keep moving helps him remain engaged and sound and motion has been helpful for him to learn the sounds and letters. Tr. 240. Also the repetition helps him retrieve the information more easily. Tr. 241. Ms. testified that ’s his reading in that it impacts his ability to understand certain concepts and retrieve certain information. She stated that “… during read alouds he’s able to answer simple questions when there’s a visual, but when questions become lengthy or the text becomes more lengthy, it’s more difficult for him to understand and answer a question … [also] when he’s practicing words, he doesn’t always know that he can’t always retrieve the picture that’s being shown so it’s hard for him to sound out words … Then, also he makes phonological errors when he reads.” Tr. 242. Ms. said this is being addressed using the sounds and motion program and he is making progress. Tr. 243.

In math, was at a preschool level at the start of the 2011-12 school year. Tr. 243. This was determined through an informal assessment. Tr. 243. Ms. testified that has difficulty with the language component of math. Tr. 243. He is grouped with five students and they are all on the same level. Tr. 244. They follow an early math curriculum, Saxon Math. Tr. 244-245. The Saxon Math program addresses ’s needs because it provides a lot of repetition. Tr. 245. Ms. testified that has made progress. She stated that “he is able to count to 100. He is able to solve simple addition problems when the materials are on the table and there is less language. He’s [also] able to identify patterns and he’s developed a lot of age appropriate skills …” Tr. 245-246. At this point Ms. stated that he is at a mid-kindergarten level in math. Tr. 246. ’s impact his and explain how he and addressed by . Tr. 246.

Ms. testified that her class receives writing instruction by doing oral narratives to develop writing. Tr. 247. They also do handwriting activities throughout the day and the works with them. ’s . Tr. 248. Ms. testified that they do a lot of practice with pencil work and using a grip. Tr. 148. Ms. s testified that has made progress in writing in that his drawings are more detailed. Both the and Ms. assess him and have a portfolio to show the progress. Tr. 248.

Ms. testified that receives therapy three times a week. Tr. 249. ’s impact him in the classroom. Tr. 249. Ms. stated “He has difficulty understanding directions. He has and what his classmates are talking about. And when language gets too advanced or there’s too much all at once, he and it’s really difficult for him to organize and understand what’s going on.” Tr. 249. Ms. speaks with the and Language provider daily and she’s also in the classroom often throughout the day. Tr.

249. Ms. testified that she uses strategies in her classroom that are recommended by the provider such as using visuals with the “WH” questions. These are also on the provider’s office so it provides consistency. Tr. 250. Ms. testified that she has seen progress with in the classroom. Tr. 251. He went from being reluctant to speak up in the classroom unless there was a problem, to raising his hand to answer questions and make comments. Tr. 251.

In terms of , receives it two times a week, in addition to the time the spends with the class for reading. Tr. 252. They are pull-out sessions but sometimes she pushes in to work on a goal. Tr. 253. His needs include a . He also has and is sensitive to and he often Tr. 253. Ms. stated that these needs are addressed through in that the takes him to the and also to the smaller room for fine motor activities. Tr. 253. Ms. Marks testified that she collaborates with the so that whatever he is working on with OT, he can also work on in classroom. Tr. 254. Ms. testified that he is making progress in that he is now more coordinated and able to move throughout the classroom and not walk into things and his drawings are much more elaborate due to the hand strengthening exercises. Tr. 254. He has also learned to use strategies when he that he , like an orange, instead of . Tr. 255.

Ms. also testified that also goes to counseling two sessions per week. Tr. 256. One session is individual and one is in a group. Tr. 256. As with , Ms. s testified that although it’s a pull-out, the will push in so she can help him negotiate with his peers when necessary. Tr. 256. Ms testified that she believes is a necessary service because he has a and when he came to his . Tr. 256. Also his play skills were limited when he first came and he could only do repetitive play in the dollhouse. Tr. 257. Ms. testified that he has made progress. Tr. 257. She stated that “he now chooses different areas of the classroom. He’ll play with different children and he’s now independently using his strategies and realizing when things are really not a big deal and he doesn’t need to get upset.” Tr. 257. has also made progress with his social skills. Tr. 257. Ms. testified that he will now play with other children and he has coping strategies. Tr. 259. His frustration tolerance has gotten better. Tr. 259. With respect to attention, Ms. Marks testified that can become very distractible when involved in a large group activity however his attention has improved this year. Tr. 266. She stated that “He’s far more confident and able to understand the activities and know what’s required of him. He is able to attend more on his own.” Tr. 260. Ms. testified that lunch is in the classroom with students at each table. Tr. 262. requires special education support during lunch due to regarding smell and also to help him socialize by his language and asking for a turn to talk. Tr. 263.

Ms. reviewed s June 1st 2011 IEP (D-4) and determined there were areas that should have been addressed that were not. Tr. 263. She testified that although the academic goals are accurate, there are no goals and he requires this extra support for his . Tr. 263.

Ms. also testified that benefits from the support of three adults in the room for his attention issues and because of his . Tr. 264. She testified that when he has a , he goes to his and needs a teacher with him. Tr. 264. She testified that this has gotten better and when he cries it is for a shorter period of time and when his strategies are pointed out, he utilizes them. Tr. 263.

Ms. has testified that is an appropriate placement for . Tr. 265. She stated that he has made a lot of progress because of the supports that they provide and the programs that they have at their school. Tr. 265. She stated that the multisensory, the small setting, having the therapist as part of the classroom, all have contributed to his progress. Tr.

265. Ms. testified that she believes that the smallness of the school is significant for the student and that he would not be able to handle a school with 800 or 900 students. Tr.

266. She testified that he would and and would need a lot of support. Tr. 266. Ms. testified that” since the start of the school year until now [NF] has become a participant in the classroom. He . He is . He wants to be with his friends and he also has learned a lot, and has developed strong beginning reading skills… and likewise in math … and the has decreased.” Tr. 266.

On cross examination, Ms. testified that they have a school wide and has his individual strategies, but does not have an individual behavior plan. Tr. 289-290. She also stated that the math and reading groups change based on students developmental levels, what they learned and their learning styles. Tr. 291. Ms. Marks also testified that had a level than his classmates. Tr. 297.

Ms. testified that at the beginning of the year about six or seven students did not know their letters and sounds. Tr. 298. With respect to math, there was only one kid who did not have correspondence. Tr. 299. Ms. also testified that she does assessments with her students but they are done individually with the kids and she doesn’t call them tests. Tr. 301. She also testified that they have two parent-teacher conferences a year but they speak to the parents frequently and they have a daily communication notebook. Tr. 301.

On cross, Ms. stated that needs were not addressed on the June 1, 2011 IEP. D-4, Tr. 302.

The next witness was . She is a pathologist and has been at for seven years. Tr. 312. She stated that her duties include “treatment, assessment, ongoing informal assessments, development of treatment plan and working with a multidisciplinary team all in the realm of speech pathology.” Tr. 312. She is familiar with since he is on her caseload at . Tr. 313. Ms. stated that has , including . Tr. 314. She testified that at the beginning he presented as an extremely quiet child so it was difficult to assess his comprehension and when given directions or asked questions, he found it difficult to comprehend and respond appropriately. Tr. 314. He had a decreased sentence length – three words at a time. He also did not initiate conversation and played by himself. Tr.

314. Ms. testified that she is familiar with his classroom behavior because she is in the classroom a lot throughout week. Tr. 315. At the beginning of the year, it was difficult for to attend in whole class instruction and therefore his comprehension and ability to be a classroom participant was decreased. Tr. 315. He could not answer questions or relay information he had learned and socially it was difficult for him to interact with his peers. Tr. 315. Ms. testified that has a difficult time understanding interactions with his peers including gaining attention and following through on an interaction. Tr. 316. Ms. Light stated that he needs support to help organize his language and verbalize his thoughts and ideas. Tr. 316. She testified that the peers in the class with higher serve as models for and give him more confidence. Tr. 316.

Ms. testified that receives therapy three times a week for thirty minutes, two times individually, and once in a group of two. Tr. 317. She stated that the majority of the sessions are pull-out however depending on the activity in the classroom and the goals that is working on, she may push-in. Tr. 317. Ms. testified and therapy is a necessary service for . Tr. 318. Ms. testified that ’s attention is limited at sessions but has increased during the year, however, he still requires redirection during the thirty minute session. Tr. 319. To address all of the students to not only listen with their ears but with their whole body. Tr. 319.

Ms. testified that at each they make a visual plan, usually a three-step plan and they draw it out. Tr. 320. That way knows what activities are ongoing. They usually recall events and formulate narratives and then focus on his language goals usually through a drill (ie. a structured task). Tr. 320. She testified that has past events, something a five year old should be able to do, so she works on this using photographs of the actions so she can build on his expressive language skills. Tr. 321.

Ms. testified that the small group setting is important to address s in that she can better address his . Tr. 322. She testified that she speaks with his classroom teacher on a daily basis throughout the day and formally at least every week for an hour when they have full multidisciplinary team meetings. Tr. 322. Ms. also testified that she shares with ’s classroom teacher strategies. Tr. 323. is supported by the use of visuals and pictures to not only address content but also question words. Tr. 323.

Ms. testified that has made progress in the classroom. Tr. 323. First on the , he will address his peers and wants to talk to them and be next to them in the classroom. Tr. 323. She testified that he still within the classroom setting and he’s following more routines and directions. Tr. 324.

Ms. testified that she reviewed the June 1st IEP (D-4) and there are no goals for and there are no social communication goals addressed on his IEP. Tr. 325. She testified that has Tr. 325. Ms. stated that she created her own goals for the 2011-12 school year and shared them with his team to ensure carry over in all realms. Tr. 326.

Ms also testified that has made progress towards these goals this year. Tr. 327. First, he has improved his comprehension of concrete WH questions and has made progress in appropriately answering questions. Tr. 327. In his receptive vocabulary, he has improved his ability to categorize objects and his ability to retain and follow directions. Tr. 327. Expressively, he has increased his length of utterances to about four to five words which is closer to age appropriate. Tr. 327. He has been using fuller sentences to answer questions. Tr. 327. He also now interacts with his peers. Tr. 327. Ms. stated that he continues to have difficulty in word finding and needs support to engage with his peers for longer periods. Tr. 327.

Ms. testified that requires special education support at lunch to successfully interact with his peers. Tr. 328. Ms. stated that he , especially at lunchtime with respect to and his and he . Tr. 329. At the beginning of the year, he would have had more 330. Ms. that it would be very difficult for in a lunchroom of 150 to 200 students. In addition to the , Ms. stated that 150-200 students is an overwhelming amount of and would . Tr. 330.

Ms. testified that at the start of the school year where he and would have Tr. 331..He was not able to engage in problem solving or talking about what was bothering him. Tr. 331. taught problem solving and coping processes. Tr. 331.

Ms. testified that requires a small school setting because “he requires a lot of individual support … and due to his …” Tr. 332. Ms. stated that in a school with 800 to 900 students he would experience and would not be able to in the moment and it would be difficult for him to gain the confidence he gained this year to use language to solve his problems. Tr. 332. She also stated that “based on his sensory needs it would be difficult for him to share that space with that many people”. Tr. 333.

Ms. testified that he has made progress this year and she attributes it to the “small nurturing environment and a language enriched curriculum that has given him many chances for review and lots of repetition to learn new material.” Tr. 333. She stated that she believes that appropriately meets ’s special education needs. Tr. 334.

On cross examination, Ms. testified that there are 19 children in her caseload and ten are in ’s classroom, and the rest are in another classroom. Tr. 334-335. Ms. testified that twice a week receives speech at 8:30 in the morning, which is upon arrival and during morning work and once a week it falls at an influx time in his schedule or it’s either during social studies or at the end of a read aloud portion of the classroom. Tr.

335. For the most part, speech takes place in the therapists office. Tr. 336.

Ms. also testified on cross that two times a week during lunch she is providing one-to-one services for a student and the remaining students are supervised by Ms. . Tr. 338.

The last witness was , s father. Tr. 341. He testified that . Tr. 342. He received when he was turning three but then it turned into Tr. 343. He then went from . Tr. 344. The father testified that his wife worked at Tr. 343. During that time he received . Tr. 344. The father testified that initially the SEIT was assigned for five hours then it went to ten, then it went to fifteen. Tr. 344. At that point the DOE coordinator said that they couldn’t go beyond fifteen hours a week and that needed a different setting. Tr. 344. The father testified that he was given a list of schools to visit and the school that impressed them was the . Tr. 345. Therefore, and received his related services.

The Parent testified that he received a letter in March to show up for a meeting, however, when he showed up, he was told there was no meeting. Tr. 346. He took a day off of work to attend the meeting. At that time someone came out and told him they had a system upgrade and the meeting notice was a mistake. Tr. 347. The Parent then testified that he received a second notice to attend a meeting on May 3, 2011. P-B. Prior to the CSE meeting the Parents sent the CSE all the reports they had and received confirmation that the documentation was received. P-M, P-N.

The Parent testified that at the May 3nd IEP meeting, the team recommended a 12:1 class. Tr. 350. The father did not think that would work for because he needed more than one teacher in the room and required a great deal of redirection. The Parent advised the team of his opinion. Tr. 350. ’s teacher from also advised the team that this would not work. He stated that she stated that he needed a lot of redirection and when he came back from a break it took him a long time to get back into his routine. Tr.

351. The Parent testified that he tried to let the team know that needed a small language based setting, and that it had to be a twelve month program to avoid regression. Tr. 351. At the time they had received an acceptance to the . Tr. 351. He also told the team about but he didn’t think anyone was listening to him. Tr. 352. The Parent testified that “I just don’t think they gave me a chance to say things and to point things out to them and it seemed to me that their goal was just to get this over with and to put him in where they wanted him. Tr. 352. He testified further that no goals were discussed at the meeting. Tr. 352. H e stated that they recommended a program since he did not have behavioral issues and they indicated that a class is for students with behavioral issues. Tr. 353. He also testified that the CSE did not consider any other programs. Tr. 353.

The Parent’s concern with the program was that it would not provide with the appropriate support. Tr. 353. He testified that at the ratio of adults to children was basically and it got him engaged, helped him with redirection and with his sensory issues. Tr. 354. He testified that him and his wife, the teacher at , and the recommended a twelve month program. Tr. 354. He testified that anything less than twelve months will cause . Tr. 355.

Following the May meeting, the Parent wrote to the District but did not get a response, however another IEP meeting was scheduled. Tr. 355, P-F. He testified that both he and the teacher tried to speak at the June meeting and the team wouldn’t listen. He testified that at this meeting the CSE recommended a program. Tr. 357. In the June 1st IEP (D-4), on the signature page it states that the mother was present, but she was not. Tr. 357. The Parent testified that he didn’t think any documents were discussed at the meeting. Tr. 358. The father stated that the CSE had a copy of the IEP and there was nothing else they wanted to look at. Tr. 358. He testified that they showed him the IEP but he did not have time to review it at the meeting. Tr. 358. The father testified that he told them about Dr. ’s report (D-5 ) and they made a copy and put it in NF’s file but didn’t review it. Tr. 359. He stated that the only discussion of the documentation was done by the father when he highlighted to them what the teacher and psychiatrist had noted. Tr. 360. The Parent indicated that the CSE changed the recommendation from stating that the obligation of the District was to place my son in the least restrictive environment and that was it. Tr. 361. The team never explained what this meant nor did they tell them anything about the program. Tr. 362.

The father clearly expressed his concerns with the placement. Tr. 362. He again alerted the team that he had an acceptance to a non-public school and the CSE did not consider it. Tr. 363.

Following this meeting, the Parent received a placement recommendation for PS

24. Tr. 363. The Parent contacted the school and spoke to a secretary named Joanie and was told that they don’t have a class and do not intend on having it. Tr. 364. As a result the father wrote another letter to the CSE. Tr. 365; P-H. He did not receive a response in writing but Mr. Spears called him back and told him they were going to have the class. Tr. 366. He testified that he then called the school and spoke to Joanie again and “she said nicely that we’re -- … we’re not equipped to have this class next year.” Tr. 366. The Parent then wrote another letter to the CSE. P-I. Following this the father then received another notice for another IEP meeting on July 8, 2011. Tr. 369; P- . He then went to another CSE meeting and took off another day of work. Tr. 368. At this meeting he testified that he did not sign an attendance sheet, nor was s teacher contacted. The Parent stated that they tried to assure the Parent that there would indeed be a class but they did not explain what would happen if there wasn’t a class. Tr. 369. The Parent then wrote another letter to the placement office. Tr. 370; P-J. The Parent testified that there was no IEP for this meeting. Tr. 370. In his letter to Mr. P-J) the Parent requested a class profile, however the Parents never received a response. Tr. 370.

The Parent testified that over the summer the Parent filed an impartial hearing request he stated that although he had gotten accepted to the , he wanted to know where the District was placing him. Tr. 371. As a result of this request, a resolution session was held and he received a class profile at that time. P-E; Tr. 371.

Subsequent to the resolution session, the Parent received a notice to attend another CSE meeting on August 8, 2011. Tr. 372; P-D. The Parent took off another day of work and attended this meeting. Tr. 374. There was no attendance sheet and the Parent was told that the meeting was scheduled in error. Tr. 375. Therefore, nothing was discussed at the meeting. Tr. 376. He then wrote them another letter expressing his concerns about whether or not there was a placement in place. P-K, Tr. 377. The Parent testified that the student had already lost his place at the , he wasn’t sure if there was a placement at and he had gotten accepted to in the interim. Tr. 377. He stated that he wrote the letter because “I just wanted to know where my son would be going to school. There was definitely no clear indication that would have a class because the school said they wouldn’t.” Tr. 378.

The father stated that he visited in September 2011. Tr. 378. He testified that Mr. spent 45 minutes with him. Tr. 378. Mr. took him to the classroom and was able to observe the three students and the teacher and he gave him a tour of the building. Tr. 379. The father testified that based on his observation of the classroom, he did not think it would be appropriate for since the children in the classroom did not appear to be on the same level as him. Tr. 480. The Parent also stated that the school itself would be overwhelming for NF. Tr. 381. In this regard, the father testified that he wrote a letter to the CSE expressing his opinion of the placement. Tr. 382; P-L. In December 2011, the Parents received a letter from the CSE regarding testing (P-O) and the Parents sent back a consent allowing it to take place. Tr. 383. After the testing was done, the District generated a report with their findings (P-P) and set up a CSE meeting to discuss it. Tr.

384. At the meeting, the CSE recommended be referred for the 2012-13 school year. Tr. 387.

The father stated that s making progress at . He is excelling in math and although his issues are still present with . Tr. 380.

The father testified that he signed a contract with on August 15, 2011. Tr. 387. He stated that “I would send him to if it worked but if it didn’t this could be a great place to go, at least based on our observations of the school.” Tr. 387. He stated that this was his “back-up” plan . Tr. 387. He testified that he has been paying the tuition each month. Tr. 387. He also stated that if he had found appropriate, he would have sent here instead of and he believed that would have found someone to fill slot. Tr. 388.

The father testified that he believed that is an appropriate setting Tr. 388. He communicates with the school every day through a communication notebook, and they sometimes call him on the phone. He also emails the teachers every Sunday night to advise them about ’s weekend. Tr. 389.

With respect to the letters that the father wrote, he testified on cross examination that he personally wrote them and reviewed them with his wife and sometimes with his brother and on occasion he would check with his attorney. Tr. 392. He also testified that the class profile was given to him at the resolution session. Tr. 393. He also testified that prior to his visit in September, he visited with to check him in and have the nurse review his health documents. Tr. 393. He also testified that after meeting with the psychologist and psychiatrist, they made certain recommendations and as a result they applied to certain schools. Tr. 396. The father testified on cross examination that he started the application with and others in December 2010. Tr. 397. He testified that he told the CSE in May about the because that was the school had gotten into at the time of the meeting. Tr. 397. The father testified that counsel attended the erroneous July and August CSE meetings Tr. 399.

On redirect, the father testified that all of the schools he applied to were approved by the NYC Department of Education and as soon as he heard from he advised the District . Tr. 401. He also testified that he from the school as to whether there would be a placement for , so he didn’t know whether or not to believe it. Tr. 402. He also testified that he became aware of the state approved non-public school schools by reviewing the directory on line. Tr. 408.

FINDINGS

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 92d Cir. 2005]). Issue 1-Appropriateness of District Program

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F3d 165, 172 [2d Cir. 2009] Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381 [2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dept of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citation omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. §1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dept. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see, Application of the Dept of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

I have reviewed all of the testimonial and documentary evidence in this matter. Procedurally, a turning five IEP meeting was held on May 3, 2011. At that meeting an IEP was developed and a placement recommendation was made for a classroom in a community school with related services of A second IEP meeting took place on June 1, 2011 as a result of the Parents’ objections to the placement recommendation made in May and a more restrictive placement recommendation was made for a class in a community school with the same related services and goals as in the May 3rd IEP. This was the final placement recommendation and that is what is being challenged by the Parents. Although the hearing record demonstrates that there was no individual present at the June meeting that could have personally implemented IEP, there is no evidence in the hearing record that this was a procedural error that impeded s right to FAPE., significantly impeded the parent’s opportunity to participate in the decision-making process, or caused a deprivation of educational benefits.

Mr testified that the CSE considered all of the reports that were entered into evidence by the District (D-6-D-11) as well as the report from Dr. that the Parents introduced at the meeting (D-5).The Parent, on the other hand, testified that the District did not look at any documents except the IEP. I credit the testimony of the District in this regard. Mr. testified that the student’s academic levels were in the average range and had shown progress since his February evaluation. Mr. indicated that the reason the team reconsidered the placement was because of the Parents and the teacher from AHRC’s discussion at the June meeting that would benefit from additional support in the classroom.

With respect to the goals in the June 1st IEP, Mr. testified that they included the goals that were in the May IEP .There is no indication that the Parents objected to the inclusion of these goals in the IEP. Mr. testified that although the goals were drafted for a setting, the team determined that they would be appropriate for a setting and were appropriate for . Tr. 79-80. In reviewing them, the academic goals appear to be appropriate for a student entering and there are goals for as well as his occupational therapy goals. Although Ms. provided testimony that required since he had a very and his , there was no evidence in the CSE Educational Progress Report from (D-9), nor in any of the reports from the related service providers that this was the case at the time the IEP was drafted. It is true, however, that after started at , there was evidence of a low frustration level and a difficulty in coping skills as well as tantrumming behavior. Unfortunately, whether a related service should have been provided or whether a goal should have been developed must be determined at the time an IEP is developed, not in hindsight.

With respect to ’s , Ms. testified that has , . Tr. 314. Even Mr. indicated that ’s . Tr. 44. In this regard, Ms. indicated that there were no goals for and there are no goals on IEP. Tr. 325. In the CPSE Report from , it indicates that demonstrates some ability to independently greet adults and peers appropriately, to maintain appropriate eye contact, and to initiate conversation. D-10. , it also states that he has difficulty with attending to task and with following directions, it appears that one of the goals on the IEP involves following directions and the IEP indicates that”[ ]requires a great amount of prompting, repetition, and modeling in order to function in class and improve needed areas.” D-4. It is clear that needs to work on . It is also clear that the goals should have been reviewed again in a more formal manner at the June IEP meeting, however, the fact that it wasn’t does not amount to a denial of FAPE in this matter since the goals were appropriate and provided educational benefit and the Parents had the opportunity to object as they did about other issues affecting the development of the IEP and did not.

The fact that the CSE convened another IEP meeting in June to reconsider the placement recommendation and listened to the Parents objections at the meeting and those of nursery teacher provides evidence that the Parents had the opportunity to meaningfully participate in the development of the IEP, the needs, goals and program and placement recommendations at the June meeting. The Parents felt that needed more support in the classroom and the team accommodated the Parents by placing the child in a class so that there would be a paraprofessional in the room in addition to the special education teacher. In , had one special education teacher and two assistants in the room. D-9. The Parents also wanted the child in a 12 month program to avoid regression, however there is no indication in any of the reports, at the time the IEP was drafted in June of 2011, that (D-5), and although it was indicated in report, it did not indicate that it was based but rather the purpose of staying in a 12 month program was to enable to “increase his overall global development.” D-9. Accordingly, the team determined that a 10 month program was appropriate for at that time. The fact that that recommendation has changed for the 2012-13 school year has no bearing on the 2011-12 school year. Tr. 387.

The District met its burden in proving that the program would be appropriate for the 2011-12 school year. Ms. provided evidence that she provides a program in which is emphasized, and she has the support of a who pushes in to help facilitate the goals of the goals of the students. Tr. 123.Ms. testified that based on her review of the June1st IEP, she could meet ’s goals and that his areas of could be addressed in the classroom. Tr. 122. She also testified that his related service mandates could be met. Tr. 123. She indicated that the students were 4-5 years of age and had similar functional levels for reading, and that she would differentiate instruction based on their individualized needs. Ms. also stated that at the beginning of the school year there were three students in her class, however by the end of September there were four or five and by April there were 11 students. The Parents argued that was placed in a class so that he could interact with typically developing peers, yet he would have been placed in a more restrictive environment since he would have been in a self contained classroom with 3 other students. IHO-II. Mr. testified that would be in a program except for nonacademic subjects. Tr. 87. Although Ms. testified that gym is usually just her class, she indicated that there were other scenarios where two classes were together. Tr. 134. It is clear that being in a community school provides opportunities for mainstreaming that a specialized school does not provide .At the June IEP meeting, they considered other settings including an integrated co-teaching class and a special class in a specialized school and determined that the integrated co-teaching class would not adequately address his learning, social and communication needs and that the specialized school would be too restrictive for him at that time. It should be noted that the hearing officer understands that the child was placed with for the 2012-13 school year. Although ’s needs may not have risen to that level for the 2011-12 school year, the CSE clearly determined that it was appropriate for the 2012-13 school year.

There was a great deal of testimony as to whether there was a placement at in a class for . The testimony is clear that prior to the start of the 2011-12 school year, a specialized class in was in place for In fact, the testimony indicates that the Parents were aware of this class and were given a class profile at the time of the meeting on August 8, 2011. It is unfortunate that the Parent received mixed messages from the school office prior to the August meeting, however, it was clear that a placement was offered and available for prior to the start of the 2011-12 school year.

For all of the foregoing reasons, I find that the District provided FAPE to for the 2011-12 school year. Hence it is not necessary to consider Prongs 2 and 3. See Application of a Child with a Disability, Appeal No. 02-092. However, I will do so to complete the record. Issue 1-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the services they seek for HA In order to meet that burden, the Parents must show that the Parkside School offered an educational program designed to meet HA’s special education needs. Burlington, 471 U.S. at 370; M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000). The Second Circuit has explained that “Subject to certain limited exception, the same consideration 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…” (Frank G. v. Bd. of Educ., 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions). The issue turns on “whether a placement is reasonably calculated to enable the child to receive educational benefit. A private placement meeting this standard is one that provides progress not regression. Gagliardo, 489 F.3d at 112. “To qualify for 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 specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112, See, Frank G., 459 F.3d at 364-65). See also, A.D. and M.D. v. Bd. of Educ., 690 F. Supp. 2d 193 (2d Cir. 2010). . It should be noted, however, that while evidence of progress is relevant, it does not in and of itself establish that a private placement is appropriate (Gagliardo, 489 F 3d. at 115 [citing Berger v. Median City Sch. Dist., 348 F3d 513, 522[6th Cir. 2003][stating that evidence of academic progress at a private school does not establish that the private placement offers adequate and appropriate education under the IDEA”])

The Parents have met their burden in showing that the was an appropriate placement for . Testimony has been provided to indicate that is a state approved special education school. The school services children who have a wide range of disabilities including and group. In each class there are , and . They are ungraded and have different ages in the same class Tr. 187. The philosophy of the school is that with a nurturing environment and excellent staff every child can reach his/her potential. Tr. 188. The curriculum is a language based curriculum that follows the state standards. Tr. 188.They have a full range of related service providers. The small class size and student to teacher ratio allows for individualized instruction, and allows for small group instruction. Since the students are grouped by their birthdays, is in a class with ten children who are born in 2006. All of the students are classified with except for one.

Ms. clearly stated that a great deal of collaboration takes place between herself, the Parents and the related service providers Tr. 280. Ms. has testified that she has seen progress in his academic areas as well as in his language development and in writing. Tr. 243; 248, 251 . This also was indicated in the reports from . P-Q-P-T.Ms. also testified that she believes that is an appropriate placement for Tr. 266. Ms. has also indicated that he has made progress in the classroom and is able to interact, though he still needs assistance, but that participation has increased. In addition, he is talking in longer sentences and is following more routines and directions. Tr. 323. She specifically stated that she believes that appropriately meets s special education needs. Tr. 334.

is receiving , both mandated services on his June 1st IEP and has the advantage of having both related service providers as part of his classroom team. .

Based on the foregoing, it is clear that is providing with educational instruction specially designed to meet his unique needs and he is benefitting from the instruction and receiving educational benefit. Therefore, I find the Parents have met their burden in proving the appropriateness of for . Issue III-Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents never inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 USC 1412 (a)(10)(C) (ii).

Based upon the Parents actions, in terms of equitable considerations, I find that the Parents cooperated with the District in all respects and analysis of equitable considerations offers no basis to rule against them.

Based upon the foregoing, I find that the District provided FAPE to for the 2011-12 school year.

ORDER

IT IS HEREBY DECREED that the Student is not entitled to tuition reimbursement and/or payment of tuition directly to , transportation or related services for the 2011-12 school year. Dated: June 20, 2012 Corrected Date: June 25, 2012 (Correction made to Cover Page)

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EBK:gc

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

Parents Exhibits

No. Date Document Pages

A 04/15/2011 IEP Meeting Notice 2

B 05/03/2011 IEP 11

C 05/24/2011 IEP Notice 2 D 07/28/2011 IEP Notice 1 E 07/28/2011 Class Details 1 F 05/10/2011 Parent Letter with Fax 2 G 06/03/2011 Letter with Fax 2 H 06/23/2011 Parent Letter with Fax 4 I 06/29/2011 Parent Letter with Fax 2 J 07/12/2011 Parent Letter with Fax 1 K 08/17/2011 Parent email 4 L 09/14/2011 Parent Letter with Fax 3 M 08/03/2011 Parent email 1 N 05/2/2011 Fax Cover Sheet from Parent 2 O 12/08/2011 Consent for Reevaluation with Fax 3 P 01/19/2012 Evaluation 4 Q 01/20/2012 Mid-Year Classroom Report 4 R 01/15/2012 Mid-Year

Report 4

S 01/17/2012 Mid-Year Occupational

Therapy Report 3

T 01/01/2012 Mid-Year Counseling Report 2

U 2011-2012 Class Schedule 1 V 04/03/2011 Affidavit of Payment 2 W 2011-2012 Contract 2 X Various Dates Proof of Payment 7 Y 2011-2012 Proof of Attendance 1 Z Undated Curriculum Overview 17 AA Undated Program Description 13 BB 2011-2012 Therapy Goals 1 District Exhibits No. Date Document Pages 1 01/23/2012 Due Process Complaint 4 2 01/27/2012 Due Process Response 3 3 07/09/2011 Final Notice of Recommendation 1

4 06/01/2011 IEP 13

5 05/31/2011 Doctor Letter 2 6 02/02/2011 Social History Updated 3 7 02/07/2011 Evaluation 4 8 01/13/2011 Therapy Report 2 9 01/11/2011 CSE Progress Report 2 10 01/10/2011 Progress Report 2 11 12/10/2010 Report 6 12 06/21/2011 Evaluation 7 IHC Exhibits No. Date Document Pages I 03/13/2012 Subpoena to School 3 II 5/17/2012 Closing Brief in Support of Petitioner’s

Claim 29 III 5/17/2012 Closing Brief 18

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Footnotes

[30] minutes, ; Occupational Therapy, one time per week, 30 minutes, group service. P-B. Following this, an Individualized Education Program (“IEP”) was developed by the District on June 1, 2012. D-4. Pursuant to the June 1st IEP, the following recommendations were made: Special Class in a Community School, ; Speech and Language Therapy, one time per week, 30 minutes, ; ; one time per week, 30 minutes, ;. Occupational Therapy, one time per week, 30 minutes, ; Occupational Therapy, one time per week, 30 minutes, group service. The Parents entered into a contract with . for the 2011-12 school year on August 12, 2011. P-M. .The Parent filed a Due Process Complaint dated January 23, 2012. D-1. I was appointed to hear this matter on January 24, 2012.