New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: March 22, 2013

April 10, 2013

April 26, 2013

Actual Record Closed Date: June 29, 2013

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2013

Esq. Attorney for Parents — Student

Parents

Parents

Esq. Attorney for District — DOE

School Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 10, 2013

Esq Attorney for Parents — Student

Parents

Parents

Headmaster, — Student

(via telephone) — Student

Focus teacher, — Student

(via telephone) — Student

Esq. Attorney for District — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 26, 2013

Esq. Attorney for Parents — Student

Parents

Parents

Esq. Attorney for District — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought the Parents (“Parents”) on behalf of ., the student (“Student”), by filing a Due Process Complaint dated January 23, 2013 with the District and amended on March 11, 2013.

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 reimbursement for his unilateral placement at ”) for said year.

There were three days of hearings in this matter. Hearings were conducted on March 22, April 10, and April 26, 2013. Extensions of time were granted in this case making the final compliance date July 3, 2013. A list of Exhibits is attached as Exhibit

A. The District, the Parents, and the Impartial Hearing Officer all submitted exhibits.

BACKGROUND

This case involves an year old student who is classified as with diagnoses of ”). The student attends where he was unilaterally placed by his parents

With respect to the 2012-13 school year, an Individualized Education Program (“IEP”) was developed on June 19, 2012. Pursuant to the June 19th IEP, the following recommendations were made:

1. Integrated Co-teaching Services, Math, five times per week, one period per day

2. Integrated Co-teaching Services, ELA, five times per week, one period per day

3. Integrated Co-teaching Services, Social Studies, five times per week, one period per day

4. Integrated Co-teaching Services, Science, five times per week, one period per day

5. Speech-Language Therapy, , two times per week, 40 minutes each time

6. Occupational Therapy, , three times per week, 40 minutes each time

7. Counseling Services, , one time per week, 40 minutes each time

8. Counseling Services, , one time per week, 40 minutes each time

The District issued a Notice of Recommendation on August 9, 2012. It stated that the offered school shall be . The Parents sent a letter to the District on August 13, 2012 in response to the FNR and on August 22, 2012 regarding their unilateral placement of at and their request for funding if the District does not cure the procedural and substantive errors in the IEP and offer an appropriate school placement.

The Parents entered into a contract with for the 2012-13 school year on March 13 2012. The Parents filed a Due Process Complaint dated January 23, 2013 and amended on March 11, 2013. I was appointed as an Impartial Hearing Officer in the matter on January 23, 2013.

POSITION OF THE PARTIES

District’s Case

The District had one witness, , and placed eight documents in evidence. D-1—D8.

The witness for the District was Ms. . She is a school psychologist for Tr. 22. She has been a school psychologist for 21 years. She received a Master’s degree in education with an Advanced Certificate in school psychology and is state certified as a school psychologist. Tr. 22.

She is familiar with because she sat at his June 19, 2012 IEP meeting and observed him in 2012. Tr. 23. The parties that attended the CSE meeting were herself; the Parents; audiologist; ’s focus teacher from and Ms , special education teacher, general education teacher and District representative. Tr. 23. They recommended an ICT class for .’s academic subjects with related services of , occupational therapy and counseling services. Tr. 24. He was recommended for because he has delays in receptive and expressive language. Tr. 24. He was recommended for OT because he has difficulty with organizational skills and time management skills. Tr. 25. He was also recommended for counseling to help develop and improve social and interaction skills. Tr. 25. Ms. stated that no one disagreed with the related service recommendations. The ICT recommendation was based on the fall progress report from . (P-E), the standardized testing from dated June 24, 2011, (D-M), and the evaluation dated December 21, 20101 (P-L). Tr. 25. They also based their decision on the information presented by the Parent and Ms. , the focus teacher at the June 19th meeting. Tr. 25-26. They did not receive updates of the fall report prior to or at the meeting, however, Ms. provided an extensive oral report at the meeting. Tr. 26.

Ms. described as a bright boy with superior verbal reasoning and comprehension skills, average nonverbal reasoning skills and weaknesses in verbal and reading fluency and a slow processing speed requiring extra time. Tr. 27. He is diagnosed with . Tr. 27. With respect to the ICT recommendation, Ms. stated that the Parents said that the classes were far too big for . because of his significant attentional issues. Tr. 28. The team addressed this concern by stating that since he is functioning in reading at or above grade level and in math approaching grade level and above grade level in math problem solving, he should continue with a general education curriculum, which he would not receive in a special education class. Tr. 28-29. The team felt a class of 30 students would be appropriate for . since there were two teachers and no more than 12 students with IEPs that would be in the class. Tr. 29. Ms. testified that the standardized test scores from supported this recommendation. Tr. 30; D-3. She stated that his reading fluency and writing were areas of need and were discussed at the meeting. Tr. 32. She stated that his areas of need could be addressed through his management needs of extended time to complete classwork, tests, etc. Tr. 32. His math skills were variable with in math problem solving and in numerical operations. Tr. 33. His math fluency is also weak and he requires additional time. Tr. 33. The functional levels for reading at a were obtained by Ms. ’s oral report at the meeting. Tr. 34. With respect to math, Ms. indicated at the meeting that his math computation was at a mid level and his problem solving at an level, so they put him at a level overall. Tr. 34. She stated that the IEP reflects that has . It specifically states that “his , at about level and that he is , but yet he generally comprehends the . In terms of math, on the IEP, …we wrote that he required a calculator to complete some of the more advanced examples.” Tr. 33.

When making a placement recommendation, Ms. stated that the team considered an ICT class as the LRE so that he would be “exposed to general education, a college preparatory sequence of courses and also exposed to…typically developing peers”. Tr.

37. He would receive seven sessions a week of related services on a pull-out basis. Tr. 37-38. They felt that the pull-outs would not impact his ability to make progress in an ICT class because they though the extra support would help him perform in his class. Tr. 38.

Ms. testified that the team drafted goals by looking at his test results and by listening during the meeting to what the school and the family reported were his current areas of need. Tr. 39. They did no draft the goals at the meeting but discussed his deficits and stated that they would write goals to address each area of deficit. Tr. 39. When they drafted the goals, they expected that they would be implemented in a community school setting. Tr. 40. Some of the goals recommended a multisensory approach because this approach is helpful in teaching students with slow processing, issues with verbal fluency and receptive language. Tr. 41.

Ms. testified that the team addressed ’s health and physical needs at the CSE meeting. Tr. 42. She testified that “he has been diagnosed . He for the attention and difficulties in impulse control. He, in 2010, had a …” As a result, , however, he has regained the use of most of it. As a as a result of the stroke, he his unable to . Tr.

42. He also favors to not include contact sports. Tr. 42. No physical management needs or adaptive physical education was suggested. Tr. 44.

The team recommended assistive technology. The FM unit was recommended for attention and the computer because of and . Tr. 40. The team recommended dictation software but they did not specifically recommend the Dragon Naturally Speaking software. Tr. 46-47. A transition plan was also recommended on the IEP. Tr. 48.

Ms. testified that an ICT classroom with related services would allow . to make progress academically because “he is a . He has got very…strong verbal comprehension and strong . He is on grade level in reading decoding, above grade level in…reading comprehension, again also in math he was on grade level or above in math problem solving. He is a hard worker…very resilient…he wants to go to college…and we thought the ICT class, where he is getting…general education curriculum and exposure to typically developing peers, would be the…least restrictive environment and most appropriate educational environment for him. Tr. 50-51.

Ms. testified that the team was aware that he was previously in an ICT class and that the Parents said it was far too large for him and he wasn’t able to deal with the distractions. She stated that the team took this into consideration but since he was in an ICT class in elementary school, they felt that due to the intervening maturation and development, the ICT class would be appropriate for him. Tr. 52.

On cross, Ms. testified that she had been a special education teacher in the DOE briefly but ICT classes did not exist at that time. She testified that the Parents first saw the goals when they received a copy of the IEP, after the CSE meeting. Tr. 56. Ms. indicated that she wasn’t aware that when A.S. was in an ICT class, he had a paraprofessional. Tr. 57. She stated that the CSE meeting took place at and that everyone was at the meeting. Tr. 58. Ms. testified that Ms. did not express disagreement with the placement. Tr. 59. She stated that the goals were not drafted until after the CSE meeting. Tr. 59. She stated that although . was recommended for ICT classes for math, ELA, social studies and science, it is possible that he would not be in an ICT class for electives. Tr. 60. Ms. wasn’t sure if required to take a language and there was no discussion of whether the Student was entitled to an exemption. Tr. 61.She testified that there would be times during the day where would not have the support of both a general education teacher and a special education teacher. Tr. 61.

Ms. testified that Ms. and worked with the Student individually, once a day, to help him in whatever areas were areas of need for him. Tr. 62. She also stated that they relied on Ms. s input when drafting ’s IEP. Tr. 62. She testified that the report dated December 21, 2010 recommended a placement in a small, supportive special education class in a small therapeutic school. Tr. 64; D-4. It also states that placement in a large classroom would likely lead to regression. Tr. 65; D-4. Ms. stated that the Parents concern with the ICT class was that the class was too large given his attentional issues. Tr. 65.

Ms. stated that the team was aware of .’s physical needs and put them on the IEP. She stated that a computer was recommended and an integration. Tr. 66. She stated that she didn’t have medical information regarding his need for adaptive physical education (APE) and that APE was not recommended for A.S. Tr. 67.

Ms. stated that on the standardized test report, A.S. received a grade equivalent of 4.4 on the Gray Oral Reading Test. Tr. 72. She stated that the ICT program would address this deficit through management needs to give him extra time to complete his assignments. Tr. 73. She indicated that his reading fluency, reading accuracy and WIAT results indicate he is slow at reading and slow at processing. Tr. 73. Ms. stated that “he would be given individual support by the special education teacher in the ICT class and extra time to address these needs.” Tr. 73.

Ms. testified that the only goal for reading was the oral fluency goal since that was his major deficit. Tr. 79. She stated that in addition to the ICT class, they considered a 15:1 special class in a community school. Tr. 81. She said that the team did not recommend the Dragon Naturally Speaking software because we don’t specify brands, just dictation software. Tr. 83. Parents’ Case The Parents called three witnesses, , and the mother and placed thirteen (13 documents in evidence. P-A—P-M.

The first witness for the Parent was . He has a Master’s degree in learning disabilities and is New York State certified in special education. Tr. 95. He is the head of Winston Prep and has held the position for . Prior to that he was the assistant head of the school for nine years and before that he was a special education teacher with the Board of Education. Tr. 96. At the Board of Education he was a teacher in a and class. At , Mr. everything from admissions to developing educational goals to then supporting both the students and the teachers. Tr. 98. He is constantly working with the teachers and staff in professional development and in observing teachers and students in the classroom. Tr. 99.

At there are 197 students ranging from grade 5 through 12. Tr. 99. The students are grouped according to their learning style. Tr. 99. For example, is grouped with other students who have . He stated that “rather than them delivering a curriculum that is content specific, we are able to develop a curriculum that is very skill based.” Tr. 100. For a student with , it’s about making the connections with the social pragmatics and scaffolding the information. Tr. 100.Therefore, in addition to teaching an engaging curriculum, Mr. stated “it is about these specific skills with the purpose for them to be able to navigate a non-fiction textbook and write a paper as much as it is to understand the information, as much as it is to memorize the information in a content-specific class.” Tr. 101. Mr. testified that there are no more than three grades in a class. In classes, they are mostly but there is one since they are grouped according to learning style not grade. Tr. 101.

In the school, there are students with learning disabilities, those diagnosed with Asperger’s, and others on the autistic spectrum, those with difficulty with comprehension, processing, social pragmatics, executive functioning difficulties and self-regulation issues. Tr. 102. He said that the purpose of is to facilitate the independence of all students and make them invested learners. There is not one method that is followed; they find out what the best practices are and make sure the teachers are trained to understand them and find those that are best for the students. Tr. 103. Their grading policy is based on progress, performance, participation and commitment. Tr. 103. A report card goes out four times a year and they have a diagnostic report that they write and progress reports that go out three times a year. Tr. 104. They utilize a software program called First Class and each student has a folder in it. Tr. 105. The focus teacher monitors this and keeps track of the student’s progress. Tr. 105. Every April they administer the WIAT so they can quantify the student’s skills and see what is working and what is not, in addition to the anecdotal information. Tr. 105. As a result regrouping of the students is done to place them in appropriate groups for their skill levels. Tr. 106. In order to teach the students different curriculums each year, the entire school follows one four year sequence (i.e. next year they are doing earth science and American history through World War II). Tr. 107. Depending on the disability, they are going to be taught differently. Tr. 107. Winston Prep uses the core curriculum as a background but do not cover everything because their goal is to build skills. Tr. 109.

Mr. stated that . is bright but his processing is very slow so they spend a lot of time scaffolding and breaking down information and adapting techniques to help him master the material. Tr. 110. There are usually ten to twelve students in a class and one teacher. Tr. 112. Also, each student in the school receives one-to-one instruction every day with their focus teacher. Tr. 112.

A day at consists of forty-five minutes of Focus, history and literature, two periods of writing and an hour of science and math and a special (art, physical education or music). Tr. 113. Although the students are in literature, history and science, they are grouped differently for math due to their diverse fundamental skills. Tr. 113-114.

With respect to technology, every classroom has either a Smart Board, a projector or a television, and all content teachers have an iPad. They have class sets of iPads and laptops. Tr. 114. They are careful with the way they are using technology so that technology does not replace the skills they are teaching. Tr. 115. A.S. uses a computer in his classroom.

Ninety percent of students go on to college and the other 10% are in transitional programs. Tr. 116. They also have a transition program for those that are not yet ready for college or who are going into a certificate program. Tr. 117. The Focus teachers work with the freshman and sophomore students to help build up a portfolio for college and the students take the PSAT in the fall of their junior year. The deans help plan the students’ programs and their dean, parents and the director of the college transition program talk about what’s next after . Tr. 118.

When a family is interested in , they attend an open house. Then they submit a or a and teacher recommendations. They also complete the admissions packet and meet with a director of admissions and the committee assesses whether the student is appropriate for . Tr. 120. They invite the student for a visit, do in-house testing to close gaps and help paint a better picture of the student and they have the student visit a class and hold an interview. Tr. 120. Then the admissions team meets to decide whether they are able to meet a particular student’s needs. Tr. 121. does not request and IEP as part of the admissions process. Tr. 121. Although all students have had psychoeducational evaluations, not all students have a specific diagnosis, but all of the students have struggled in school. Tr. 121.

since sixth grade. Mr. speaks to their teachers regularly and meets with them every Wednesday. Tr. 123. Even without Mr. the teachers have ongoing conversations about each student’s progress on a daily basis. Focus is an individualized program, where each student has their own curriculum depending on his needs. Tr. 124. Winston Prep does not require that the teachers at have certifications. They have “an intelligent, diverse, passionate group of people who are learning specialists, speech and language pathologists, social workers, former elementary school teachers”, etc. “who are passionate about education and want to continue learning about our kids and why they struggle”. Tr.

124. The tuition for the 2012-13 school year is $51, 250. Mr. testified that Parents signed his tuition contract on March 13, 2012. P-I.

In the contract, it provides for a $5000 deposit and that deposit is not refundable. Tr. 128. Mr. testified that he believed that the Parents made the deposit and have continued to make payments towards tuition. Tr. 129. If the Parents received an appropriate public school placement, Mr. said he would refund the June payment but keep the deposit. Tr. 129.

Mr. testified that they do not have related services because “it’s built into how we do what we do”. He stated that in reviewing ’s goals, his expressive and receptive language goals are found as part of the goals and also as part of all the subject teachers’ goals. Tr. 130. If counseling is necessary, it is provided for the student, however it was determined that it wasn’t necessary as an ongoing service for ., but the support is available if necessary. Tr. 131.

Mr. testified that the goals on the IEP generally are goals the student is working on. Tr. 132. The receptive language goal, however is too generalized and broad and needs to reflect .’s specific needs. Tr. 134; D-4. There is a social skills component built into the curriculum and into each classroom. He said specifically with respect to . “he needs time to respond appropriately to what his teacher and what his peers are saying. He needs an understanding environment where not only the teacher but the other kids in the classroom also understand why it’s taking a long time.”. Tr. 135. Mr. stated that in order to deal with his fine motor skills and his visual and motor coordination and sensory skills, it is part of what they are teaching in the classroom. He said that they do not have a specific occupational therapist on staff because that would require him to pull-out when he has a push-in program. Tr. 137.

Mr. stated that organization is a huge goal for the Student and all of his teachers are working on it. Tr. 138. Also attentional skills are a significant issue for . and require constant attention including the breaking down of routines. Tr. 139. He testified that when . first started there was a great deal of scaffolding but a lot has been removed in order for him to be able to work independently. Tr. 139. They also work on reducing impulsivity and self-regulation in every classroom. Tr. 140. Mr. stated that on their trip to the history teacher worked a great deal on ignoring the distractions, keeping on topic and participating where and when he needs to. Tr. 141.

On cross examination, Mr. stated that he can recall being in .’s class two times this semester. Tr. 143. There are 12 students in the class including . Tr. 143. He said that . is in 11th grade and he anticipates that he will graduate next year. Tr. 147. does not work off of the District’s IEP, the team at creates their own. Tr. 148. All of the goals for . are classwide with the exception of the goals for the . Tr. 145. None of the students at take regents. Tr. 149. is accredited by the New York State Association of Independent Schools, so they issue the same diploma as all independent schools. Tr.

150. Mr. was aware that . took the PSATs and would take the SATs in May. Tr. 150. On Wednesday, there is a shortened day where all one hour classes are 45 minutes and all 45 minute classes are 30 minutes to allow for teacher conferencing in the afternoons. Tr. 152.

A.S.’s teachers include: , the Student’s literature teacher who is working on a Master’s Degree in English but is not certified; , who has a undergraduate degree in history and is certified; and , his science teacher who is not certified and graduated from Annapolis. Tr. 152. Mr. testified that on a formal basis, the dean meets weekly with all of ’s teachers and he meets monthly with them. Tr. 156. Mr. testified that the juniors went on an experiential trip . This was part of tuition but parents paid for the student’s airfare. Tr. 157.

The do not work on science or history goals but work on academic problem solving goals. Tr. 159. He testified that he does not . is getting financial assistance. Mr. said that the concept of refunding tuition is specifically stated in this year’s contract but not last year’s. Tr. 160.

Mr. testified that the expressive and receptive language goals that A.S. is working on can be addressed by a learning specialist. Tr. 161. No one that is working with the Student is a speech therapist. Ms. is a reading specialist. Tr. 162. Mr. testified that the teachers that is working with are experts in receptive and expressive language regardless of their certification. Tr. 163.

Mr. said that . has fine motor issues as a result of a stroke he had two years ago. Tr. 163. He said that he knows had occupational therapy in the past but he does not know if he is currently receiving it. Although . has met with a counselor, he does not have counseling on a consistent basis because it was determined that he does not need it. Tr. 164. Some students at do receive counseling, but it is as needed and not on a regular basis all year. Tr. 165.

Because , he is in a group with kids whose needs are more like his than a traditional physical education class, however, he is to have an adaptive class. Tr. 147.

The next witness was . She has a Master’s degree in reading and a doctorate in English education. She is certified in reading in New York State. She also has training in the diagnosis of learning disabilities from Long Island Jewish Hospital. Tr. 175. She is currently employed at as a Focus teacher and has been there for five or six years. Tr.

173. Prior to this, she worked as the assistant director of a learning disabilities program at Marymount Manhattan College. Tr. 175. As a Focus teacher she helps to build skills in the areas of each student’s major difficulties. Tr. 176. She meets with students on a daily basis, one-on-one, for 45 minutes . Tr. 177. She also communicates with the content area teachers on line and in person. She also will observe the various classrooms, or push-in if necessary. Tr. 176.

Ms. stated that she is familiar with . because he is one of her Focus students and has been for two years. Tr. 179. She described . as very bright with an processing speed; it was reported in the . Tr. 180. Therefore, although he has a , he cannot access it at a normal rate, and as a result, reading, writing and even . Tr. 180. He also is very tangential in his speech, although this is inconsistent. Tr. 181.

Ms. stated that to address his extremely slow reading, he uses audio books to help him read at a quicker pace. Tr. 181. Another issue was writing because he had word finding difficulties as well as graphomotor weaknesses. Therefore, he has been using Dragon Dictate which gives him the opportunity to increase his speed from that of a slug to a turtle. Tr. 182. Ms. testified that he is much more productive using the software than he was before. Tr. 182. He can now write an essay but the consistency of the writing may still be a problem. Tr. 183. When he is writing an essay, graphic organizers are helpful and in the Focus program she models her though process and the organization and then asks him to fill in certain gaps. Tr. 184. She is targeting written organization and efficient reading. She uses different strategies to help him including making an effort to pay special attention to the main idea of each topic sentence of each paragraph and not try to get all the detailed information at once. Tr. 185. Another strategy is to recognize patterns of writing and that tends to make his reading more efficient. Tr. 185. These strategies make him faster but not fast. Tr. 186. Another issue is his attentional difficulties which compound the slow processing difficulties. Tr. 187. She testified that he has gotten a better handle on this and can determine for himself when he’s zoning out and he has experimented with how he can concentrate and schedules breaks to help himself. Tr. 188.

Ms. testified that she was the person responsible for preparing the Report for . D-4. In creating this report, she reviewed his Report (P-L), his profile, and all of his performance on his spring testing. P-M; Tr. 188. She tried to incorporate where he was in his skills at that time, which skills improved and which skills needed improvement. Tr. 188. The goals on the Fall Progress Report (P-E) were developed after reviewing the foregoing information. Tr. 189. Ms. stated that they are doing more than the goals indicate. Besides roots and prefixes, they are doing straight vocabulary development because there were a lot of words in his reading that didn’t coincide with the prefixes he was studying. Tr. 190. Ms. stated that he is making progress in this area. Tr. 190. With respect to written expressions, she added a research paper component. Tr. 191. Although there is redundancy embedded into the program between the Student’s classes and Focus, a lot of what she does is not being done in his regular classes. Tr. 191. Ms. also developed academic problem solving goals. She stated that he is improving in his ability to hand in work on time and also in his ability to get less stressed about it. Tr.

192. He also has improved his organizational skills. She communicates what she is doing with his content teachers and they communicate with her as well. Tr. 193. Ms. . to work at a faster, more efficient pace and stay on task. Tr. 194. His resistance comes up in unrelated discussions, cracking a joke, etc. Tr. 199.

Ms. has discussed .’s writing with both his literature teachers and history teacher. She stated that last year he wasn’t writing essays and this year he is writing essays but needs to develop his points better. All of this is affected by the time issue and his patience level. Tr. 196. She testified that he is . Tr. 196. She said that although his , they are using strategies to offset it like audio books, , and the organization of essays prior to writing them. Tr. 197.

Ms. stated that he is with students that are similar in terms of the tests that are given however even within the classes, there is individualization in testing. Tr. 198. During midterms and finals, requires an . Sometimes more than double time to complete his tests. She stated that at times, they shorten his tests but mostly they try to keep him up to pace with his classmates. Tr. 198. She anticipates that he will need a reduced load in college. Tr. 199.

Ms. testified that the dean provides a group file to .’s teachers which contain clinical information. Tr. 199. She also stated that she communicates with the teachers but is grouped with students with similar profiles and “there is sort of a metaorganization that’s in place for the teachers [so] they are aware of the class that they’re teaching and how they have to structure it”. Tr. 199-200. In biology, . is able to keep up and is presently receiving . Tr. 199. He needs more work with analysis and making inferences. Ms. stated that the goals in each area encompass what she is doing in her Focus class. Tr. 201.

Ms. Bonomo indicated that as a result of Apserger’s, there are elements of his social interactions that need work. They are embedded in the service curriculum and come up in group work in class. He has difficulty with group work, however, he learned to work cooperatively and he showed improvement. Ms. works on his conversational skills and gives him cues when he is wandering off task. She stated that he is still doing it but has shown improvement since he wants his conversations to be relevant. Tr. 204. She also indicated that he gets a lot of feedback from his teachers about tangential conversation and is aware of it and tries to change it. Tr. 205.

Ms. testified that she participated in CSE meeting on June 19, 2012. Tr. 207. She stated that she provided feedback about his functioning, his goal functioning and his academic levels in each area. She spoke about and his . She also spoke about his need . Tr. 209. She did not participate in the development of goals on his IEP, nor did she see the goals drafted at the IEP meeting. Tr. 209. She stated that some of the information on the Academic Achievement, Performance and Learning Characteristics as well as Social Development sections of his IEP were taken from her report. Tr. 212.She did not see a draft of this document at the meeting, however testified after questioning that she probably participated in person rather than by phone. Tr. 214. She testified that the goal regarding oral reading and fluency was not suggested by her and is not something that is going to build anything for A.S. Tr. 215; D-1. The goals dealing with writing are very generic. Tr. 216. When an ICT class was recommended at the meeting, she raised objections. Tr. 218. She stated that he would not be able to keep up with the pace of a classroom and socially he needed a very small environment in order to be able to navigate. Tr. 1218. She testified that the Parents indicated had tried an ICT class and . was not successful in it. Tr. 218. She did not believe that they considered any other programs.

Ms. testified that . is making progress in all of his cognitive skill areas and that he is appropriately placed at . Tr. 220. She stated that “He seems to be very comfortable here. He’s not socially uncomfortable and I think he’s able to keep up. And it’s quite a bit of effort…more effort than most of the students in his class because of his slow processing speed. He spends a lot of time on homework. I think he has gotten more efficient. He’s learned to recognize when he drifts but he’s still quite slow.” Tr. 220-

221. Ms. felt that he is benefitting from his class size. She said there are 12 kids and he is still highly distractible even with his medication. Tr. 221. It takes . longer to pack up his stuff and move from class to class so she gives him a five minute heads up before the period is over. Tr. 222.

On cross examination, Ms. stated that he could function on grade level in reading with extended time, however, could not sustain that level on a lengthy assignment. Based on Ms. s conversation with the math teacher, , also functions on a tenth grade level in math Ms. testified that math computation was at a level. She indicated that his areas of weakness in reading are reading fluency and processing speed and his ability to sustain concentration on longer, lengthy reading. Tr. 225. She testified that his processing speed is neurologically based and she can’t change it but she can give him technologies to make him more efficient. Tr. 226. His processing speed also affects his speaking and sometimes it takes him time to get a sentence out. Tr. 227. Ms. testified that a lot of his attentional issues have to do with time management and she uses a timer so he can review how much work he gets done in a given time period. Tr. 227-228. She does not work on goals addressing reading fluency because they are a reflection of his dysfluency in speech. Tr. 228. She believes that his speech difficulties are neurologically based and the Parents indicated that after his stroke his speech was even slower and his retrieval difficulties were more pronounced. Tr. 229. She is not aware of whether he is receiving speech outside of school, but he is not receiving it in school. Tr. 229. Ms. stated that she is aware that . wants to go to college. Tr. 232. She stated that there is a program at that helps students in their junior and senior year through the college application process. Tr. 233.

Ms. testified that the service curriculum addresses social deficits and that, in addition to the , there are several other trips during the year that the whole school participates in. Tr. 234. Other than the week long , the other trips are one day trips. Tr. 234.

Ms. testified that the section of the IEP entitled Social Development is reflective of what the Parents said at the meeting. D-1; Tr. 235. She stated that he gets along with his classmates but he hasn’t really made a friend outside of school. Tr. 235. He is accepted at school by the group for his intelligence and knowledge but doesn’t seek out social connections. Last year, he felt he didn’t have time for connections after school because of the stress associated with getting his homework done. Tr. 235. This year he is more relaxed and more on top of things and has joined the movie club after school. Tr.

236. His social goals can be found in the group profile posted for the content teachers and addresses the social needs of .’s class as a whole. Tr. 236. She testified that there is also some individualization of goals in the body of the content teachers’ reports. Tr. 237. She also stated that her goals are very individualized. Tr. 237.

In math, Ms. testified that his math reasoning is grade level but his calculations are several grade levels below and he can use a calculator. Tr. 238. At the end of the WIAT testing, it states that speed and accuracy effect fluency. Tr. 240; P-H.

The next witness was the Parent. . is a twin of a . He turned 18 on May 4th and is presently attending . Tr. 249. He is classified . Tr. 249. At the age of two to three, he started and was diagnosed and Asperger’s. The came at age five to six, the at age six. Tr. 251. He was at and then in class at with eight kids, one teacher and two paraprofessionals. Tr. 251. While at , he had a SEIT for three year old pre-kindergarten, four year old pre-kindergarten and kindergarten. Tr. 252. He also received speech therapy. Tr. 252. After three years, he was doing well and mainstreaming so they moved him into the CTT program at . Tr. 253. The program at was changing and was going to be less focused on the needs of . Tr. 253.

When he moved , he was diagnosed with and then he missed the remainder of the year as a . Tr. 253. He was supposed , however, the Parent stated that during the time he was there he never got all of the services. He then and in he needed a lot more where he wasn’t already strong. Tr. 254. His educationally in that his processing speed dropped. Tr. 255. In addition, as a , he lost the use of his Although he has basically recovered from the stroke, there are still residual effects. Tr. 256.

He was at for three years, two for fourth grade and one for fifth grade. During that time, he had an RSA for OT but did not receive an , even though one was requested. Tr. 257. There were 22 or 23 students in his ICT class and a general education and special education teacher and maybe a paraprofessional or two for individual children. Tr. 258. She stated that he had difficulty attending in the classroom and keeping organized and it was difficult for the teachers to help the children who were not acting out. Tr. 258.

For middle school, the Parents had the Student evaluated by Dr. . He was placed at in a large school with no supports . The Parent testified that she felt he was not learning any more in the ICT class so they unilaterally placed him at Tr. 260.

The Parent stated that had been at . Tr. 260. He is presently in eleventh grade. The CSE meeting for the 2012-13 school year was held in June. Tr. 261. The Parent sent in the most recent from 2010 (P-L) and whatever progress reports they had, but they hadn’t yet finished the school year so the final report card and school report were not submitted. Tr. 262. The (P-L) was in the possession of the CSE but it was not discussed at the meeting. Tr. 262. At the meeting, the Parent indicated that she didn’t agree with the placement and she thought that he needed a smaller special education school with a low teacher ratio and multisensory integrated approach as set forth on the evaluation. Tr. 262-263. The Parent stated that they only had a self-contained classroom and an ICT class to offer so it was her opinion that they didn’t have the appropriate program for A.S. Tr. 262. The Parent stated that the CSE felt that the special selfcontained class was too restrictive since he is bright and the kids in the special class have emotional issues and the class is not as academic as needs. In order to get to the academics, they needed to go to the ICT class, which is much larger and a lot less supportive in terms of addressing individual issues. Tr. 263.

The Parent testified that the CSE did not develop goals at the meeting. She said when she received them they were complex, but very general, and not a lot different than they seemed to have been for years. Tr. 264.

One of the parties that was present at the meeting was Susan Kavanaugh, who is a speech and hearing specialist because has an FM unit due to his high end hearing loss from chemo. Tr. 265. They Parent also testified that no one at the meeting identified themselves as a general education teacher. Tr. 265.

At the meeting, the committee said that since . was bright, they might mainstream him for certain classes. Tr. 266. In terms of modifications to the curriculum, they said the related services he would get would be pull-out and he would miss whatever class he was to have for that purpose. Tr. 267. Her understanding was that he would be pulledout for counseling, group and individual speech and OT. She felt that this was problematic since he would miss academic work. In addition nothing was set up for him to deal with or . Tr. 267.

The Parent testified that at the meeting they said they would do an assistive technology evaluation, but they didn’t end up doing it. Tr. 271. The CSE also talked about transitioning to college, however no transition goals were developed at the meeting.

The Parent testified they received a placement recommendation around August 11th. D-5. When she received the FNR, she called Ms. and advised her they wanted to see the school and sent another letter dated August 13, 2012 . Tr. 275; D-6. They did not receive a response from the District and unilaterally placed . Tr. 275. They also sent another letter on August 22, 2012 notifying the Board that they were placing . in . Tr. 276; P-B. The Parent also testified that she signed a tuition contract with in March of 2012 in order to reserve the Student a space at the school. Tr. 276-277; P-I.

She testified that she didn’t pay the deposit for Winston Prep until July because she was trying to see what the Board would offer them. Tr. 277. She stated that she would have considered a public school placement had an appropriate placement been made available. Tr. 278. She indicated that had been a success and when she was offered it originally she already had signed a contract with a private school but forfeited place. Tr. 278.

The Parent testified that . is making progress. He is doing well in his academic subjects and is making friends. He feels that when he has a problem, the school and the Focus teacher are there to help him solve it. Tr. 278. He is doing and English. He when he . His writing is never where it ought to be due to his . He has disparate testing results with some . Tr. 277.

He is in a class with 10-12 kids and he is in most subjects with them. Tr. 287. He also receives the Focus program. She testified that the purpose of the program “is to be able to take an overview of his academic subjects and deal with any specific weaknesses or problems he is having, as well as doing additional work in writing or vocabulary to deal with some of the issues he may be having”. Tr. 281. The Focus teacher also coordinates with the other teachers and sends e-mails and calls the Parents regularly. Tr.

282. The Parent testified that Ms. has communicated to her that the Student is making progress. She said that “she feels that he is making progress in writing, that the read-back of the books and the Dragon Naturally Speaking have really helped him to be able to get more of what’s in his head on paper in a way that’s not so cumbersome. Tr. 282. Even though he has graphomotor issues, his physical writing has improved ’s philosophy is that you have to write. Tr. 283.

The Parent attributes ’s progress to his small classroom with a lot of individual attention. The level of distraction is lower; the teacher ratio is higher. There is a lot of continuity in the school and the staff works together and reinforces the things he has difficulty with across the board. The Focus program is helpful because even in a class of 10-12, he gets additional individualized attention and he has the use of his FM unit to help him hear and avoid distractions. Tr. 285.

The Parent testified that he doesn’t get related services as a pull-out but they are integrated into the curriculum. They do speech or having to do with a presentation and they provided him with a counselor during his difficulties after his stroke. She doesn’t feel the OT is necessary due to his use of assistive technology. Tr. 287.

On cross, the Parent testified that he has never been in a general education environment except for mainstreaming. Tr. 288. The Parent expressed her concern that the Student would not be able to cope well in a ICT class because of the size and teacher ratio. Tr. 288. She had concerns as to whether he could handle a general education curriculum because it would depend on how it was taught and what kind of supports he was getting. Tr. 289. In terms of getting along with general educations peers, although he gets along with people, he is very socially awkward. Tr. 289. The Parent believes it would be hard for him to be in a place where people didn’t understand his shortcomings and it would further isolate him. Tr. 290.

At , the Parent indicated that the teacher would adjust assignments in the classroom in history to make them more challenging or give him additional test questions, etc. Tr. 291. She stated that . does not have a separate curriculum. tries to put students in groups that are functionally compatible. Tr. 292.

The Parent testified that when she told the CSE the classroom would not have enough teacher support for ., they never suggested a paraprofessional. Tr. 293. The CSE told the Parent that the reason the related services needed to be done by pull-out was because that was how it was done there. Tr. 294.

The Parent indicated that he had had OT and PT after the stroke and they cleared him after a year. Tr. 284. She stated that there are things that just stayed IEP from year to year. Tr. 284. She testified that his graphomotor issues have improved. She said he can fill out a form but he can’t write fast enough to take notes in class. Tr. 295. In terms of typing, he doesn’t use his and although they worked on that, he types better than he writes, but his him. Tr. 296. The Parents felt that much he was going to write and they had to supplement with technology. Tr. 296. A has a laptop that he uses in school but it is not the District’s laptop. He also uses dictation software and the FM unit and audio books. Tr. 299.

The Parent anticipates that the Student will graduate on time. They are looking at small schools that have small classrooms and learning support programs. Tr. 300. He took the PSAT and got a with accommodations.

The Parent testified that her husband went and looked at the recommended ICT program in October. The school told them not to come the first two weeks in September and then her mother passed away so they came in October. Tr. 305.

The Parent testified that math was always his weakest subject before he came to but he got ‘A’s’ in geometry and algebra. Although his Focus teacher is not helping him with math,, the Parent testified that he may be getting it another way. Tr. 307. The Parent also testified that she thinks . needs support to address his social issues and this can be social skill integrated into a curriculum. She also indicated that he sees his medicating psychiatrist. Tr. 308.

The Parent testified that he has received the same related services on his IEP for years and there hasn’t been a lot of discussion at the CSE meetings about them. Tr. 308. In terms of speech, he is receiving an FM unit and in terms of making conversation, they are working with him in each class to make sure that he is speaking appropriately, he’s speaking on topic and that he’s not too loud. They also oversee this during recreational activities. Tr. 309.

FINDINGS

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

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

Issue 1-Appropriateness of District Program

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

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

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

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

The Parents claim that the IEP developed on June 19th, 2012 is procedurally and substantively flawed. First, the Parents contend that the CSE did not include a general education teacher at the CSE meeting. It is true that a general education teacher is a mandatory member of the review team if the child is, or may be participating in the regular education environment (20 U.S.C. 1414[d][1][B][ii]; see 34 CFR300.344[a][2]; 8 NYCRR 200.3[a][1][ii]), however, the District indicated through its witness, Alice , that Ms. Carol Schecter was at the meeting as a general education teacher, special education teacher and District representative since she had dual certification. Therefore, there was no procedural violation in this regard.

The Parents also claim that there was no Parent member at the meeting and there is no indication that the Parents waived their right to have the parent member present nor is there an indication that the parent member was ever invited. Although not required under the IDEA(20 U.S.C. 1414[d]d[1][B]; see 34 CFR 300.44), New York law requires the presence of an additional parent member on the committee that formulates a student’s IEP (Educ. Law 4402 [1][b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]; see R.R. and D.R. v. Scarsdale Union Free Sch. Dist., 2009 WL 1360980, at *8[S.D.N.Y. May 15, 2009]; Bd. of Educ. v. R.R., 2006 WL 1441375, at 85 [S,D,N.Y. May 24, 2006]; Bd. of Educ. v. Mills, 2005 WL 1618765, at 85[S.D.N.Y. July 11, 2005]; Application of the Dep’t of Educ., Appeal No. 09-024; Application of the Dep’t of Educ., Appeal No. 08-105; Application of the Dep’t of Educ., Appeal No. 07-120; Application of a Child with a Disability, Appeal No. 07-060; Application of the Bd. of Educ., Appeal No. 05-058). New York law provides the membership of a CSE shall include an additional parent member of a student with a disability residing in the school district of a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting(Educ. Law 4402[1][b][1][a][viii]; 8 NYCRR 200.3[a][1][viii]). Parent have the right to decline, in writing, the participation of the additional parent member at any meeting of the CSE (8 NYCRR 200.5[c][2][v]). However an additional parent member is not a required member of a subcommittee on special education. (see Educ. Law 4402[1][d]; 8 NYCRR 200.3[c][2]).

Although it is clear that no parent member attended the June 19th CSE meeting and no waiver was provided, I am not persuaded that the lack of a Parent member was a procedural error that impeded the student’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or 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]; E.H., 2008 WL 3930028 , at *7; Matrejek, 471 Supp. 2d at 419).The hearing record indicates that the Parent had an opportunity to participate at the June 19th CSE meeting and the hearing record also reflects that the Parents have familiarity with the IEP process and the lack of a parent member was not responsible for, or the cause of, any particular defect in the IEP.

Substantively, however, I find that the District did not recommend an appropriate IEP and the recommended ICT program did not adequately meet the students special education needs and that these deficiencies require a finding that the District failed to offer the Student FAPE. The hearing record indicates that the student exhibits significant difficulties and has significant needs and the gravity of educational, social-emotional, and health and physical needs are not accurately reflected in the IEP and program recommendations. I credit the testimony of Ms. , .’s focus teacher that indicates that his processing speed is in the first percentile and significantly impedes his ability to read, write and even express himself at a normal rate. Tr. 180. Ms. indicated that by using Dragon Dictate, he can increase his speed from a “slug to a turtle”, which is truly not significant. She also said that the strategies she uses to help with his writing and reading, like the use of a graphic organizer or audio books, make his processing faster but by no means normal. Tr. 183-185.As a result of his processing speed, he requires an enormous amount of time to write essays, do classroom assignments, homework and take tests. Tr. 198; Tr. 220; Tr. 235. Both Ms. and Mr. testified that his attentional issues, time management issues and distractibility are significant issues that impact his school work and performance and he needs constant attention to this, scaffolding , breaking down of tasks, etc. Tr. 139; Tr.221.Ms. clearly expressed her objections to the ICT class at the CSE meeting due to the fact that he would not be able to keep up with the pace of the classroom academically and socially he needed a small environment in order to be able to navigate. Tr. 218. Mr. was clear that he needs time to be able to respond appropriately to what his teachers and his peers are saying and that he needs an understanding environment in order to fit in due to his social awkwardness, his tangential and off topic conversations, his slow responsiveness, etc. Dr. in the Report (P-L) clearly stated that “ . is clearly benefitting from the intensive special education supports that he is currently receiving. As such he requires continued placement in a small, supportive special education class in a small therapeutic school. Any less restrictive environment would not only interfere with his ability to make appropriate progress, but would likely lead to regression.” P-l.

The District, through the testimony of Ms. , kept referring to the fact that was a bright boy, and indicated that based on his test scores, he should be placed in a program where he can access the general education curriculum and that his deficiencies in processing speed, reading fluency, writing, would be dealt with by providing him with extra time. Tr. 32. She also emphasized that since he wanted to go to college, he required a pre-college curriculum. Although evidence was provided that received a grade equivalent of 4.4 on the Gray Oral Reading Test, Ms. stated that the ICT would address this deficit through management needs to give him extra time to complete his assignment. Tr. 73. At the same time, despite his need for extra time to complete classroom work, tests, etc. and to process information, the IEP provided be pulled out from his classes seven periods a week for related services. Despite the fact that his attentional issues were significant, in a class with 12 students and the use of an FM unit and , she did not provide testimony as to how . would focus in a class of 25-30 students and stay on task and keep up given his significant processing and other delays. In addition to the foregoing, ’s significant physical and health needs were not adequately addressed and considered in the IEP, nor were any goals drafted to deal with his issues and how they affect him academically and socially. The lack of adaptive physical education on the IEP is an example of their failure to consider his needs.

Based on the foregoing, I find that the hearing record does not contain information that supports the IEPs recommendation of the proposed ICT class given significant academic, attentional, social and physical needs and the placement is not reasonably calculated to allow the Student to receive academic benefit. In addition, when considering the least restrictive environment, one must consider whether the child’s needs could be met and in this case ’s needs could not be met in either the ICT class or in the class that was considered by the CSE Accordingly, I find that the District has failed to offer FAPE to A.S. for the 2012-13 school year.

For all of the foregoing reasons, I find that the District did not provide FAPE for A,S, for the 2012-13 school year. Hence it is necessary to consider Prongs 2 and 3.

Issue 11-Appropriateness of Parental Placement

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

The Parents have met their burden in showing that was an appropriate placement Testimony has been provided to indicate that is a small independent school for students with learning disabilities , those diagnosed , those on the , and others with difficulties with comprehension, social pragmatics, processing, executive functioning and self regulation. Tr. 102. also offers a Focus program as part of its curriculum where each student meets with a teacher one on one to build skills in the areas that are weakest for the students. Tr. 176. The head of stated that they provide a curriculum that is skill based rather than content based and facilitates the independence of students to make them invested learners. There is not one method that is followed; they find out what the best practices are and make sure the teachers are trained to understand them and find those that are best for the students. Tr. 100; Tr. 103. In addition, their grading policy is based ibn progress, performance, participation and commitment. Tr. 103.

The small class size and student to teacher ratio allows for the individualized instruction . requires. In addition, the Focus program provides for the additional support that . needs in order to keep pace. Each student in Focus had their own curriculum based on their individualized needs. Mr. testified that is grouped with other students who have non-verbal learning disabilities. He testified that for a student with a non-verbal learning disability, it’s about making the connections with social pragmatics and scaffolding the information. Tr. 101. The fact that the students are broken up in terms of learning style and are functioning on a similar level allows for more individualized instruction. There are twelve students in most of .’s classes and they are 11th and 12 graders with one 10th grader who has a similar profile. Tr. 101

Mr. testified that the related services are mainly built into what they do in their classes, however if they required private counseling they would receive it. Tr. 130 He stated that although . is not , he is working on receptive and expressive language with his Focus teacher and in his content classes. His social skills are embedded in the service curriculum and come up in the group work in his content classes. In order to address ’s processing speed, they are using audio books, Dragon Dictate and they are using graphic organizers and organizing his essays before writing them. For attentional issues, in addition to the FM unit, he is using self regulation and a timer to stay on task and has been receiving scaffolding and the breaking down of tasks. Tr. 139. With respect to conversational skills, Ms. is giving him cues when he is wondering off task. Tr. 204. Mr. also testified that with respect to his fine motor skills and his visual and motor coordination and sensory skills, it is part of what they are teaching in the classroom. Tr. 137.

Ms. testified that in her professional opinion, . is making progress in all his cognitive skill areas and that he is appropriately placed at . Tr. 220. She feels that he is comfortable at the school, and able to keep up. Tr. 220. She believes he is benefitting from his class size and he had s gotten more efficient on his homework but he is still slow. Tr. 220. She said that he has difficulty in group work but she has seen improvement as a result of his service trip to with his history class. She also stated that he is making progress in writing. Last year he was not able to write an essay and this year he is, however he needs to learn how to develop his points in more depth. He has also made progress in terms of his ability to get in work on time and his ability to get less stressed about it. Tr. 192. His organizational skills have also improved and his fluency has progressed as a result of the Audio books. Accordingly, both Mr. and Ms. believe he has made progress this year. His mother also testified that she has seen his progress. She said that he is doing well in school and is making friends. He has joined the movie club after school. She attributes his progress to the small classroom with a lot of individual attention. Tr. 278. She says that there is also a lot of continuity in school and the staff works together and reinforces the areas that is struggling with.

Based on the foregoing, it is clear that is providing . with educational instruction specially designed to meet his unique needs and he is benefitting from the instruction and receiving educational benefit. Therefore, I find the Parents have met their burden in proving the appropriateness of for

Issue III-Equitable Considerations

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be granted.

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

I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them. The Parents participated in the June 19th CSE meeting and provided them with all necessary reports and evaluations . They were in contact with the District and communicated their objections regarding ’s placement and provided appropriate notice of their unilateral placement of . The Parents notified the District of their concerns regarding ’s placement recommendation at the June 19th, 2012 CSE meeting . The Parents then contacted the District on August 13th concerning the FNR and their desire to visit the placement (P-C) and then on August 22nd, serving as notice to the District that the Parents were placing for the 2012-13 school year and would seek reimbursement for tuition. P-B.

Based upon the foregoing, I find that the District did not provide FAPE to for the 2012-13 school year, the Parents placement of is appropriate and the Parents cooperated with the District and analysis of equitable considerations offers no basis for ruling against them. Accordingly, the Parents are entitled to tuition reimbursement for the 2012-13 school year in the amount of $51,250 as a result of their placement of for the 2012-13 school year.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

1. The District shall reimburse the Parents for the tuition for the 2012-13 school year in the amount of $51,250 upon proof of payment and proof of for said year ; and

2. Payment shall be made within 30 days of submission of invoices and proof of payment and proof of attendance Dated: July 3, 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 RECORD

Parent Exhibits

No. Date Document Pages

A 3/11/2013 Corrected Request for Impartial

Hearing 8

B 8/22/2012 Notice and Request for

Transportation 4

C 8/13/2012 Parent Response to FNR 2

D Winter2013 Winter 2013 Report 7

E Fall2012 Fall 2012 Update

and Report 9

F Spring2012 2012 Report Card and

Final Report 9

G Fall2011 2011 Report Card

and Report 10

H 6/4/2012 2012 Standardized

Test Reports 1

I 3/13/2011 2012-13 Enrollment

Contract 2

J misc. dates 2012-13 Tuition

Invoices 2

K misc. dates Proof of Payment 3

L 12/21/2010 Evaluation 15

M 6/24/2011 2011 Standardized

Testing Reports 1

District Exhibits

1. June 18, 2012 IEP 12

2. June 18, 2012 IEP Meeting Minutes 3

3. Fall 2011 Report 10

4. December 21, 2010 Draft Evaluation 18

5. August 19, 2012 Final Notice of Recommendation 1

6. May 15, 2012 Level One Vocational Interview 2

7. January 28, 2013 Due Process Response 4

8. April 15, 2011 Classroom Observation 1