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: February 5, 2013

February 27, 2013

February 28, 2013

March 5, 2013

Actual Record Closed Date: May 1, 2013

Hearing Officer: Elise B. Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 5, 2013

Esq. Attorney for Parents — Student

Parents

CSE Representative — DOE

School Psychcologist — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 27, 2013

Esq. Attorney for Parents — Student

Parents

Occupational Therapist (via telephone) — Student

CSE Representative — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRAURY 28, 2013

Esq. Attorney for Parents — Student

Parents

Director, (via telephone) — Student

Teacher, (via telephone) — Student

Dr. Physical Therapist (via telephone) — Student

CSE Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 5, 2013

Esq. Attorney for Parents — Student

Parents

CSE Representative — 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”), through their attorney, from the law firm , L.L.P. by filing a Due Process Complaint dated November 15, 2012.

The Parents are alleging that their son, ., was denied a free and appropriate public education (“FAPE”) for the 2012-13 school year and are seeking tuition for his unilateral placement at ”) for said year. They are also seeking reimbursement for ’s receipt of Physical therapy (“PT”) and Occupational therapy (“OT”) over the summer of 2012. PA.

There were four days of hearings in this matter. Hearings were conducted on February 5, 27, 28 and March 5, 2013. Extensions were granted in this case making the final compliance date May 10, 2013. A list of Exhibits is attached as Exhibit A. Both the Parents and the District submitted exhibits.

BACKGROUND

This case involves a year old student. During the 2012-13 school year, attended where the Student was unilaterally placed by the Parents.

With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on February 6, 2012. Pursuant to the February 6th IEP, the following recommendations were made:

1. Special Class in a Community School, , for all subjects;

2. therapy, group service, three times per week, 30 minutes each time;

3. Physical therapy, , two times per week, 30 minutes each time; and

4. Occupational therapy, , two times per week, 30 minutes each time. P-C.

The District issued a Notice of Recommendation dated August 9, 2012. D-3. It stated that the offered school shall be a special class in a community school in Brooklyn. D-3. The Parents sent back the Final Notice of Recommendation dated August 19, 2013 with a note on it which said, “Dear Mr. I am going to be moving. Given my understanding of the DOE’s new reform to place children in their local zoned public school, I am requesting alternate placement. Please contact me for further details at (917) 763-6622. Sincerely, .” P-Q

The Parents entered into an enrollment contract for on February 4, 2012. P-M.

The Parents filed a Due Process Complaint on November 15, 2012. I was appointed as an Impartial Hearing Officer on November 15, 2012.

POSITION OF THE PARTIES

District’s Case

The District called two witnesses, Shirley and Kristin Railey, and placed three

(3) documents in evidence.D-1—D-3.

Ms. is a school psychologist that works at CSE 8. Tr. 28. She received a Masters degrees in elementary education and school psychology and is NYS certified as a general education teacher and a school psychologist. Tr. 28. Her responsibilities include assessing students, performing classroom observations, conducting social history updates, and developing IEPs and related goals, chairing IEP meetings and acting as a liaison with non-public schools. Tr. 29.

Ms. is familiar with the Student and attended ’s February 6, 2012 CSE meeting. Tr. 30. She stated that the Parents were in agreement with this meeting date. Tr. 30. The parties present at the meeting were: the Parents; Ms. the general education teacher; Ms. , the school psychologist and District representative; , parent member; and (also known as ), special education teacher from . Tr. 31; P-C. Ms. testified that Ms. gave them information from the School report as well as information related to the Student’s socialization, physical health, vitality, and related service information. Tr. 32; P-C. Ms. testified that the IEP was developed on a Smart Board screen so that everyone at the meeting could see it being developed. Tr. 33. In terms of Parent participation, Ms. said that there is a place on the new IEP for Parents’ comments or concerns and she noted several instances where Parents’ comments were included. Tr. 33. Specifically in the section on academic development, it included the Parents’ concerns about how small group size helps with redirection to task; social pragmatics; and personal organization in school. Tr. 33; P-C. In social development, it says that the Parent voiced concern regarding social pragmatic difficulties, including concerns, and noted difficulties internalizing directives and commands from adults. Tr. 34; P-C. In the physical development section, it says that the Parent voiced concerns regarding the continuation of PT and CT. Tr. 34.

With respect to the goals, Ms. testified that they were generated by eliciting correct levels of classroom functioning ’s teacher, and then they discussed the Student’s strengths and weaknesses and executive functioning skills, the need for additional supports and from that information, they drew up the goals. Tr. 35. For the 2011-2012 school year, the Student was in kindergarten. Tr. 35. Ms. described ’s academic skills as pre-emergent. Tr. 35. She stated that “he has some basic early kindergarten skills in place, but they are inconsistent…he also has some difficulty with motor control or motor fatigue which affects other things like graphomotor skills and other things important in the kindergarten classroom like learning to hold a scissor”, etc. Tr. 36. Ms. testified that they elicit the information for the goals at the meeting but create them afterwards. Tr. 38.

Ms. testified that the program recommendation that was made . was a class setting in a community school. Tr. 39. She stated that the Parents’ and teachers’ concern was that they . needed a very small group setting throughout the day. Tr. 40. In response to this, Ms. testified that they discussed the fact that the students break into smaller, differentiated instructional groups throughout the day similar ’s current school. Tr. 40. . was recommended for a ten month program. Tr. 41. Ms. does not recall the Parent having a specific objection to that. Tr. 41. She does, however, recall discussion of delivery of related services over a 12 month period. Tr. 41. She stated that they reviewed the PT report which indicated he had a significant need, yet, he was unilaterally placed and was not receiving any PT even though it was mandated on his IEP as a one to one service. Tr. 42. In connection with OT, this was also a significant need as well and was not meeting his full mandate. Tr. 42. Ms. stated that he has OT one time in a small group of three and one time as a push-in into the whole class along with the provider. She indicated that this is a very different service delivery than having the student one to one in a separate setting. Tr. 42. Ms. testified that although there were no providers at the meeting, the teacher, Ms. reviewed the information from related to OT and PT.

After the February 6th CSE meeting, there was further discussions regarding OT and PT for the summer. Tr. 44. Ms. said there was correspondence between Ms. and the mother, and with Ms. from her department and the mother, and the mother also contacted Miss . Tr. 44. In the correspondence, the mother was voicing concern over 12 month services. The mother indicated that she was submitting a new report from the OT provider, however, Ms. stated that it was not a report but a letter from the provider, Ms. , stating that . needed 12 month services, however, in this letter, there was no statistical evaluative information that was done, nor was there a baseline comparison to work done after a summer break that showed any type of inherent regression. Tr. 44; P-F. Ms. stated that she corresponded with the mother and told her that his information did not constitute sufficient new information to hold another IEP review meeting and that Ms. should submit a new evaluation report specifically addressing this and then a meeting could be held. Tr. 45. After this, Ms. did not receive any additional information regarding OT and/or PT summer services. Tr. 45.

On cross examination, Ms. stated that she sat at approximately 300 CSE meetings during the 2011-2012 school year. Tr. 47-48. She said she works mainly with the non-public schools. Tr. 48. .’s CSE meeting lasted approximately one hour. Tr. 49. One of ’s teachers participated by phone for the entire meeting. Tr. 49. Ms. testified that the teacher shared the information from school report. Tr. 50. In addition, the PT evaluation was available at the meeting. P-C; Tr. 50. As the at the meeting, she says she tries to make sure all participants are heard, reviews the information and then the team makes a recommendation. Tr. 50. They had or other standardized testing available at the meeting. Tr. 51. Ms. stated they had the draft IEP on the Smart Board and were typing things in as people were saying it. Tr. 52. She stated that they tried to include the concerns the Parents had. Tr. 53.

Ms. testified that at the time of the meeting they did not have the hard copy of the report, however, they would only hold the meeting “if , and the teachers, and the Parents [were] willing to come to the table, and so that is what we did”. Tr. 53. She said that the reports were delivered to the District en masse in mid February, but the teachers already had that information generated and would be referring to that on the phone for the meeting. Tr. 54. In essence, she stated that whatever teacher is on the phone , will present the information from the reading teacher, math teacher, speech therapist, occupational therapist, etc. Tr. 5. Ms. testified that she doesn’t recall the Parents requesting that the meeting be delayed but she does recall discussion regarding whether the mid-year report would be ready and that was in agreement to move forward. Tr.

55. She stated that they didn’t actually develop and draft the goals at the meeting and that she wrote the IEP. Tr. 56. She does not know when the IEP was finalized as a result of the procedure with SEISIS. Tr. 56. She indicated that the Final Notice of Recommendation cannot be sent to the Parent unless the IEP is finalized. Tr. 56. Ms. agreed that the Final Notice of Recommendation was dated August 9, 2012 and was approximately sent six months after the IEP was developed but before the school year began. Tr. 57. She said that the IEP would be in effect for the ten month school year from September 2013 through June, 2013. Tr. 58.

Ms. testified that on the first page of the IEP most of .’s academic skills were early kindergarten level skills as reported by the classroom teacher and the IEP was developed in the middle of his kindergarten year. Tr. 59; P-C. Ms. testified that the potential benchmark for was to attain beginning first grade level skills at the conclusion of his first grade year. Tr. 59. She said that she hoped that he would at least attain one year’s work in a year and a half but it’s only a prediction. She stated “If he has full implementation of his related services in place, and he’s in the small group setting with differentiated instruction through the school, one would hope that student would make good progress”. Tr. 61.

In the goals section of the February 2012 IEP, most goals indicated that he will be able to perform with greater independence. Tr. 63; p-c. Ms. said in order to measure a goal they include a variety of methodologies because it shouldn’t just be based on one type of performance standard. Tr. 64. Therefore, for the first goal, she listed teacher observations, class activities, follow-up homework, charted progress, teacher made materials and regular progress reports. Tr. 64. She said it is left open that way so that it can be made more specific by the individual teacher. Tr. 64.

Ms. testified on cross that the goals could not be reviewed by the Parents at the meeting because they get the strengths and weaknesses from the teacher at the meeting, and develop the goals based on that information. Tr. 65. The teacher was not able to review the projections that were put into the IEP after the fact. Tr. 66. She stated that does not give the CSE goals to use to help in the CSE process, nor do they related service providers, so they have to glean the goals from the information provided. Tr. 66.

Ms. testified that she anticipated that the program would also include small group instruction. Tr. 67. She said that although it is not noted on the IEP, “if one is familiar with a continuum of services, that is certainly a component that should be in place in every good classroom”. Tr. 67.

On cross examination, Ms. stated that there was a discussion at the February 2012 IEP meeting about having related services for a 12 month period, however the team did not agree to provide it. Tr. 67-68. She stated that on the IEP it states “full implementation of all mandated related services”, and that, “the fact that we made a 10 month recommendation states to [her] inherently that his is not an IEP for 12 month services”. Tr. 68. Ms. testified that . was not getting the full implementation of all mandated related services, but he should have been getting it. Tr. 69. She did not recall the Parent telling her that was receiving PT and additional OT outside of school. Tr. 69.

Ms. testified that the teacher indicated that . required a smaller group setting than Tr. 69. Ms. stated that they looked at an ICT class and a class and rejected them, but did not consider a more restrictive program for . Tr. 70. She testified that at the time of the meeting, he had emergent readiness skills in place that could be built upon, and an umbrella of related services to foster academic gains and that they would not automatically place a student like at his young age in a more restrictive program. Tr. 71. She said that despite the teacher and Parent’s recommendation for a smaller class ratio, the team did not feel it was necessary. Tr. 72. She stated that a referral to the CBST was not considered because, “To make a CBST deferment is to say that there is no other place for this student and at .’s tender age and grade, [she] is not prepared to say that.” Tr. 72

Ms. testified on cross that a series of e-mails and letters were exchanged regarding a request for 12 month related services after the February CSE meeting, and that a June letter to Ms. (P-F) and an e-mail to herself (P-K) specifically requested a new CSE review. Ms. stated that she did not prepare a prior written notice because she clearly responded to the Parent in her e-mails that she had received the letter and that it did not have sufficient statistical data to warrant another meeting. Tr. 76. She said that she would never have held another meeting based on Ms. s letter since it had no firm data in it. Tr. 76. Ms. indicated that no letter was ever sent to the Parent indicating that no additional meeting would take place. She stated that they met their obligations for the year by holding the annual review and making a recommendation. Tr. 77.

On redirect, Ms. stated that if .’s Parents and the school were not in agreement, the CSE would not have held the CSE meeting on February 6, 2012. Ms. reviewed goals one and two on the February 2012 IEP and indicated the area of need and weakness addressed. Tr. 81. She stated that the Parent never contacted her after the meeting with disagreements about the goals on the IEP. Tr. 82. Ms. stated that she was not aware of his group size at , but it may have been three or four children in reading and math and a whole group size of 12. Tr. 83. She testified that at the February CSE meeting, OT was recommended but there was no therapist at the meeting since they aren’t mandated members. Tr. 85. The OT goals that were developed were based on the information that was shared with the CSE and based on the actual reports. Tr. 86.

The next witness was . She has a Bachelors degree in elementary education and a Masters degree in general education and special education. Tr. 102-103. She also has a general education and special education license for grades K through 6. Tr. 103. She presently works at class as a special education teacher in a kindergarten class. Tr. 103. They teach the students the kindergarten curriculum, life skills, and socialization skills. Tr. 103-104. She is also involved with creating IEPs, and is responsible for keeping in touch with service providers as well as parents. Tr. 104. She is only familiar with based on the documents presented to her. Tr. 104. If attended the first day of the 2012-2013 school year, he probably would have been in her class and it would have been a bridge class. Tr. 105. It is not currently a bridge class because there are no graders in it presently. Tr. 015. There are four students in her class and four adults. Tr. 105. The reading levels of her students range from pre-emergent to a little past the beginning of first grade. Tr. 106. In math, her students range from a little below kindergarten to a first grade level. Tr. 106. She stated that the four adults are herself, a classroom paraprofessional, and two of the children have their own paraprofessionals. Tr. 106. The children with paraprofessionals and have crisis paraprofessionals and the other two have . Tr. 107; Tr. 109. The related services provided by . Tr. 108. Ms. said that in looking at L.A.’s IEP, his levels fall in the middle of her class, however, she does not know where his levels are presently. Tr. 108. When asked about reading comprehension goal, she said she could implement it in the classroom. Tr. 110.

On cross, Ms. testified that this is her first year as a special education teacher in the class; prior to that time, she was in an ICT class. Tr. 113. She also stated that prior to this school year, did not offer classes. Tr. 113. Ms. indicated that she presently has four kindergarten students in her class and they are all 5 years old. Tr. 114. The first of her autistic students is on a reading and math level of a first grader; the second autistic student is pre-emergent in reading and beginning kindergarten for math. Tr. 115-116. The first student is pre-emergent for reading and middle kindergarten for math and the second student is pre to early emergent for reading and beginning kindergarten for math. Tr. 117.

Ms. testified that both autistic students have crisis paraprofessionals, the first, a female, has a low frustration threshold when things don’t go the way she wants or is doing her work and makes a mistake. Tr. 117-118. The types of behavior she exhibits is tantrumming and flapping her arms. Tr.118. The second student, a male, requires a crisis paraprofessional because he may throw things, doesn’t work independently, and in the fall had bathroomming issues. Tr. 118. Ms. testified that both students are able to communicate but the female is more verbal than the male. Tr. 119. With respect to the two speech impaired students, they are both fully verbal, however, their articulation isn’t as clear, but they are able to communicate and be understood. Tr. 119-120. Ms. ’s class is the only class at . Tr. 122.

Ms. testified on cross that she did not know how . would fit into her class at this time. She stated that if he was in her class now they would do an assessment to see where he fits in. Tr. 124. She said that when she said he would fit into the middle of the class she was baseing it on his IEP because his IEP from February 2012 would coincide with where her children are right now. Tr. 124.

On redirect, Ms. said that when the female autistic child has behavioral difficulties, she will say she needs a break and she is given a break outside of the classroom, or she will listen to music with headphones. When the other student acts out the paraprofessional will remove him from the activity. Tr. 126. Ms. also said that some of her children were functioning on an early kindergarten level, or even higher, for math and reading comprehension at the beginning of the school year. Tr. 126. Parent’s Case The Parent called five (5) witnesses, Diana , Hannah Wiltshire, Kristin , Anna , and the Parent and placed nineteen (19) documents in evidence.

The first witness was . She has a Masters degree of Science and Occupational therapy. She became licensed in May 2010. Tr. 136. She has been working at a preschool and Sensory Freeway, a pediatric center for children with , . Tr. 137. She is an independent contractor and provides Occupational therapy. Tr. 137. Ms. testified that the students at the center are between five and fifteen and she works from 3:00 – 7:00, five days a week. Tr. 138.

She is familiar with because she provided OT during the summer of 2012 to him. Tr. 138. She said that . presented . Tr. 138; Tr. 139. Before she worked with him, she was aware that he had previously received therapy at the same agency. Tr. 139. The therapist said that in order to help with “they were running obstacle courses to work on his . We were doing animal looks, which is to improve . We were doing a lot of handwriting using a program called to improve his ”. Tr. 140. In addition, she did a standardized assessment with him in July called Bruininks Oseretsky Test of Motor Proficiency. She performed the , . Tr. 140. For and , he . He scored at an age equiva t of on and on , he scored a . Tr. 47. For and tracking activities, he scored . She has not seen any reports from regarding the OT he received there. Tr. 144.

Ms. ’s only previous interaction with was observing him in the gym while he was receiving PT. Tr. 144. Prior to her working with him, she was told that he was making very limited progress and that his sessions were designed to make sure he maintains the skills that he learned to limit regression. Tr. 144.

During the time Ms. worked with . she witnessed progress. She stated that he improved in visual spatial awareness so that he had an increased awareness for the lines, however, his progress was slow and limited and it varied from session to session. Tr.

145. She said that continual attendance was important to limit regression however, she did not witness any regression over the summer. Tr. 145. She stated that her concern about regression was that “children that show signs of variances during their sessions tend to regress when they don’t have continual services.” Tr. 145. Based on her experience as an Occupational therapist, she believed that . would have regressed had he not received OT during the 2012 summer. Tr. 146. This opinion is based on the way that attends, the way that he f during sessions and the difference from session to session. Tr. 146. She believes that the services she provided during the 1012 summer prevented him from regression. Tr. 146.

On cross examination, Ms. said that she assessed . to see exactly what he was doing and to know exactly what to focus on. Tr. 147. The assessment was not done on the first session; he was assessed after several sessions. Tr. 148. She did not know if he received continuous OT until she took over in July. Tr. 148. When started in July, she spoke to his supervisor who provided with OT services before, spoke to the Physical therapist, spoke to the Parents and read the IEP. Tr. 149. She also observed him in the sensory gym prior to beginning OT but wasn’t sure if he was receiving PT or OT during the observation. Tr. 150.

Ms. says she bases the number of OT sessions on his IEP mandate, however when questioned she wasn’t sure how often she saw him per week. Tr. 150. Ms. testified that she works at a preschool and provides OT in the afternoons, and has never worked in a school age program. Tr. 152. Before beginning OT with ., she discussed the Student’s school functioning with the Parents. Tr. 152. They spoke about the importance of letter formation, being able to copy off the board, being able to focus and visually attend. Tr. 153.

Ms. testified that she believed she performed OT for on the following dates: July 17, 18, 24, 25, 31, August 1, 7 and 8. Tr. 154. Based on her knowledge, she believes that the assessment she performed on . generated a report called the BOT-2 ASSIST. She also stated that this assessment has components that are used in physical therapy. Tr. 156.

Ms. wasn’t aware which IEP she reviewed, the 2011-12 IEP or the 2012-2013

IEP. Tr. 157. She also doesn’t have any idea what the mandates were because she doesn’t schedule the sessions, her supervision does. Tr. 158. Ms. did testify that she believed that the testing materials they use are the most recent updated versions of the materials. Tr. 159.

The next witness was . She has a Masters degree in general and Special education and a Masters degree in social work. She is licensed in both special education and social work. Tr. 166. She taught at an early childhood day care center, the , and for six years. Tr. 167. She then worked as a consultant in several schools and she had a private practice working with families, mostly with special needs children. Tr. 167. She then returned to as a social worker for two years and then became director at the elementary school. Tr. 168.

As director of the elementary school, she supervises the teachers, helps to develop and oversee the curriculum, works with parents, holds weekly faculty meetings, etc. Tr.

168. She described as a school for children . As a , they incorporate certain aspects of such as community, equality and peace. Tr. 169. There is no religious instruction at . Tr. 169. The classifications of the students includes children with , writing and reading disabilities, impaired. There are no children classified as . Tr. 169. The children have generally average to above average capability, and they come with some sort of disability. Tr. 170. There are 129 students in the school, and although the school is ungraded, the students’ grades are K through 5. Tr. 170. The students are grouped by age and grade level so ungraded usually means the classes are K-1 or 1-2, etc. Tr. 170. Students are grouped based on age, social relationships, relationship with teacher and to some degree, grade levels (i.e. academic levels in reading and math) although there will be a range of levels. Tr. 171. The average class size is 10 to 12 students and a head teacher and assistant teacher. Tr. 171. Head teachers have minimally a Masters degree in special education and most of the assistant teachers have a Masters degree or are working towards a Masters degree. Tr. 172. The teachers receive weekly supervision and are required to attend at least one faculty meeting a week. Tr. 172. There are also bimonthly team meetings where they meet with the supervisor and school psychologist. Tr. 172.

Ms. stated that does not follow a specific curriculum, however they look at both the common core and the independent school curriculum and develop a curriculum as appropriate with modifications. Tr. 172. The related services they offer at therapy and Occupational therapy. Tr. 173. In terms of social and emotional support, they have an internally developed social emotional curriculum that is incorporated both in explicit lessons and incorporated throughout the day. There is also a psychologist and social worker on staff. Tr. 173. Ms. Wiltshire stated that a child’s progress is measured by two progress reports a year. Tr. 173. They do not use standardized testing until the fourth grade. Tr. 174.

Ms. testified that she is familiar with . because she sees him on a daily basis. Tr.

174. For the 2012-13 school year, he is placed in the room and has two teachers, and . Tr. 314. Ms. has NYS permanent certification in special education since 2003 and Ms. has her initial certification since 2011 in early childhood education and early childhood education for children with disabilities, birth through sixth grade. Tr. 175. There are ten students in .’s classroom. He is in the group of ten for homeroom but in reading they cross group and he is with four students and in math, he is in a group of six students. Tr.

176. Ms. stated that these groups are with a single teacher. For reading and math, they look at the specific levels and skills of the child and their learning style and they group children of similar ability together. Tr. 177.

Ms. testified that the is an appropriate peer grouping for . She stated that it is based on her informal observations of him and “he is engaged, he is participating, and he’s having a good time, and he’s learning”. Tr. 178. She stated that the other students in the class have issues, developmental coordination disorder, graphomotor issues and sensory integration issues. Tr. 179. Based on the classifications and impairments of the other students, Ms. feels that he is well matched with students with similar disabilities who require similar accommodations and modifications. Tr. 180.

Ms. testified that she observed that . is making progress. He is progressing in his Orton-Gillingham group and he has also made improvements in terms of his morning meeting participation. Tr. 181. She stated that . is receiving . Tr. 181. She stated that he is mandated to receive PT but receives it outside of school. Tr. 181. . received therapy twice a week in a group of two and once a week with his entire class, and Occupational therapy, once a week in a group of two. Tr. 182.

When they are developing a program for a student at they look at the IEP and they incorporate it as appropriate. Tr. 184. They do not necessarily follow the mandates in the IEP but the Speech therapist and Occupational therapist consult with the classroom teachers on a regular basis and incorporate a lot of the work they do into the classroom so that . gets the benefit for an extended period rather than just for the sessions that he’s in. Tr. 187. Ms. believes that the overall program . is in is appropriate based upon her informal observations, his participation in his classroom, his level of comfort and the progress he is making. Tr. 185.

On cross examination, Ms. testified that is a 10 month school year program. She has never taught the student. Tr. 187. ’s math group teacher is and his reading group teacher is . Tr. 187. Ms. has a Masters degree in special education. Tr. 188. This reading group is ages 6 and 7 and his math group is ages 5 and 6. Tr. 188.His reading group is approaching mid first grade level. Tr. 189. His math group level is end of kindergarten. Tr. 189. . receives four hours of formal reading instruction a week. Tr.

190. He also receives one and a half hours of formal math instruction a week plus morning meeting which is very math based. Tr. 190.

Ms. testified that there are no students in .’s class on a behavioral plan and there is no school based behavioral plan. The range and grade level functioning of his 10:2 class goes from early kindergarten through mid-first grade. Tr. 193. In addition to the four hours of formal reading, there is also writer’s journal every day where they read the morning message and respond to it. Tr. 196. They also do reading in their social studies class. Tr. 197. Ms. also stated that in addition to .’s group, there is not another group that has exactly this age range but there is another class with similarly aged kids. Tr. 198.

The next witness was . She has a Bachelors degree in developmental psychology and education and a Masters degree in early childhood special education. Tr. 203. She holds a permanent certification in special education. She has worked as a special education teacher since 2000 and is presently a head teacher at . Tr. 204. Her responsibilities include planning the daily activities and curriculum in the classroom, supervising the assistant teacher, meeting with the supervisor weekly to discuss students, participating in CSE meetings and communicating with parents and service providers regarding the students. Tr. 204. Her class has two teachers, herself and her assistant and ten students. Tr. 205. . has been a student in her class for the 2011-12 and 2012-13 school years. Tr. 205.

Ms. stated that has language delays in his skills’ he has issues that impact his his ability to screen out environmental noise and movement; he has a high activity level and he has ; and he has . Tr. 205.

Ms. testified that throughout the day typically one every hour, or every thirty minutes, if needed. Tr. 206. They have him take a walk, deliver a message to a different part of the building or push a heavy box to get his body regulated. Tr. 206. These accommodations are not part of a formalized plan. Tr. 207. Ms. testified that because of the ratio in the classroom, they are able to support kids as needed. She also indicated that they are doing it for a number of students. Tr. 207. They also do a lot of refocusing and checking in as a result of his difficulty attending and one-to-one support to make sure that he understands the directions that are given. Tr. 207. They also use the FM system in the classroom which amplifies the teacher’s voice, which helps him hear the information and process it. Tr. 208. They also give him support in the area of fine motor and handwriting and have him use special writing paper from a computer program called Start write and he uses visual prompts or boxes or highlighter lines to put his letters in. Tr. 208. He requires consistent support when writing because he gets very frustrated and has a difficult time because of his fine motor delays. Tr. 208. The one-on-one support is the same for many children; it involves checking in and focusing the children. Tr. 209. Accordingly while one teacher is giving directions, the other teacher will go around the room and help support the students so everyone is on task and understands. Tr. 209.

. is not in a 10:2 class for his entire day. For reading group he is in a group of four children and one teacher; and for math he is in a group of six children with one teacher. Tr. 209. Ms. is his math teacher and Ms. is his English teacher. Tr. 210. Generally speaking Ms. stated that she believes the teachers are certified. Tr. 210.

With respect to reading and math, Ms. testified that the whole school is broken up into smaller groups for reading and math and she believes it’s helpful for kids with language based disabilities because they get more support. Tr. 210. With respect to the other subjects, she believes that the ratio is very manageable and allows them to support the children and give them peer models. Tr. 211.

Ms. testified that the supervisors decide how students will be grouped after they observe them in the admissions process and in her class there is a range of first graders and kindergartners. Tr. 211. She stated that . is a and he is at the end of the for a lot of his skills especially his reading, encoding and decoding skills. Tr. 212. His writing skills are more end of en and his math skills are and end . Tr. 212. She stated that he falls in the overall. Tr. 213. She said she had students at or beginning level in some areas and some children who are grade. Tr. 213.

Ms. testified that the reason the range of students are together in one class is for social and play skill reasons. Tr. 213. In the reading program, they use Orton-Gillingham and PAF which stands for . Tr. 215. In the class, they have covered vowels and words that can’t be sounded out. They also work on dictation and skywriting, and are learning about how to write a sentence including punctuation. In addition they do round robin reading activities, etc. Tr. 214. For reading he requires modifications with his encoding skills which includes special paper that has more space to form letters and visual prompts. Tr. 213. The teacher also needs to check in with him for focusing. Tr. 215. Ms. testified that he has made progress in his reading curriculum since he is now able to write his name, most of the upper and lower case letters of the alphabet, and he is able to decode many words and sentences, and has shown progress in his comprehension skills. Tr. 216. For writing they use a basic writing skills program. Tr. 216. They modify for . by giving him a pencil with a grip or a shorter pencil and the special paper and visual prompts. Tr. 217.

Ms. .’s math teacher he is with first graders; the other math group in his class has children with or skills. Tr. 217. She testified that he has made nice progress. He can write with some support numbers 1-30. He tends to do reversalsso he needs teacher support to self-correct. He also needs reminders of the rules and expectations, and checking in to make sure he has the concepts. Tr. 219. They do not use formal assessments with him. Tr. 210. Right now in his math class, they are at the end of kindergarten. Tr. 220.

Ms. testified that they have a weekly class for all of her students. Tr. 221. Across the classrooms, teachers use specific language so that as the students get older, they understand the concepts. They go over things like initiating conversations appropriately, playing with other children without being rough and resolving conflicts between peers. Tr. 221. With respect to . specifically, Ms. testified that he needs a lot of direct teaching from the teachers . Tr. 221. He can become over stimulated if there’s activity in the room and he . Tr. 221-222. He has difficulty so Ms. made a visual voice monitor that goes ). Tr. 222. He also needs a lot of support speaking to other children to initiate play and continuing the play. Tr. 222.

For related services, Ms. testified that . receives two times a week and occupational therapy one time a week. There is also a class with his whole class. Tr.

222. In the group class they practice skills such as active listening to follow multiple directions and they give them activities to . They also do activities, and organizational activities. Tr. 223. The four teachers collaborate on how they can best support the students and plan the curriculum based on their discussions. Tr. 223.

With the related service providers, they have consultation meetings a couple of times a month. All of the children in her class receive the same amount of OT and Speech therapy. Tr. 225. She is aware that he is not receiving PT in school, but he is receiving it outside. Tr. 225. In addition, he is not receiving the mandates on his IEP for Speech and OT. Tr. 225.

Either Ms. or her assistant, or one of the special teachers (gym, art or science) writes to each of the parents every Friday. Tr. 226. She also sends home curriculum letters a couple of times a month. She also e-mails when necessary. Tr. 226. There are also two teacher conferences per year.

Ms. testified that she thinks is appropriate for Tr. 226. She stated that “When we first started working with [ .]there were a lot of skill sets he could not do, and he can do those skills now such as writing his name, decoding CBC words…counting from 1 to 20, understanding the ca dar, the days of the week, things like that”. Tr. 227-228. She also believes that the amount of related services being provided is sufficient because she said she believes “he’s making progress in his ”. Tr. 227.

On cross examination, she stated that she was the teacher in attendance at L.A.’s last IEP meeting and she was his teacher last year. Tr. 227. In reading and math, the functional levels of the students in the class range from pre-k to mid-first grade. Tr. 228. The age range of the students are 5 to 6 years old. Tr. 229. Ms. stated that she is able to provide one-to-one instruction to . if he can’t focus, or if he has difficulty writing words or understanding directions by working with him in the hallway. Tr. 219. She testified that other children have focusing issues and they support them as best they can. Tr. 230. She also indicated that the majority of the students in her class have pragmatic language difficulties but they are able to provide modeling for each other. Tr. 230. In math, when a child isn’t progressing at the same rate as the others, Ms. said they can find other ways to give them extra time with the concepts they are having difficulty with. Tr. 232. Ms. testified that she is not familiar with the IQ’s of all of her students; she is not sure they all received that kind of testing. Tr. 233.

Ms. stated on cross that she is aware . has and that he is receiving outside services. She testified that last year he required support navigating the stairs but presently doesn’t need as much facilitation to support his gross motor skills. Tr. 234. Ms. has not spoken with his outside Physical therapist. Tr. 235.

Since is a school for children with disabilities, they do not have many opportunities to interact with typically developing peers but there are certain days that siblings are invited. Tr. 235.

Since Ms. taught in an integrated classroom, she believes that there are benefits to it depending on the child. Tr. 235. She said with students with issues, she believes the number of students in the ICT classroom can be over stimulating. Tr. 236. She stated that she believes that nine other students is appropriate for . since he gets reading and math in smaller groups and is making progress with the whole group. Tr. 236.

Ms. testified that all students at are receiving the same mandate for OT services and therefore, the mandate may not match each child’s IEP. Tr. 236-237.

When Ms. was asked if a class of four students, one teacher, one classroom paraprofessional, and two individual paraprofessionals would be appropriate . and, she testified that it is too restrictive because of the high adult ratio. Tr. 238. In addition, she stated that he wouldn’t have enough language and peer play models in this environment. Tr. 238.

The next witness was Dr. She is a Physical therapist and is a specialist in sensory integration and in strength and conditioning and is certified in them by New York State. Tr. 247. She worked in a pre-school and has worked in the Sensory Freeway Therapy services practice, a rehabilitation center for children since 2008. Tr. 248. She has six Physical therapists, then Occupational therapists, and four or five Speech therapists. Tr. 245.

Dr. is familiar with . since he has been her patient since early intervention. Tr.

249. She conducts assessments on an annual basis. Tr. 249. She testified that she created a report based on an assessment done on January 30, 2012. P-E. On the second page it indicates that . should receive PT three times a week for 45 minutes individual sessions on a 12 month basis. Tr. 250. She stated that 30 minutes a session isn’t sufficient to get him organized before starting to work with him on his gross motor activities. Tr. 251. She specifically said that “the 12 month mandate is because if there’s any missing time for him receiving services, [she] would anticipate regression of skill”. Tr. 251. Dr. indicated that if he misses one or two weeks for vacation or sickness, it takes time to get back to the previous level of functioning. Tr. 251. She said that she prepared the report for the CSE but was not aware if they reviewed it because she did not attend the meeting. Tr. 252. If she had attended, she indicated that she would have recommended 12 month services. Tr. 252.

Dr. stated that she provided PT services during the summer of 2012. Tr. 254. They worked on the goals that they had from the previous year which included coordination, body awareness and his negotiation of the environment safely. Tr. 254. She stated that he has made progress. He has improved his ability to navigate obstacles; he can but when there . He has also improved his endurance, and his ability to participate in a full session without taking a rest. Tr. 255. She anticipates that he would have regressed had he not received summer services. Tr. 255. She testified that if he missed a week, they would notice it. Tr. 255. She said “so, and generally, kids with his type of diagnosis, this is what we see. If they miss a summer, they usually need a substantial amount of time to get back to their previous level”. Tr. 255. She anticipated that if he did not have summer services, his regression would have been substantial and it would have taken a couple of months to make up the services. Tr. 257.

On cross examination, Dr was asked why she had indicated in her report that “[ .’s] lack of consistent impacted his progress in attaining higher gross motor abilities”. Tr. 257. She said her expectation was that she would see him three times a week during the year but she only saw him once a week for the 2011-12 school year. Tr. 258. This year she is seeing him twice a week for shorter sessions because he is also getting OT so it’s a half hour of PT and a half hour of OT. Tr. 258. She said that every year she speaks to an OT at school about . at the start of the year and they discuss what goals he has and what they want to accomplish. Tr. 259. She also thinks she may have spoken to the teacher or written something to her once. Tr. 260.

Dr. stated that she was aware of ’s specific difficulties in school as they pertain to PT. Tr. 260. Specifically they address going up and down stairs, his ability to participate in activities with his peers and keep up with them as a result of his coordination, etc. Tr. 260. She has never observed in his current setting but believes he has made progress although he still requires the services. Tr. 261.

Dr. said that there are benefits to students receiving PT in school but they can simulate certain things at the center like walking in a hallway. She also said that the school could only do it if they had the right equipment and the therapist had the appropriate training. Tr. 262.

Her goals for . regarding his school performance include navigation of his environment, participating in gym, etc. Tr. 262. In this regard, she works on attention, posture, strengthening, etc. She believes that if he is out for a week it could take a couple of weeks to get him back to his awareness and his ability to react so that we can get him to engage in activities that are . Tr. 263.

The last witness was the mother. She stated that is a bright child who has and has received services since . He has . He is very social and is very engaged with other children. Tr. 278. He received services , and then a SEIT, and then he was placed in

CPSE. Tr. 274.

In preparation for the 2012-13 school year, the Parent attended an IEP meeting on February 6, 2012. Tr. 274. The following people were present: .’s father, ; and a parent member. Tr. 275. At the time of the CSE meeting, attended . Tr. 275. At the start of the meeting, the teacher from was not on the line but she was subsequently called. Tr. 275. She testified that Ms. ( ) was on the phone for 25 to 30 minutes and the meeting was an hour. Tr. 276. The Parent testified that the District decided to contact her and when her part was concluded, she hung up. Tr. 276. The PT report was available at the meeting but the mid-year report was not. Tr. 277; P-E; P-D. The CSE did not have the report because hadn’t gotten them out yet. Tr. 278. The Parent indicated that she had expressed her concerns about the report no being available at the time of the meeting. Tr. 278. She knew it was a gthy 25 page comprehensive report and that it included all specialties .’s academic subjects, etc. and she wanted the District to have this information when formulating the IEP. Tr. 279. The District told the Parent not to worry, that they would get the report ultimately and the teacher will speak about it at the meeting. Tr. 279. She testified that the CSE did not offer to postpone or change the meeting. Tr. 279. She also said there were evaluations available at the meeting. Tr.

279. The Parent testified that she doesn’t think the or educational evaluation but the Parent had one done when was transitioning from early intervention services to CPSE. Tr. 280.

In general, at the February 6th CSE meeting, the Parent testified that they went through .’s reading, writing and math skills, his related services, and the need for them, and how he was doing in school and what kind of learner he was. Tr. 281. The teacher was on the phone for the academic part but only for part of the related service discussion. Tr. 281. The Parent stated that she expressed concern about the 12 month program and the fact that A. needed PT. Tr. 281. That is why she submitted the PT report. She also knows that Ms. discussed OT with the Board. Tr. 281. She doesn’t remember what the team members said about 12 month services. Tr. 282.

The Parent testified that they spoke about class size and his learning style. Tr.

283. She said that she and Ms. indicated that he required a small class environment. Tr. 283. Ms. was on the phone when the recommendation was made. Tr. 284. She doesn’t recall discussing the difference between a and a program. She also does not recall anyone suggesting a non-public school at the meeting. Tr. 285. The Parent stated that the goals were not shown to her during the February 6th meeting nor were they written at the IEP meeting. Tr. 285. She did not receive a copy of the IEP at the meeting. Tr. 285. After several months she called the District and requested a copy of it (in midApril). Tr. 287.

When the Parent received the IEP she was surprised at . not receiving 12 month services. Tr. 287. She was also surprised at the goals; she said she didn’t know how they were reached and she thought they were too low. Tr. 287. She called the District the day she received the IEP to ask about the 12 month services. Ms. advised her that since is a ten month program, she would only receive ten month services. Tr. 291. The Parent said she asked for an amended or supplemental meeting at that time. Tr. 290. She also sent an e-mail to Ms. on May 21, 2012 and forwarded her .’s progress report, PT report and OT report. Tr. 290; P-E. In this regard, she included a letter from Ms. ’s therapist. Ms. did not participate at the meeting and the Parent was concerned that the report from Occupational therapist was contained in the comprehensive report. Tr. 291. Therefore, she testified that no service providers were heard from at the meeting. Tr. 291. The Parent spoke on the phone to Ms. but did not receive an e-mail or written response from her. Tr. 291. In her conversation with Ms. , she asked about placement and was told she would receive her notice. She also stated that in terms of summer services since he is a student and it’s a 10 month school, she wouldn’t get summer services. Tr. 293. The Parent also testified that Ms. said that it’s a very high standard, a medical model for summer services. Tr. 293. The Parent was under the impression based on her conversation with Ms. that she would receive notification of an amended meeting and she never received it. Tr. 293-294. When the Parent received the e-mail from Ms. , giving her due process rights, she assumed that there was no communication between Ms. and Ms. . P-H. On June 20, 2012 the Parent received a response from Ms. requesting additional documentation which would indicate a documented regression for summer services. Tr. 297. Afterwards, she sent Ms. the OT report from the school. P-L. She never received an invitation to come to a CSE meeting after this. Tr. 299.

The Parent testified that was not receiving his full mandate of related services at . Tr. 295. . never received summer services from the school, instead the Parent paid out of pocket for these services. Tr. 299; P-F.

The Parent testified that she did not receive a placement from the District for until mid-August. Tr. 299; D-3. This placement was the same placement received for the 2011-12 school year, at , their local community school. Tr. 300. She said that the previous year she tried to contact the principal a few times but he never got back to her. Therefore, she never had a formal tour. Tr. 301. When she received the Final Notice of Recommendation for the 2012-13 school year, she wrote on the notice that she would be moving and requested an alternate placement based on the District’s new reform to place children in their local zoned public schools. Tr. 303. She sent this to Ms. a few days after receiving the Notice. Tr. 304. She also testified that based on conversations with other parents at , the school did not have a self-contained classroom. Tr. 302. She did not however, have knowledge of this based on conversations with the school. Tr. 303. The Parent never received any response from Ms. and then sent a letter through her attorney to the District requesting transportation and asserting their intention to place at . Tr. 305; P-B . They never received a response to this letter but they did receive transportation. Tr. 306. Initially, transportation was from our address but then it was changed. Tr. 306. The Parent reached out to Ms. after the start of school requesting a placement in the new district. Tr. 308. She said that the Parent would receive a placement recommendation in the mail and she never did. Tr. 308. Subsequent to the start of school, she heard that the program was in place at . Tr. 308. She heard this from another parent who had visited the program and who told her there were two children, one teacher, a teacher’s assistant and two paraprofessionals. Tr. 309.

For the 2012-13 school year, pursuant to a contract dated February 4, 2012. It was signed at this time because required it in order to secure place. Tr. 310; P-M. She testified that she hadn’t decided if she would send him to but they needed a back up plan. Tr. 309. She indicated that they would lose their down payment of $8000 if they found an alternate placement. Tr. 311.

The Parent testified that . has made progress at for the 2012-13 school year. He has progressed in writing, in letter and number formation. He learns well with the they use. They are aware of .’s related service needs and individualize things for him like movement breaks or using a visual for understanding. Tr. 311-312. He is reading a lot better and he can engage in dialogue with his friends and more sophisticated play. Tr.

312. He gets less frustrated and has more patience. Tr. 312. He like school and is engaged. Tr. 312.

The Parent testified that . does not because they don’t offer it. Tr. 313. They chose despite this because the mother said that in every other way it’s a learning environment that is conducive to how . learns and what his needs are. Tr. 313. He has no behavioral issues. Tr. 313. The Parent indicated that he tends to copy or mimic bad behaviors of other children and this doesn’t happen at . Tr. 314.

The Parent believes that the related services that is receiving outside of school plus the program at give him an appropriate program. Tr. 314. She also indicated that the program at is very restrictive for him and with four children and he will not have role models or the interaction he has at . Tr. 315.

On cross examination, the Parent said that . attended universal . Tr. 316.

The Parent stated that the teacher was not on the phone for the entire IEP meeting. Tr. 317. She also stated that the CSE team was typing the information on a screen during the meeting. Tr. 317. She stated that the teacher discussed ’s fine motor skills at the meeting and indicated that the teacher speaks with .’s service providers at . Tr. 318.

The Parent testified that she didn’t have a copy of the report (P-D) before the IEP meeting but she did have a parent-teacher conference in November. Tr. 319. The Parent stated that the information that the teacher gave at the February 2012 IEP meeting wasn’t as comprehensive as she would have liked it to be. Tr. 319. She said that she had the opportunity to ask the teacher questions but her concern was that “she wasn’t reading the 25 page report verbatim at the meeting”. Tr. 320.

During the summer of 2011, the Parent testified that . did not receive a 12 month program and he did not receive services paid by the District. Tr. 320. She indicated that she is sure she requested a 12 month program for the 2011-12 school year. Tr. 321. For the 2011-12 school year, the District settled with the Parent but did not pay for summer services. Tr. 321. The Parent testified that she requested summer services for OT and PT and indicated that . needed services all year round. She testified that they didn’t say yes or no and it wasn’t until she received the IEP that she saw it was a 10 month recommendation. Tr. 322. The Parent stated that the CSE team reviewed his current mandate of services but that she wasn’t sure if the team was aware that he was not receiving his full mandate of services. Tr. 322. She indicated that he is receiving OT once a week one-on-one and once a week in a group and on his IEP, one-on-one was three times a week. Tr. 323.P-C. The Parent stated that . was also receiving OT and PT outside of school during the 2011-12 school year and the District was not paying for it. Tr. 324. The Parent stated that Dr. in her report indicated that . would benefit from three sessions of 45 minutes per week. Tr. 325. The Parent indicated that the child was receiving PT services for either a half hour or an hour a week during the 2011-12 school year. Tr. 326. She stated that she was the liaison between OT in school and the PT outside of school. Tr. 326.

The Parent thought that .’s reading comprehension grade level at the present time was end of kindergarten. Tr. 327. Therefore, according to the reading comprehension goal on the IEP (P-C), . has not met the early first grade goal at this time. Tr. 328. At the time of the IEP meeting, the Parent testified that the teacher and she thought the early first grade goal would have been too low a goal for . to obtain. Tr. 328.

The Parent testified that she moved from the address that is indicated in the Final Notice of Recommendation (P-I) in September of 2012. When she sent back the Final Notice of Recommendation to Ms. Benanti indicating that she was moving she did not send a lease or information with a new address. Tr. 330. She said that at the time the letter was sent she was residing at . Tr. 330. She also indicated that although . is entitled to transportation, they live so close to that his mother takes him to school. Tr. 330.

The Parent testified that she has not seen him in a classroom where there were children who were . Tr. 331. She doesn’t think that has paraprofessionals in the classrooms. She thinks they have completed the payment for tuition at at this time. Tr. 332.

In the end of the year report for OT from Ms. , the Parent agreed that there was no mention of 12 month services. She did, however, say she had discussions with her about it. Tr. 333; P-L. Also in the first OT report (P-D) there is no mention for the need for 12 month services, however, the Parent testified that Ms. sent a letter to Ms. with respect to this. Tr. 334. The Parent could not recall whether Ms. , ’s classroom teacher discussed the need for 12 month OT services at the IEP meeting. Tr. 334.

The Parent testified that with respect to needs as it relates to school, he has , he has . He gets out on task. Tr. 334. He has been so has Parent testified that everyone helps him negotiate the stairs . Tr. 335. She said that in preschool he did not get PT, OT or Speech in school. Tr. 336.

The Parent indicated that she did not disagree with the related series and duration that were offered on his February 2012 IEP. Tr. 338. The Parent said that she can imagine that environment based on what she sees at home but you can’t choose a school based on whether they have PT. Tr. 339.

The Parent stated that she would have considered placement at a public school if she would have investigated. She stated that she did not visit for the 2012-13 school year, nor did she speak to the principal. Tr. 339. When the Parent received the Final Notice of Recommendation in August, she didn’t call because she knew they did not have the program in place and school wasn’t in sessions. Tr. 340. She stated that she found out the program was in place after the school year began when she spoke to another parent who was placed in .’s class. Tr. 341. The Parent said that she did not visit the school at that point because she had already moved. Tr. 341.

The Parent also testified that her son has never taken a significant break in his PT or OT services, only for vacations or . Tr. 341. She notices and when he misses a week but she isn’t sure how long it takes him to get readjusted and stay on task. She stated “that individual sessions have to be longer to get him to carry over what he’s learned from the last time”. Tr. 342.

On redirect, the Parent indicated that summer services for the summer of 2011 were covered by the CPSE and he was also receiving SEIT services. Tr. 343. She also indicated that at , . receives a half hour of OT and a half hour of PT a week . Tr. 145.

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 City Sch. 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 Child with 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. First, the Parents argue that the CSE review that took place on February 6th, 2012 “occurred too early to make sound educational sense to assess [L.A.’s] educational progress and make program recommendations” for the upcoming 2012-13 school year. Commonly annual and triennial reviews begin at this time of year and the CSE team is equipped to assess the needs of the students in developing a program for the following school year. In addition, there is no indication that the Parents objected to the scheduling of the CSE meeting for this purpose.

I will next address the Parents’ assertion that the February 6, 2012 CSE meeting was not properly constituted by not having an “appropriate” general education teacher at the meeting. Although it was clear based on ’s deficits that he would not be participating in the regular general education environment, a general education teacher form the District was part of the team.. Accordingly, a general education teacher was not required, however, there was a licensed general education teacher on the CSE team from the District, who participated at the CSE meeting. In her testimony, the Parent stated that the Student’s special education teacher from was not present for the entire duration of the meeting. This was not corrobated by any of the other witnesses including Ms. (tr. 49) and Ms. , the special education teacher present at the meeting. Tr. 227. In addition, this was not an issue that was raised in the due process complaint. P-1. Therefore, 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]).

The Parents also assert that the “CSE did not comply with the New York State Education Department guidelines governing teleconferencing. They allege that the reports, evaluation and other pertinent documents utilized by the review team were not provided to the members of the who were participating by teleconference. The Parents also allege that the Parents did not actively participate in the creation of the child’s IEP, specifically the goals. It is clear from the record that the was reviewed, as was the mid-year report. Tr. 50. If the teacher required the physical documents , she had access to SEISIS or could have requested them, however, the hearing record does not indicate that this was an issue. It is true that the report was not physically present at the meeting, however, Ms. testified that first, if the Parent requested that the meeting be postponed, it would have, and secondly, the results of the report were presented by Ms. to all team members in detail. The Parent testified that at the meeting they went through reading, writing and math skills, his related services, and the need for them, how he was doing in school and what kind of learned he was. Tr. 281. Both Ms. and the Parent indicated that the draft IEP was up on the Smartboard and Ms. was typing information into the IEP as it was reported. Specifically, with respect to the goals, Ms. testified that they were generated by eliciting current levels of classroom functioning from L.A.’s teacher regarding all of his subjects, discussing his strengths and weakness as reported by his teacher and the Parents, and the need for supports and accommodations, and from this information, they drew up the goals following the meeting. Tr. 36. Based upon a review of the IEP and the testimony, it is clear that the Parents comments and concerns were incorporated into the IEP document and appropriately discussed. Tr. 33-34. Based on the foregoing, the District has met its burden in showing that all parties actively and meaningfully participated in the meeting.

In addition to the procedural issues, substantively, a thorough review of the hearing record indicates that the CSE , at its February 6th IEP meeting with FAPE in the LRE and that a 10 month placement in a program in a mainstream school together with therapy, Occupational therapy and Physical therapy was appropriate and designed to address ’s needs. Ms. testified that most ’s academic skills were early kindergarten level skills and the potential benchmark . was to attain level skills at the conclusion of first grade. Tr. 59. Ms. testified that with his full implementation of related services in place, and a small group setting with differentiated instruction, he would be able to make progress. Tr. 61.Ms. stated that the team felt that at the time of the meeting, he had emergent readiness skills that could be built upon and an umbrella of related services to foster academic gains. Although the Parent and teacher thought he required a smaller class ratio, the team did not feel it was necessary. He is presently in a program with ten students for most subject areas and two teachers and would be in a program of The team considered and an ICT program and rejected them because they felt he needed the additional support. Tr. 69; P-C.

The Program that was recommended was a 10 month program with no related services for the summer of 2012. With respect to the 12 month services, Ms. stated that this was discussed at the meeting. She stated that the PT report was available at the meeting and it stated that ’s lack of services impacted his progress in attaining higher as he has made only partial progress towards his goals.” Although the physical therapist recommended services on a 12 month basis, it was to give the provider opportunity to continue to work with him and to ensure that he does not lose gained skills, however there was no indication that he would lose gained skills. In addition, Ms. spoke about the related service reports from the providers at and none discussed regression. Tr. 42. Based on this information, the team determined that he did not require 12 month related services for OT and PT. They were aware that his issues were significant and that he should have been receiving his full mandate of services at and he was not, nor was he receiving them in the ratio that was recommended. Also, there was no indication of regression at the meeting. Although, his needs were significant did not provide him with the services he required during the 2011-12 school year. Ms. stated that the Parent was aware that they had made the program recommendation for 10 month services at the meeting. Tr. 42. Subsequent to the meeting, the Parent asked for another meeting to change this recommendation. The District clearly indicated that a new meeting would be granted if the Parent had new information to indicate a meeting was warranted and none was presented. Tr. 76.The Parents witness, Ms. , who provided OT to L.A. over the summer of 2012 indicated that she did not witness any regression over the summer, but that based on her professional opinion, he could regress. Tr. 145.Even Dr. stated in her testimony, that generally, kids with this but no evidence was specifically provided that she with . while treating him. Tr. 255. Ms. testified that the related services available to the students art and that he would be able to receive them there.

The Parents also raised the issue that the Student would not have been grouped appropriately in the assigned class. 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][ii], 200.6[a][3],[h][3],[b][3]; see Walczak, 142 F.3d at 133[approving an IEP that placed a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed]; Application of a Student with a Disability, Appeal No. 09-082; 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). The Parents are requesting that I should determine if the functional grouping would have been appropriate had the District been required to implement the student’s IEP. The sufficiency of the district’s offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10[S.D.N.Y. March 15, 2011]). In this case the program recommendation was for a 12:1:1 class in a community school. The Final Notice of Recommendation is . Although, the sufficiency of the program is determined on the basis of the IEP, Ms. provided testimony that if . had enrolled in September it would have been a bridge Kindergarten/first grade class. She also indicated that some of her children were pre-emergent at the beginning of the year in reading and math and some were functioning on an early first grade level or even higher. Tr. 125. She also indicated that two of the students also were classified with a Speech and Language disability.

With respect to the Final Notice of Recommendation dated August 9, 2012, it should be noted that it was received before the start of the 2012-13 school year and gave appropriate notice to the Parent. D- 3. The Parent provided a copy of a response to the District dated August 19, 2012 which references the fact that the Parent may be moving, yet, did not provide any information regarding the address, or attaching a lease or a deed. P-Q. In fact, when Notice and Request for Transportation was sent by the attorney for the Parents on August 22, 2013, the Parents’ old address was listed and no mention was made of a change in address. P-B. With respect to this, I am taking the position that the Final Notice of Recommendation was for and the Parents were aware of his placement and in fact had provided testimony concerning the information they had obtained regarding class at the school. Finally, this was not an issue that was raised in the due process complaint.

For all of the foregoing reasons, I find that the District provided FAPE to L.A. for the 2012-2013 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 L.A.’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 ., in the event the District did not provide FAPE. In order to meet their burden, the Parents must show offered an educational program that enabled the child to receive educational benefit but not one that it furnishes every special service necessary to maximize their child’s potential. is a special education private school. was grouped in a class with two teachers and ten students and is in a group of four students in reading with one teacher, and six students in math with one teacher. Tr. 175. Ms. testified that his classes are appropriate for him and he is well matched with students with similar disabilities who require similar accommodations. Ms. testified that he has made progress in math and reading and is also making progress in his areas. Tr. 217; Tr. 227. Ms. also indicated that she has observed progress in his reading group and his morning meeting participation The reports also indicate that he is making academic progress and receiving benefit from his instruction. P-D. Although he is not receiving his full mandate of services at , both his , Ms. and his Occupational therapist, Ms. stated that he is benefiting from the therapy and the strategies that they are providing. P-D.

Therefore, in the event the District did not meet their burden under Prong one, the Parents met their burden in proving the appropriateness of .

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 their actions, in terms of equitable considerations, I find that the Parent cooperated with the District 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 2012-13 school year (Prong 1). Accordingly, the Parents request for tuition reimbursement for is denied in its entirety

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

The Parents application for reimbursement for tuition for for the 2012-13 school year is hereby denied. Dated: May 10, 2013

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

Parent Exhibits

No. Date Document Pages

A 11/15/2012 Request for Impartial Hearing 6

B 8/22/2012 Notice and Request for

Transportation 2

C 2/6/2012 IEP 15

D 1/2012 MMFS Mid-Year 2011-12 School

Report 24

E 1/30/2012 Physical Therapy Assessment 4

F 5/17/2012 Letter to Anne Parisi 1

G 5/21/2012 E-mail to 1

H 6/19/2012 E-mail to 1

I 6/20/2012 E-mail from 1

J 6/20/2012 E-mail to 1

K 7/17/2012 E-mail to 1

L 6/2012 MMFS End Year 2011-12 Report 24

M 2/4/2012 MMFS 2012-13 Enrollment

Contract 2

N undated MMFS Fell Room Schedule

2012-13 1

O 1/30/2013 20K 185 Fiscal Year 2013 Budget 3

P 9/25/2012 20K 185 Fiscal Year 2012 Budget 3

Q 8/19/2012 Response to Final Notice of

Recommendation 1

R 9/6/2012 E-mail to 1

S 2/14/2013 Invoices 3

District Exhibits

1. undated Classroom Observation 2

2. 6/20//2012 E-mail 2

3. 8/9/2012 Final Notice of Recommendation 1