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: June 8, 2012

June 19, 2012

Actual Record Closed Date: August 4, 2012

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 8, 2012

Esq. Attorney — Student

Director/Lower Elementary — Student

School (via telephone) — Student

Teacher, School (via telephone) — Student

District Representative CSE — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 19, 2012

Esq. Attorney — Student

Parent (via telephone) — Student

District Representative CSE 8 — DOE

School Psychologist (via telephone) — DOE

Teacher (via telephone) — DOE

Placement Officer (via telephone) — 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 Noel W. and ., the Parents (“Parents”) on behalf of ., the student (“Student”), through their attorney, , Esq. by filing a Due Process Complaint dated March 22, 2012 and an Amended Due Process Complaint dated May 17, 2012 with the District.

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

There were two days of hearings in this matter. Hearings were conducted on June 8, 2012 and June 19, 2012. Extensions were granted in this case making the final compliance date August 14, 2012. A list of Exhibits is attached as Exhibit A. The Parents, the District and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND

This case involved an eleven year old student. During the 2011-12 school year, . attended where the Student was unilaterally placed by the Parents.

With respect to the 2011-12 school year, an Individualized Education Program (“IEP”) was developed on May 26, 2011. D-3.Pursuant to the March 26th IEP, the following recommendations were made:

1. Special Class in a community school, 12:1:1

2. Counseling, one time per week, 30 minutes, 3:1

3. Occupational Therapy, four times per week, 30 minutes each time, 1:1

The District issued a Notice of Recommendation dated August 9, 2011. D-3. It stated that the offered school shall be , 211 8th Street, Brooklyn, N.Y.

The Parents entered into an Enrollment Contract for on February 2011. P-B. They paid the tuition for the 2011-12 school year in the amount of $45, 960. P-D.

The Parents filed a Due Process Complaint on March 22, 2012 (IHO-I) and then an amended Due Process Complaint on May 17, 2012. P-A. I was appointed as an Impartial Hearing Officer on March 22, 2012.

POSITION OF THE PARTIES

Parents’ Case

The Parents called three (3) witnesses, , and and placed six (6) documents in evidence. P-A--P-F.

The first witness was . She has her Bachelors of Science Degree in Family Studies and Early Childhood Education. She is NYS Certified in Special Education K –

8. Tr. 18. She has been at for 11 years. Tr. 18. She taught five year olds for five years and she has been the lower elementary director for six years. Tr. 19. The lower elementary school encompasses ages 5-7 and has 35 students in it and there is a total of 125 students in the building. Tr. 20. She has never worked in the public school system. Tr. 19. Ms. testified that School is a school dedicated to educating students with learning disabilities and is a nurturing, structured environment that encourages children to learn at their own pace and in the way they learn best. Tr. 20. There is no religious instruction but the school is founded on the testimonies of Quakerism which are that human tenets that are always to be good people in society. Tr. 21.

Ms. testified that the supports that are provided to help children with their anxiety and emotional issues include small classroom size so that the students’ needs can be met. Tr. 21. She stated that there are no more than 12 students in a class with two teachers, a head teacher and an assistant teacher. The head teacher is required to have a Masters in Special Education. The assistant teacher does not have to have one. Tr. 23; Tr. 21. They also have an ongoing learning curriculum that supports emotions, social skills, and the social development of students. Tr. 22. In addition, there are small groups of five to seven students for math and reading and they are grouped by ability. Tr. 22. There is also a social worker in the lower elementary division for ongoing support to individual children and to facilitate groups. Tr. 22.

Ms. Burchyns went into the various techniques used at to help children learn. Tr. 23. She testified that within the small reading groups, students have - Preventing . They also have a very structured writing curriculum that supports children with learning disabilities called the Writing Skills program and all the teachers are trained in it. Tr.

24. Ms. also testified that there is individualized curriculum as well depending upon what a student’s needs and skill levels might be. Tr. 24. They also have built into the classrooms to support attentional and auditory processing difficulties and smartboards in the classrooms. Tr. 24.

Ms. testified that there is a range of learning differences in the school, however, most have language based learning disabilities and often are classified with learning disabilities though some students have attentional difficulties and/or executive functioning difficulties. Tr. 25. She stated that most students have average or above average IQ’s and are struggling in different learning areas. Tr. 25.

Ms. stated that she knows . since he started in the lower elementary division at and is now in the elementary division. Tr. 26. She believes he started at approximately three to four years ago. Tr. 26. She taught his science class when he first started. Tr. 27. She testified that she has not had formal discussions with his teachers about him but sees him around the building often. Tr. 27. She testified that “I definitely feel that I’ve seen him around the building enough and through the years to have seen his skills grow. His reading group has changed and grown. He has gotten into different classrooms with the older students each year.” Tr. 28. Although is not a graded school, she stated that “he’s been placed in reading and math groups that have changed and developed for the skills that he has developed and grown in.” Tr. 28. From her personal experience with ., she testified that he was appropriately placed at and that the school is providing him with educational benefit. Tr. 29.

On cross examination, Ms. stated that she could not say what .’s reading skills are. She testified that is an and has been in the elementary division for two years. Tr.

32. She stated that she is basing the fact that he has made progress in discussions with the assistant head of his division and seeing him around school. Tr. 32.

Ms. testified on cross examination that does not follow IEP’s. Tr. 37. She stated that when students first come into they are placed in socially appropriate classrooms based on their age with no more than a two year age difference. Tr. 37. Then, they use the documentation coming in including teacher reports, report cards, etc. and , who does admissions also supports the placement. Tr. 37. Students can spend two years in a homeroom depending on what would be most beneficial for them depending on their individual needs. Tr. 38. The student could also have the same teacher if the teacher stays in the classroom for a second year. Tr. 39. The “homeroom” teacher teaches everything except for reading and math. Tr. 39. For all students in the elementary program, therapy two times a week in a small group and therapy one time per week in a small group. Tr. 39. The students receive this regardless of whether it is mandated on their IEP. Tr.40. With respect to the goals on the IEP, Ms. says they will look at the goals but are not required to follow them, and will also develop their own goals and reports that are provided to the CSE before a meeting. Tr. 40. The Speech and Language provider does not participate at the CSE review however they do collaborate with the classroom teacher. Tr. 41. Generally the therapists are working on auditory processing skills, auditory attention, expressive and receptive language skills, pragmatic skills and vocabulary in the small groups. Tr. 42.

Just like with therapy, Ms. testified that if a child needs occupational therapy they will receive it one time a week in a small group. Tr. 43. The gives visual perceptual informal tests as well as other informal tests, in addition to reviewing outside evaluations prior to determining whether a child requires Occupational therapy. Tr. 43.

Ms. testified that customarily sends out their contract for the following school year in late January, early February. Tr. 45. There is also a scholarship program. Tr. 45. If a parent decides to place their child in another site, Ms. stated that the deposit will not be refunded but she notes that there have been exceptions. Tr. 45.

Ms. stated that two progress reports are prepared by per year, a midyear and an end of the year report. Tr. 46. She states that “The progress report describes in length…the type of program they’re in, the type of work that they do, the strategies that they need, the support that they need, the strengths and weaknesses, the grade level of the group.” Tr. 47.

For elementary school, the social studies curriculum is developed with the assistant head of school, but is based on the independent school curriculum, the public school curriculum as well as curriculums that have been developed by . Tr. 48. In terms of reading groups, the children are placed based on their levels from informal assessments in addition to where they’ve been in prior years. Tr. 48. determines who teaches which reading group depending upon their knowledge of certain programs, the skill level of the student, their relationship with the children in the class, etc. Tr. 48. All of the head teachers have their Masters in Special Education. Tr. 49. There is also staff development at . Tr. 50.

On cross, Ms. testified that based on her recollection . is reading below his grade level and has difficulties with spelling, fluency and decoding. Tr. 54. She also stated that when . was a student of hers, organization, executive functioning, attention, regulation, sensory difficulties, as well as encoding and decoding impacted his abilities. Tr. 55.

At , Ms. testified that the students do not interact with typically developing students. Tr. 57. Based upon Ms. professional opinion and her observations of a class in a public school, she does not think there would be enough individual instruction for . and it would be too distracting. Tr. 57.

The next witness was . She has a Bachelors Degree in Psychology and a Masters Degree in Childhood, General and Special Education and is certified in Special Education. Tr. 61. She has worked at for four years. She was an assistant teacher for three years and this is her first year as head teacher. Tr. 61. She could not testify with respect to the credentials of her assistant teacher but testified that from her observation, she has the experience to be an assistant teacher. Tr. 62. Her duties as head teacher include monitoring the safety and well being of her students and the social, emotional and academic needs of the students. Tr. 63. She teaches the core curriculum including writing, social studies, current events, and learning classes. Ms. also teaches small group instruction for math and reading. Tr. 63. She communicates and collaborates with her assistant teacher, parents and colleagues and attends CSE meetings. Tr. 63.

Ms. testified that she participated in a CSE review of . for the 2012-2013 school year but it is not relevant to this preceding. Tr. 64. She testified that her present class is 12 students, eight boys and four girls with her and an assistant teacher. Tr. 64. The assistant teacher supports Ms. and teaches some of the curriculum with Ms. ’s support. Tr. 64. Ms. testified that she teaches . math and another teacher teaches reading. Tr.

65. She testified that they cross group the students based on skill for reading and math. Tr. 65.

Ms. described . by stating, “[ .] is an , and boy. He’s an enthusiastic and curious learner. He loves to be read to and he loves reading. He loves writing and poetry and telling more personal narrative stories and he loves history. He loves learning about any topic in social studies, and he really brings a lot of knowledge to the table.” Tr. 65-

66. She further testified that . has with , and issues. Tr. 66. She stated that he’s frequently distracted by and learning times throughout the school day. Tr. 66. He requires teacher support to remain focused and refrain from side conversations. Tr.66. She stated that he is impulsive and struggles with self regulation and self monitoring. Tr.

66. She indicated that he has high levels of energy so he takes frequent movement breaks and uses a standing desk. Tr. 66. She also testified that he uses noise cancellation headphones and uses a privacy shield and sometimes works at a quieter space in the hallway. Tr. 66. With respect to executive function issues, Ms. stated that “he really struggles getting from point A to point B. He struggles with the organization of his written and …He really struggles to identify the salient information, when he’s telling you about a personal experience, retelling a story, or writing his own story about a personal experience.” Tr. 67.

Ms. testified that he has sensory integration issues and they may manifest by causing him to be inattentive, impulsive, high energy, moving his legs a lot and this impacts his ability to make appropriate decisions both academically and socially. Tr. 67. The stand up desk is an accommodation that is provided and allows him to move his legs back and forth and stand while he is doing work. Tr. 68. Ms. testified that when he needs increased movement, he take a movement break outside the classroom. Tr. 68. He uses a heavy box, a heavy ball or runs up and down the stairs and there are specific guidelines and instructions he is given. Tr. 68. The other accommodations that provides for him are: an ; breaking down language into smaller chunks; consistent clarification and repetition of directions and material; specific guidelines of expectations; different modalities to show his understanding; organizational structures (i.e. pack-up, unpacking and homework checklists); smart board and a preview of the day. Tr. 69. The cancellation headphones he uses are only provided when he is working on independent assignments. Tr. 70.

Ms. testified that helps with his sensory integration issues by providing him with movement breaks, a standing desk and fidgets. Tr. 70. He also has therapy once a week in a group of two and they work on typing . Tr. 70. He also receives the and Language therapy twice a week in a group of three. Tr. 71.

In addition to the small group instruction and breaking down language, Ms. testified that they provide scaffolding for .. He also needs consistent teacher support to transition from one activity to another so they provide specific structured routines for him to follow. Tr. 72.

Ms. testified that in her opinion . has progressed in reading, math, writing and social studies, however they continue to see that he needs significant support. Tr. 72. They have seen an increase in his ability to self-monitor and self-regulate though he still requires support. Ms. stated that as far as she knows, . will progress to a higher level next year at . Tr. 73. She also testified that he has received educational benefit through structured routines, previewing, scaffolding, breaking down language, having him repeat directions and laying out expectations. Tr. 75. The organizational structures like the check lists, movement breaks and standing desk have been instrumental in helping him progress in his education and in becoming a successful learner. Tr. 73-74. She testified that she feels that has been an appropriate placement for . for the 2011-2012 school year. Tr. 77.

On cross examination, Ms. testified that the age range of the students in her class is nine to eleven. Tr. 76. She stated that “they have , auditory processing, expressive and receptive language issues, attention deficit disorders. They’re very bright and intelligent.” Tr. 76. She reviews IEPs because she participates in CSS reviews for each student. Tr. 77. She testified that they are not mandated to follow the IEPs. Tr. 77. The assistant teacher and head teacher collaborate frequently. Tr. 78. They write reports for each student twice a year. Tr. 78.

Ms. testified that is a self-contained school. Tr. 80. She doesn’t follow the New York State standards of instruction but they follow other programs like OrtonGillingham and Wilson. Tr. 81. Ms. stated that there is differentiated instruction throughout the school day. Tr. 82. She testified that . gets a lot of differentiated support to help him move along and progress. Tr. 82. He has increased his reading abilities and his math abilities based on the small group instruction, the scaffolds, the modified teacher language that’s used and modified worksheets. Tr. 82. In reading the teacher modifies based on what the students in her group need. Tr. 83. She is not his reading teacher so cannot speak to whether lessons are designed to meet J.W.’s needs, however she is his math teacher. Tr. 83. The lessons and curriculum are designed to support .’s needs. Tr. 84. She uses scaffolding for multi-digit addition and subtraction and regrouping. Tr. 84. For multiplication, . uses a multiplication chart and he practices using a math sheet from a website called IXC.com. that has a lot of drills. Tr. 85. When Ms. removes his supports, he struggles to remember the steps. Tr. 85. Ms. testified on cross that he is assessed through his daily journal, as well as through the narrative reports that are done and there is a formal assessment at the end of the year. Tr. 86.

.’s independent level in writing is an early third grade level because he struggles to identify salient information and often includes too much. Tr. 87. He also struggles with the mechanics of writing and writes in run-on sentences. Tr. 87. In order to improve .’s skills they broke down language into parts, worked in conjunctions, worked on how to use questions words, and what the four sentence types are. Tr. 87. They use graphic organizers. He is just starting to learn what a paragraph is. Tr. 89. Ms. Small testified that she sees progress in .’s writing. Tr. 89.

Ms. testified on cross that . has math twice a week in a classroom and twice a week in the hall. Tr. 89. Ms. testified that it can be difficult for him to be in the hall but he has supports such as his noise cancellation headphones, a privacy shield, and if need be, he is given a quieter place to work on independent assignments. Tr. 90. He is usually not removed from the group but moved farther away in the same vicinity. Tr. 91.

With respect to movement breaks, it usually occurs for . when he is in the whole group setting and there is a specific system created by the that is school-wide. Tr. 91. Ms. testified that “He takes a card. He has a timer. It’s a two minute timer. And he can go outside independently because he knows how to use the movement break, and then he comes right back.” Tr. 91.

Ms. testified that in reading, his comprehension and decoding levels are at a beginning level but his spelling, his encoding level is at level. Tr. 92. She testified that she has seen progress since September. Tr. 92. In math he is grade, grade level, but his independent levels are at a level. Tr. 92-93. In writing he is at a early third independent level. Tr. 93.

In order to help him attend, Ms. testified on cross that he has specific verbal, visual and light physical prompting from the teachers to refocus his attention, he uses fidgets, has movement breaks and uses a standing desk. Tr. 93. Ms. testified that . is the only one in the class with a standing desk but another student uses a ball chair for a period of time during the school day. Tr. 94.

Ms. testified that there is no mandated counseling at but if a student needs a school psychologist and requests it, they can see her. Tr. 95. Ms. Small stated that they teach a social and emotional learning curriculum twice a week in the classroom that is developed by the administration. Tr. 95; Tr. 96.

On redirect, Ms. Small testified that if . was in a mainstream public school environment even if he was in a special education class, it would be extremely difficult for him to function without a teacher and assistant teacher. She did not feel a para would work for him. Tr. 100.

The third witness was the father of .. Tr. 198. The father testified that . has , and . Tr. 199; Tr. 200. . has never been in a public school and has been in . Tr. 200. He indicated that prior to that time he had been at the which is extremely forgiving and unstructured was very reactive in that environment. Tr. 200. Within six months at , there was a marked change, he was able to relax which made and he was able to learn. Tr. 201.

The father testified that the biggest event in his is he is now able to read and he is also doing more interactive play. Tr. 201, Tr. 202. The father testified that present themselves by giving him a . Tr. 202. It’s hard for him to . Tr. 202. His father testified that his can put him in danger (i.e. when crossing streets). Tr. 203. He stated that helps with his by providing him with a standing desk, movement breaks, etc. The father testified that he just had a parent/teacher conference a month ago and the teachers were very happy with ’s progress. Tr. 205. He said he is doing very well academically but there are with his . Tr. 206. The teachers indicated that there are and that the teachers are addressing them by constantly . Tr. 206. He testified that these interventions have been successful. Tr. 206.

The father testified that he has paid over forty thousand dollars for tuition. Tr.

207. The father testified that he believes to the next level. Tr 207. He stated that “He was left back for one year. So he’s now very much prepared to move forward…” Tr.

207. He stated that this occurred in . Tr. 208.

When the father was asked if he would consider a placement from the DOE provided it was appropriate, he responded by saying, “We really wouldn’t. We’re locked into this and spoken to a lot of parents about it. And kids like [ ] really, really need a specialized education”. Tr. 208. He was concerned that if he gets out of the present environment, . might become a much ”. Tr. 208.

The father testified . got his first IEP right before . Tr. 209. He was at and the parents hired a teacher’s assistant to sit in the classroom. Tr. 209. He then was placed at the and the parents had an outside person sit with him as well. Tr. 209.

On cross examination, the father testified that . was recommended to and they looked at it. Tr. 210. When asked if he received an FNR on August 9, 2011, the father testified that he didn’t think so. Tr. 211. When asked if a public school placement was available that could issues, the father stated, “I don’t know enough about the program to say. I mean, all I know is from, you know, where the community is and parents with kids with similar issues. And I know from exposure to similar issues. And I know from exposure to the community that the programs that the city’s offering aren’t what offer[s]…” Tr. 211-212. He further testified that the last time he visited a public school placement was years ago. Tr. 212. He also stated on cross that he would not accept a public school placement. Tr. 212.

The father stated that has not undergone formal assessments in reading, writing or math. Tr. 213. In terms of sensory integration issues, the father stated that at home it presents with strong mood swings when there are transitions and noises. He can react to a feeling of clothing on his skin or anything that involves complex social environments with lots of personalities. This presents itself with meltdowns or . Tr. 214. The father said that is built around these issues including tennis balls mounted to the bottom of chairs to decrease the noise level in the room . Tr. 215. They take the children on trips to keep them moving and give them movement breaks and they use sound insulating headphones. Tr. 215. He also stated that being with kids that are similar to him makes him feel less like an outsider. Tr. 215.

The father testified that .’s critical thinking has increased this year and he can analyze books and movies in a sophisticated way. Tr. 216. He states that “the overall environment has made learning something he’s interested in rather than resistant to…And because he’s interested in it, he’s really sort of going deep into a subject. He’s really, you know, doing the extra work to learn more.” Tr. 217.

The father also testified that focusing on homework and projects at home is an issue and they keep him on a very restrictive diet and try to keep his sugar content down and give him plenty of sleep to calm his system down. Tr. 217-218. The father indicated that his interest in sports has been a nice outlet for him. Tr. 218. The father also testified on cross that he doesn’t receive counseling but they are thinking of having him work with a counselor to help him process his emotions. Tr. 218. He testified that the therapist at school hasn’t suggested anything he can do at home. Tr. 219.

When asked on redirect if the father would consider a New York State approved private school if it were similar to , the father stated that theoretically if it was a school that was as good as they would consider it but they have gone through so much to find a home and it is working well. Tr. 222. The father then stated on cross that is the correct placement for . And he wouldn’t consider a public school placement. Tr. 222.

District’s Case

The District called three witnesses, and placed ten documents in evidence. D1-D-10. The first witness that was called was . She has a certification in school psychology, a license in school psychology and school counseling work. Tr. 117. She has worked in New York State for four years and is a school psychologist at CSE 8, and prior to that was in CSES. Tr. 118; Tr. 119. Her main responsibility is to conduct IEP meetings, complete and conduct classroom observations. Tr. 118. Prior to this, she worked in Massachusetts as a science teacher and a physical therapist. Tr. 119.

Ms. . because she participated in his IEP review. Tr. 119. An updated assessment was not conducted because it wasn’t his mandated three year review and neither the school nor the parents requested updated assessments. Tr. 120. Ms. is familiar with because it is one of the schools that she was responsible for last year. Tr.

120. She stated that “ is a full time special education school so basically they serve kids who have special education needs; . Tr. 120. Ms. stated that every student programmatically receives . Tr 121. , on the other hand, is provided more on an at risk basis. Tr. 121.

Ms. testified that she was present at the CSE meeting, and so were the following people: , general education teacher; .’s teacher at the time form ; the Parents and the parent member. Tr. 122.; D-3. Ms. chaired the meeting. Tr. 122. First, she asked the school as well as the Parents what concerns they had about ., his academic levels, how he was progressing, and how he progressed throughout the school year. They then discussed his social/emotional functioning and medical concerns, then they proposed goals and then went over program recommendations for the following school year. Tr. 122. J.W.’s teacher, Ms. presented the CSE with her estimate of ’s academic levels, social/emotional concerns and provided the CSE with what she felt would be the goals and program recommendations. Tr. 123. At the time of the review, . was in fourth grade. Tr. 123. Ms. Sachs provided his instructional levels and estimated his reading and writing skills to be anywhere from the end of second grade level to the early third grade level which was a one and three quarters to two year delay. Tr. 124. She also estimated his math levels to be at the end of second grade which was a two year delay. Tr. 124. Ms. testified that everyone who participated at the CSE meeting had the opportunity to review J.W.’s file. Tr. 124. The Parents did not provide any current assessments for the CSE to review. Tr. 124. Ms. testified that they review anything in the child’s file including updated teachers reports, prior year assessments, the prior IEP, etc. Tr. 125.

Accordingly to the that was conducted in 2008, (D-6), J.W.’s overall functioning within the average range of intelligence. Tr. 126. The did, however, find that there were discrepancies between different aspects of his intelligence IQ. His verbal reasoning was high and his processing speed was in the borderline range. Working memory and nonverbal reasoning were in the average range. Tr. 126. On the academic assessment, there were significant delays in all areas with respect to reading, writing and mathematics. At the May 26, 2011 IEP meeting, an accommodation was added which was “questions read and directions read”. Tr. 129. This change was based on Ms. ’s input and teacher reports. Tr. 129, D- At the time of the May 26th CSE meeting, ’s classification was . Tr. 130; D-3.Ms indicated that this classification was made in the prior year based on his sensory integration disorder and food allergies. Tr. 130; D-3. The related services that were recommended were counseling and Occupational Therapy. Tr. 131. Ms. testified that the parents did not voice any disagreement in terms of classification however the teacher, Ms. felt that was the most appropriate placement. Tr. 131. Ms. testified that an ICT was considered and rejected because it was too large an environment for J.W. A class was considered but they felt that an extra person in the classroom for redirection and reinforcing was necessary. Therefore, the CSE recommended a 12:1:1 class. They also considered a District program but felt it was too restrictive considering he was of average intelligence and his academic abilities were only two years behind. Tr. 132. Ms. indicated at has two teachers and in the 12:1:1 he would have a para, which would be an extra adult in the room. Tr. 133-134. Ms. Mathieu testified that she believes that the 12:1:1 class would be the best educational environment for in the least restrictive environment and that . could confer educational benefit in this environment. Tr. 134.

On cross examination, Ms. indicated that an was not recommended for . in his May 26th IEP (D-3) despite the fact that recommends it. D-8; Tr. 135. In addition, preferential seating was not recommended on the IEP, however Ms. stated that “a multisensory approach to learning across the curriculum” could cover this. Tr. 136. Ms. also testified that the IEP does provide that . has to meet 55% of the fifth grade ELA standards and 60% of the math standards which would put . at the instructional level of the teachers estimation at the May 26th CSE meeting. Tr. 137-138. Ms. indicated that this came directly from and this was just a “minimal expectation” and she also indicated that they were taking into consideration his transition from to a public school. Tr. 140. Finally, she testified that the estimate did provide for some growth in math. Tr. 140. Ms. further testified that .’s mandated triennial review is in December 2011 based upon the Evaluation prepared by in December of 2008 and that was the reason no one asked for testing because “everyone was pretty much on the same page….” Tr.144; D-6

The next witness was . She has her Master’s degree in both Special Education and General Education. Tr. 148. She is currently employed at as a Special Education teacher in a self contained . Tr. 149. She is currently employed at and has been there for five years. Tr. 149. Her duties include providing instruction to students, planning, teaching, scaffolding lessons, communicating with parents, lesson planning and running clubs. Tr. 149. She testified that at the beginning of the year there were six students on her register and they are either classified as speech impaired or learning disabled. Tr.

151. She testified that she has students with behavioral difficulties that persistently interfere with instruction. Tr. 152. She helps students with this through prompting, task reinforcement, writing checklists, and redirecting. Tr. 152. Ms. testified that the reading levels in her class are . Tr. 152. In math the levels go grade. Tr. 152.

Ms. testified that if a student required academic intervention, has extended day, which is small group instruction for 37½ minutes geared towards helping students with specific data. Tr. 153. In addition, they also have period where students who need assistance are pulled out of a classroom by a teacher. Tr. 153. If a student has social/emotional issues, Ms. testified that they have a guidance counselor and a young men’s and young women’s group run by teachers in the school. Tr. 154.

Ms. testified that she became familiar with . as a result of this impartial hearing however she does not know him personally. Tr. 154. Ms. received .’s IEP and stated that in reading . needs practice in terms of fluency, punctuation, intonation and reading aloud. He is able to write simple sentences and his decoding skills are on a second/early third grade level. Tr. 155. She stated that he needs a lot of help with developing complex sentences. Tr. 156. The IEP also indicates that he has a hard time with writing and taking in information. Tr. 156; D-3. Ms. stated that she has students in her class on .’s level and some that are below. Tr. 159. She uses the program in reading and writing. Tr. 159.

With respect to interactions with peers, Ms. stated that the IEP indicated that he enjoys interacting with his peers, however, sometimes a conflict may arise or miscommunication but it can be resolved by a teacher. Tr. 157.

In terms of . ’s decoding issues, Ms. testified that there could be spoken instruction and decoding they could work with a group of no more than two children. Tr.

162. She stated that “In terms of word work, so we could work a lot on counting words and looking at no-nonsense words…he needs practice paying attention to punctuation and intonation…repeating maybe reading the same books more than once, sharing after the class.” Tr. 162. To address .’s weaknesses in reading comprehension, Ms. testified that she would do a lot of small group instruction, reading texts that are on his current reading level and scaffolding up at some point. Tr. 163. In her classroom, she testified that the children are required to read 30 minutes each day and reading response questions would be developed for . based on his reading. Tr. 163. In order to differentiate instruction, Ms. testified that she uses a lot of manipulatives like word magnets, candle sticks to form words, graphic organizers, and a lot of audio is used inside the classroom. Tr. 164. She records the stories she reads in class and has students listen to them on IPODs if they miss them. Tr. 164.

Ms. testified that she has a para in the classroom that does the enrichment part. Tr. 165. Accordingly, if a student masters something or they need continued practice on a skill, the para would work with them. Tr. 165. Ms. may work with that child on a one to one basis to see what they need. Tr. 165. Her para has a Bachelor’s and Master’s degree and is going for teacher certification. Tr. 165.

Ms. stated that there are seven students in her class and when she does small groups she divides them into three groups, a high, a medium and a low group. Tr. 166. The para may work with the high group, the middle group may be doing something interactive in order to reinforce something and she always takes the lower group. Tr.

166. In dividing the children into small groups she uses data from assessments, diagnostic tests, predictive assessments, etc. Tr. 167.

Ms. testified that they use the New York State standards for reading and the common core standards. Tr. 168. Ms. stated that she uses a multisensory approach to teaching (Tr. 167) and she uses a different approach depending on a particular child’s needs. Tr. 169. For math, they use Everyday Math and also use a book called Math Steps, which is a work book that gives students a lot of practice. Tr. 170. She also testified that they also use a lot of outside resources to align themselves with the learning goals and performance standards of the New York State standards and the core curriculum. Tr. 170. For writing, they use the Teacher’s College of Columbia Running Records. Tr. 170-171. They provide graphic organizers and story mapping for those that need differentiation. Tr. 172.

In all areas, math, writing, reading, attention and focus, Ms. said there are other students that manifest the same difficulties as . Tr. 172. She testified that three students have , however two are on medication so she doesn’t necessarily need to address their issues. Tr. 173. The third student requires redirection and prompting, the use of key words, different checklists, different rule bricks and different ways of letting him/her reach the teacher’s expectations. Tr. 173.

With respect to students in her class with difficulties, she has students with stuttering difficulties and she just gives them the time to talk and let them have the time to get ready to talk. Tr. 173.

In ELA, Ms. testified that she measures progress through the use of pre and post assessments, diagnostics, predictives, etc. Tr. 174. They use a QE program which involves the taking of predictive tests and then diagnostics. Tr. 174. Her students have the opportunity to interact with general education students in music once a week, gym and at lunch. Tr. 175.

In terms of related services, Ms. testified that they have a , therapists, two and also a resource room teacher. Tr. 176. If a child needs assistance with issues, they have a guidance counselor. Tr. 176. They collaborate with the related service providers formally and informally. Tr. 176. If a student had difficulty organizing his/her time, she would make a schedule for the student or a checklist. Tr. 176-177. On cross examination she testified that some students use a privacy shield and others use fidgets.

On redirect, Ms. indicated that the type of she has in her classroom are generally students who have a hard time paying attention. Tr. 185. She also testified that none of the students have behavior plans. Tr. 186. For , the therapist pulls students out of the class but may push in to work with a student. Tr. 185. In addition, if a child has speech impairment needs that need to be addressed on their IEP, Ms. will address these in the classroom. Tr. 185. With respect to , the therapist pulls the students out of the class and sometimes makes recommendations to Ms. . Tr. 186-187. The therapist collaborates with Ms. by giving her insight on what type of pencil to have the child use, what type of typing program, etc. Tr. 187.

The last witness for the District was Ms. . She has a Master’s Degree in Special Education and a building license for administration. Tr. 190-191. She is certified and is a placement officer. Tr. 191. Her job is to place students that are either in charter schools, not attending schools, for County cases, etc. She is only placing students that are in the regular public school except if they are turning five. Tr. 191. On August 10, 2011, she sent a final Notice of Recommendation to the parents of .. Tr. 194. The District received the return receipt back with a signature on August 15th. Tr. 196.

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 186, 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 CitySch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t 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] [citations 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, 20007 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. Dep’t 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 Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t 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).

The Parents allege that the District did not comply with the procedural requirements of the IDEA. The Parents allege that the CSE was improperly constituted, however, it was clear that there was a school psychologist and representative from the District, Ms. .’s special education teacher from , ; a general education teacher from the District, ; the Parent; and a Parent member.D-3; Tr. 122. Accordingly, the CSE consisted of all legally mandated members as required by Federal and State regulations. (see 34 CFR 300.321[a];^[8] NYCRR 200.3[a][1].

It is clear that the Parents and .’s teacher, were present and participated in the May 26th CSE meeting and the development of the IEP. D-3. In fact, Ms. testified that Ms. was an active participant at the meeting, as was .’s parent, and the teacher went through .’s academic levels, how he was progressing, his functioning and provided the CSE with what she felt would be her suggested goals and program recommendations. Tr. 122-123. Ms. also testified that everyone at the meeting had the opportunity to review J.W.’s file and all updated teacher reports, prior year assessments and prior IEP. Tr. 125. The May 26nd, 2011 IEP (D-3) that was developed was designed to address .’s needs and was based upon the information and reports presented at the CSE meeting.

The Parents allege that the goals “were immeasurable and inappropriate for the child.” IHO-I. An IEP must include a written statement of measureable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum and meet the student’s other educational needs related to his or her disability(see 20 U.S.C. §1414[d][1][A][i][11]; 34 C.F.R. §300.320[a][2][i]; check-ins as needed, movement breaks, teacher and provider modeling and counseling. Although preferential seating and an may be helpful the lack of these accommodations would not deny . a FAPE. The Parents also allege that the promotional criteria for the ELA and Math standards were not sufficient. I credit the testimony of Ms. which indicates that the promotional criteria was a minimal expectation suggested by Ms. , his teacher at , and took into account his transition from to a public school. Tr. 140.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE at its May 26th CSE meeting provided J.W. with FAPE in the LRE and that placement in a special class in a community school was appropriate and was designed to address .’s needs and provide him with educational benefit. Ms. provided testimony concerning how she would have addressed his academic and social emotional needs in her classroom. Tr. 153-172.

With respect to functional grouping, the IDEA contains no requirement that special education students be grouped in a particular manner, however, State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs(8 NYCRR 200.1[ww][3][i], 200.6[a][3]; see Walczak, 142 F. 3d at 133; Application of the Dep’t of Educ., Appeal No. 11-066; Application of a Student with a Disability, Appeal No. 09-082; Application of the Dep’t of Educ., 11-066; Application of a Student with a Disability, Appeal No. 09082; Application of the Dep’t of Educ., Appeal No. 08-095; Application of the Dep’t of Educ.; Appeal No. 08-018 ; Application of a Child with a Disability; Appeal No. 07-068; Application of a Child with a Disability, Appeal No. 05-102). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom (8 NYCRR 200.6[a][3][ii],[iii]).State regulations also require that a “district operating a special class wherein the range of achievements levels in reading and mathematics exceeds three years shall,…provide the [CSE] and the parents and teacher of students in such class a description of the range of achievements in reading and mathematics,…, in the class, by November 1st of each year” (8 NYCRR 200.6[g][7]) However, State regulations do not preclude a grouping of students in a classroom where a range of achievement levels in reading and math would exceed three years. (see Application of the Dep’t of Educ., Appeal No. 08-018; Application of the Bd. of Educ., Appeal No. 06-010; Application of a Child with a Disability, Appeal No. 01-073). Application of the Dep’t of Educ., Appeal No. 12-013.

Ms. testified that reading levels in her class go from and math levels go from . Tr. 152. She testified that she has students on .’s academic levels and also has students with similar needs and can address .’s needs. Tr. 159; Tr. 169; Tr. 173. I

It is clear that the District considered several programs before deciding on a 12:1:1 special class program in a community school. The CSE determined that an ICT class was too large an environment for . and a general education would not be appropriate at this time due to academic issues, sensory integration issues and regulatory difficulties. D-3; Tr. 129. They also considered a class but determined that . would benefit from an extra person in the class for redirection and reinforcement. Tr. 131. They also considered a District program but felt it was too restrictive considering he was of average intelligence and academic abilities were only two years behind. Tr. 132. In addition to providing him with extra support, the specialized class in a community school would provide him with opportunities to mainstream at lunch, at gym and in music class.

With respect to related services, the CSE provided , 1 times per week, 30 minutes each time; , 4 times per week for 30 minutes each time. It does not appear from the record that the Parents disputed these services.

For all of the foregoing reasons, I find that the District provided FAPE to . for the 2011-2012 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 1I-Appropriateness of Parental Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement of . In order to meet that burden, the Parents must show that offered an educational program designed to meet .’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 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 was an appropriate placement for . for the 2011-12 school year. The educational program at offers an educational program designed to meet .’s special education needs and to enable him to receive educational benefit. The testimony indicated that is a small structured environment with no more than 12 students in a class, a head teacher and an assistant teacher. Tr. 123. Ms. testified that they have an ongoing , and the . They also divide the students into smaller groups for reading and math of no more than five to seven students and they are grouped by ability. Tr. 122.

Due , he benefits from a small class size and teacher support. At , he is also given certain accommodations including a stand-up desk, a privacy shield, frequent movement breaks, fidgets, a and . Tr. 66-68. He is also provided with other accommodations including breaking down language into smaller chunks, consistent clarification of directions and material; specific guidelines for expectations, different modalities to show his understanding, organizational structures, use of a smart board and a preview of the day. Tr. 69.

Ms. testified that . has progressed in reading math, writing and social studies though they continue to see that he needs significant support. They have also seen an increase in his ability to self-monitor and self-regulate. Tr. 72. She believes that . will progress to a higher level next year at and feels that is an appropriate placement for . for the 2011-12 school year. Tr. 77. ’s father testified that is a wonderful program and it has provided J.W. with a home where he is learning and receiving academic benefit and appropriate supports. Tr. 217; Tr. 222. He testified further that . is doing well academically but still requires interventions with respect to his distractibility, however, feels that the interventions provided have been successful. Tr. 206. Ms. stated that she has known as a student since he started and believes that he is appropriately placed at and is receiving educational benefit. Tr. 32.

In addition, with respect to his related services, although he doesn’t have counseling, it is incorporated in his program and there is a guidance counselor and a social worker that can provide assistance with social/emotional issues if necessary. Tr.

176. He is receiving with the classroom teacher as needed. Tr. 187.

Therefore, in the event the District had not met its burden under Prong one, the Parents met their burden in proving the appropriateness of . for the 2011-12 school year. 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).

I find that the Parents participated in the May26th CSE meeting, however, they never contacted the school after receiving the FNR in order to set up an appointment to visit the recommended program. It is true that the school was not in session in August but no effort was made to see the program at any time after the start of the school year. In fact, the father testified that he hasn’t visited a public school program in years. Tr. 212. It is clear from the testimony that the contract was signed by the Parent in February 2011 (P-B) for the 2011-12 school year and the father testified a number of times that he would not have accepted a public school placement. Tr. 208; Tr. 212. He stated that the “programs that the city’s offering aren’t what offers…” Tr. 212.On redirect, when asked whether the Parent would consider a program if it was a s good as , the father indicated that he would consider it but they have gone through so much to find . a home and is working well. Tr. 222

Based upon their actions, in terms of equitable considerations, I find that the Parents were not able to cooperate with the District since they were not willing to consider any placement except and tuition reimbursement may have been denied on this basis.

Based upon the foregoing, I find that the District provided FAPE for the 2011-12 school year . Accordingly, the Parents request for tuition reimbursement, as well as provision of transportation and related services, for the 2011-12 school year is denied in its entirety.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that the Parents application for tuition reimbursement for for the 2011-12 school year, as well as provision of transportation and related services, is hereby denied. Dated: August 14, 2012

_______________________________

ELISE B. KESTENBAUM, ESQ.

Impartial Hearing Officer

EKB: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 5/17/12 Amended Impartial Hearing Request 2

B 2/7/11 School Contract 2

C undated Description 3

D 4/30/12 School Affidavit 1

E 2011-12 Student’s School Schedule 1

F 9/2011-11/2012 Student’s School Attendance 1

District Exhibits

No. Date Document Pages

1 5/17/12 Amended Impartial Hearing Request 2

2. 5/24/12 Due Process Response 4

3. 5/26/11 IEP 18

4. 8/9/11 FNR 1

5. 8/15/11 Return Receipt 1

6. 12/1/08 Report 4

7. 1/24/08 Evaluation 3

8. 2010/11 Mid-Year Progress Reports 25

9. 2/2/11 Notice of IEP Meeting 1

10. 4/25/11 Notice of IEP Meeting 1

Impartial Hearing Officer Exhibits

No. Date Document Pages I 3/22/12 Original Impartial Hearing Request 1

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Footnotes

[8] NYCRR 200.4[d][2][iii]). 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 committee (8NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i] [III]; 34 C.F.R. § 300.320[a][3]). I find that the annual goals contained in the May 26th IEP were sufficiently linked to the student’s educational needs as described in the present levels of performance, and reflected in the evaluative information available to the CSE during the meeting. Annual goals developed for the student addressed his identified needs, were sufficiently measurable; and included the evaluative criteria, evaluation procedures and schedules to be used to measure the child’s progress. The Parents allege that preferential seating and an were not recommended for . It is clear that and for this reason he is being provided with teacher and verbal prompts,