New York City Department of Education, Impartial Hearing Decision

Matter of ---- v. School District

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding ---- The hearing was held on April 12, 2013; May 20, 2013; May 28, 2013; June 18, 2013; and August 7, 2013, at the offices of the School District (“the District”) located in The hearing was convened at the written request of ----’s parents (“the Parents”) on January 18, 2013. (Exhibit 36) 1 A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

Throughout the course of this hearing, the parties requested extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. (8 NYCCR §200.5(j)(5)(ii).

Post-hearing briefs were submitted by both parties on September 16, 2013.

The District’s exhibits are numbered. The Parents’ exhibits are lettered. Matter of ---- v. School District

2

BACKGROUND

---- is a 14-year-old girl diagnosed with ,

, / , and

. (Exhibit 9) ---- attended the District’s Elementary School from the first through fifth grades. She was classified by the District’s Committee on Special Education (“CSE”) as a student with a disability while in second grade, during the 2007-2008 school year. ---- was classified with a disability of “ on each Individualized Education Plan (“IEP”) created by the CSE until August 5, 2011, with the development of the second IEP for the 2011-2012 school year.

(Exhibit 18) At that time, the CSE classified ---- as a student with a .”

The District’s recommended program for ---- for the 2011-2012 school year, reflected in an IEP dated May 3, 2011, initially consisted of the following:

Consultant Teacher Services (Science) Direct 1 x Daily, 43 min. Consultant Teacher Services (Social Studies)Direct 1 x Daily, 43 min. Special Class (Support and Skills) 15:1 4 x Daily, 43 min. Integrated Co-teaching Services (English)) 1 x Daily, 43 min. Special Class (Reading and Math Skills) 15:1 1 x Daily, 43 min. Integrated Co-teaching Services (Math) 1 x Daily, 43 min.

Therapy Small group (5:1) 1 x Weekly, 43 min.

Small group (5:1) 1 x Weekly, 43 min.

(Exhibit 12)

By letter dated July 8, 2011, the Parents expressed their disagreement with the recommended program. (Exhibit 17) In addition, the Parents provided the District with an updated educational evaluation report by Dr. . (Exhibit 16) The Matter of ---- v. School District 3 parents notified the District of their decision to enroll ---- at the School ( )

for the 2011-2012 school year and to seek reimbursement from the District for the cost.

In response to the Parents’ letter and updated educational evaluation, the CSE reconvened on August 5, 2011. A new IEP was created on that date for ---- for the 2011- 2012 school year. (Exhibit 18) The IEP was modified in several areas. The CSE changed -

---’s classification from ” to “ .” The CSE

added a third writing goal to the two writing goals already created. The CSE added “Use of a Calculator” in the “Supplementary Aids and Services/Program

Modifications/Accommodations” and “Testing Accommodation” sections. Although the program recommendation remained the same, some errors were corrected as noted below in bold:

Consultant Teacher Services (Science) Direct and Indirect 1 x Daily, 43 min. Consultant Teacher Services (Social Studies)Direct and Indirect 1 x Daily, 43 min. Special Class (Support and Skills) 10:1 4 xWeekly, 43 min. Integrated Co-teaching Services (English)) 1 x Daily, 43 min. Special Class (Reading and Math Skills) 12:1 1 x Daily, 43 min. Integrated Co-teaching Services (Math) 1 x Daily, 43 min.

Therapy Small group (5:1) 1 x Weekly, 43 min.

Small group (5:1) 1 x Weekly, 43 min.

Also, under “Supplementary Aids and Services/Program Modifications/Accommodations,” the CSE added a “Program Instructional Assistant,” explaining that the “Instructional

Assistant alternates with the special education teacher for Science and Social Studies.”

By letter dated August 10, 2011, the Parents informed the District of their continued disagreement with the CSE’s recommended program and reiterated their decision to enroll -

--- at . (Exhibit 19) ---- attended during the 2011-2012 school year. Matter of ---- v. School District

4

The CSE convened on March 29, 2012, for an annual review to plan for the 2012- 2013 school year. The CSE’s recommended program for ---- for the 2012-2013 school year consisted of the following:

Special Class (Support and Skills) 10:1 4 xWeekly, 43 min. Integrated Co-teaching Services (English) 1 x Daily, 43 min. Special Class (Reading and Math Skills) 12:1 1 x Daily, 43 min. Integrated Co-teaching Services (Math) 1 x Daily, 43 min. Consultant Teacher Services (Science) Direct and Indirect 1 x Daily, 43 min. Consultant Teacher Services (Social Studies)Direct and Indirect 1 x Daily, 43 min.

Therapy Small group 2 x Weekly, 40 min.

Small group (5:1) 1 x Weekly, 40 min.

(Exhibit 29)

By letter dated August 24, 2012, the Parents notified the District that they believed that the District’s program recommendation was inappropriate for ---- and, therefore, she would attend for the 2012-2013 school year. (Exhibit 35)

By an Impartial Hearing Request dated January 18, 2013, the Parents, through their attorney, requested an impartial hearing. (Exhibit 36) The Parents assert that the District failed to offer a Free Appropriate Public Education (“FAPE”) to ---- for the 2011-2012 and 2012-2013 school years. The Parents are seeking reimbursement from the DOE for the tuition they paid to the School for both the 2011-2012 and 2012-2013 school years.

POSITIONS OF THE PARTIES

THE DISTRICT’S CASE

The District maintains that it offered a FAPE to ---- in the 2011-2012 and 2012- 2013 school years. It asserts that the CSE properly reviewed and considered all information Matter of ---- v. School District

5 pertaining to ----’s needs and developed goals to address those needs. The recommended program was designed to allow ---- to make meaningful progress in the least restrictive environment.

is the Director of Special Education for the District. Transcript page

22. 2 Ms. explained that there are five elementary schools within the District with kindergarten through fifth grade. Following elementary school, students attend the Middle School for grades six through eight. ---- attended the District’s

Elementary School beginning in her first grade year. There are between 300 and 400 students at that elementary school. It was during ----’s second grade year that she was determined to be eligible for special education services. In third grade, ---- participated in a resource room program, along with related services. The CSE recommended the same program for ---- for fourth grade. (Exhibit 1) In the fall of her fourth grade year, the CSE changed ----’s program to the “Co-Teach Consultant 4/5” program, based on the opinions of her teachers that she needed a greater level of educational support. (Exhibit 2) The resource room program was provided for one period per day. The Co-Teach program would be ----’s regular classroom placement, with a general education teacher in the classroom all day, along with a special education teacher for half of the day and an instructional assistant for the other half of the day. The Parents agreed with the program change. T. 24-31; 107.

For ----’s fifth grade year, the 2010-2011 school year, the CSE recommended the Integrated Co-Teaching program (“ICT”) along with related services. (Exhibit 3) The

Integrated Co-Teaching classroom is staffed by a general education teacher and a special

Citations to the transcript will hereafter be identified by a “T.” followed by the page number. Matter of ---- v. School District

6 education teacher throughout the day. T. 32-33. At the beginning of the fifth grade year, the CSE conducted a “program review” for all classified students in the ICT program, including ----, adding a pull-out session with the classroom special education teacher each day. T. 33-34.

During ----’s fifth grade year, the District was required to conduct her triennial evaluation. The District’s various re-evaluations were completed in November 2010.

, the school who provided and social skills

support to ----, conducted the evaluation. (Exhibit 5)

conducted the educational evaluation. (Exhibit 6) , ----’s therapist, conducted the evaluation. (Exhibit 7)

----’s therapist, conducted the evaluation. Ms.

described some of the tests administered within the various re-evaluations and summarized some of the results. T.34- 42. During ----’s fifth grade year, the Parents provided the District with a privately-obtained evaluation. (Exhibit 9)

Ms. described the tests administered and the results contained within the report. T.

42-54) The CSE convened for a “Program Review/Reevaluation Review” on February 8, 2011, to review all of the re-evaluations and the private Evaluation, as documented in an IEP of that date. (Exhibit 10) T.54-55.

On May 3, 2011, the CSE met to develop an IEP for ----’s sixth grade year. (Exhibit

12) Ms. was not present at that meeting. She described the attendants at the meeting, including ----’s then current special education teacher, therapist, therapist, and . Ms. also described all of the documents reviewed by the CSE, including the four re-evaluations conducted by the District, the Matter of ---- v. School District

7 private evaluation, a report card, and a physical examination report.

The CSE also reviewed a letter presented by the Parents from a working privately with ---- (Exhibit 11) In planning for the 2011-2012 school year, the CSE considered the change in scheduling and programs that comes with the move from elementary school to middle school. T. 58-60.

The CSE’s recommendation, as taken from the IEP and reflected above, consisted of a program including ICT classes, consultant teacher classes, special classes, and related services. Ms. described the ICT model in the middle school. The ICT classes would have a general education teacher and a special education teacher in the classroom at the same time. ---- was going to participate in an ICT class for English and math. The ICT classes had approximately six classified students among approximately twenty to twenty-five students in total. The consultant teacher classes, for science and social studies, would be taught by a general education content teacher along with either the special education teacher from ----’s ICT classes or an instructional assistant. The special education teacher and instructional assistant alternate every other day to support the general education content teacher. The instructional assistants are required to have a college degree and, although some may be certified special education teachers, they are not required to have such certification. ----’s two special classes were “support and skills” and “reading and math.”

The special classes are only for students classified by the CSE. The support and skills special class is facilitated by the same special education teacher 3 that would be with ---- in the ICT classes, and with her on alternating days in her consultant teacher classes. The support and skills special class focuses on addressing IEP goals, breaking down instruction

The District also refers to the special education teacher as a “learning specialist.” Matter of ---- v. School District

8 and concepts, allowing for repetition and practice of skills, ensuring understanding, and organization. The reading and math special class is facilitated by either the same special education teacher that would be with ---- in the ICT classes and in the support and skills special class, or another special education teacher. The reading and math special class addresses the student’s areas of need in those areas, as reflected in their IEP goals. T. 63-

66; 110; 127; 135. The ratios for the special classes appear incorrectly as “15:1” on the IEP created on May 3, 2011. The ratio should have appeared as “10:1” for the support and skills special class and “12:1” for the reading and math special class. T. 66. The CSE also recommended that ---- continue to receive , as well as therapy, in a small group. T. 66.

Ms. testified that she had received a letter dated July 8, 2011, from the Parents expressing their disagreement with the CSE’s recommendation. (Exhibit 17) The letter included a report dated June 28, 2011, which reflected update testing conducted by the who had previously evaluated ---- in 2008.

(Exhibit 16) In response to the Parents’ letter and the updated evaluation, the CSE reconvened on August 5, 2011. Ms. participated in the meeting and served as the District chairperson. The CSE also considered updated information from

----’s special education teacher, Ms. , including ----’s final report card for her fifth grade year, and a final report of ----’s progress towards each of her IEP goals for the 2010-2011 school year. (Exhibits 14 and 15) Ms. expressed her disagreement with some of the comments made in the private evaluation. In addition, she reported progress throughout the school year, in all areas, referencing the final report card and IEP goal progress report for support. She also stated her observation that ---- exhibited Matter of ---- v. School District

9 increased self-confidence during the school year. T. 67-72. Ms. described the CSE’s review of ----’s levels of performance and the process of goal development. T. 73-

76. Ms. explained that, after a discussion of the programs, the new information provided to the CSE, and ----’s performance during the prior school year, it had agreed to continue to recommend the program as recommended at the meeting of May 3, 2011. Ms.

explained the clarifications made on the IEP dated August 5, 2011, reflecting changes from the IEP of May 3, 2011. (Exhibit 18) As noted above, the two consultant teacher services classes were clarified to reflect both direct and indirect service since the special education teacher would be alternating with an instructional assistant. In addition, the ratios for the two special classes were revised to reflect the accurate ratios. T. 77-78.

Ms. explained each of the program modifications identified on the IEP and their purpose in supporting ---- T. 79-80.

The combination of programs recommended for ---- allowed her to be in a general education classroom, with support, for her four academic subjects. Additionally, ---- would participate in two special classes to address her deficit areas. Finally, she would receive the support of related services. T. 80.

Ms. described the District’s transition process for students moving from elementary school to the Middle School. Students and parents are invited to meet the principal and other administrators. For students with disabilities, there is a dialogue between the student’s fifth grade special education teacher and the sixth grade special education teacher, in order to discuss the student’s strengths and weaknesses. The students also have a visit to the middle school and parents are given an opportunity to visit the school. T. 80-81. Matter of ---- v. School District

10

Approximately one thousand students attend Middle School. T. 107. The school is divided into three distinct “houses” and also has one main building. The main building houses the central office and music, art, and unified arts classes. The houses, known as the east house, south house, and west house, each contain a third of each grade within them. The philosophy behind the “house” model of the middle school is to make the experience smaller and more nurturing, as opposed to negotiating a large building. It tries to replicate the small elementary school while fostering middle school skills. The group has the same guidance counselor and clinician, for example, and works as a team. For lunch and recess, all students in a grade are together. For “specials” such as music, art, unified arts, and physical education, the class size is between twenty and twenty-five students. T.108-109;144-145.

Ms. stated that the Parents did not agree with the CSE’s recommended program and placed ---- at for the 2011-2012 school year. T. 81-82. Ms.

testified regarding the CSE meeting, held on March 29, 2012, to plan for the 2012-2013 school year. An IEP was created as a result of that meeting. (Exhibit 29) Ms.

served as the District’s chairperson. The other participants from the District included a special education teacher, a general education teacher, and a specialist from the middle school. , the District’s Assistant Director of Special Education, also attended. The District invited members of to participate in the meeting. The participants were ----’s reading teacher, a therapist, and an educational advisor. They participated by telephone. Prior to the meeting, sent several reports to the District. They were December 2011 progress reports prepared by ----

’s teachers in her math, tutorial, literature, earth science, and writing classes. Exhibits 23, Matter of ---- v. School District

11 24, 25, 26, and 27) In addition, a report was submitted from ----’s therapist. (Exhibit 28) The CSE also reviewed a classroom observation report completed by Ms. and reflecting her observation of ---- on February 1, 2012, in her math class at . (Exhibit 21) All reports, as well as information provided verbally during the meeting, were considered by the CSE. During the meeting, the participants discussed ----’s levels of performance, strengths, and needs, in all areas. During the meeting, Ms.

asked the participants for progress updates for each individual goal from ----’s 2011- 2012 IEP. Their responses were documented by Ms. who noted whether ---- had achieved the goal (noted with “A”), was progressing inconsistently (noted with “PI”), was progressing gradually (noted with “PG”), or progressing satisfactorily (noted with “PS”).

(Exhibit 30) T. 82-87. Ms. stated that the goals were developed by asking the participants if each goal in each area needed to be continued, revised, or discontinued. In addition, they were asked if new goals needed to be added in each area. Ms.

described the specifics of the goals. T. 90-98.

Ms. explained that following the discussion of ----’s present levels of performance and needs, and establishing goals for the 2012-2013 school year, the CSE continued the recommendation of a District program consisting of ICT classes, consultant teacher services classes, special classes, and related services at middle school. The Parents asked the CSE to consider a full-day special class which the CSE did consider. The CSE determined that the recommended program could address ----’s needs in the least restrictive environment. The Parents did not agree with the CSE’s recommendation. The Parents sent a letter to Ms. dated July 13, 2012, which included a letter from ----’s

(Exhibits 32 and 33) The CSE did not reconvene following receipt of the Matter of ---- v. School District

12 letter since it did not provide any new information for consideration. By letter dated August 24, 2012, the Parents notified the District that they were placing ---- at for the 2012-2013 school year. (Exhibit 35) T. 98-101.

Ms. testified that she supported the CSE’s recommendations for both the 2011-2012 and 2012-2013 school years. She believed that the program recommendation for the services at Middle School could meet ----’s needs. Her belief is based on several factors: ----’s performance during fifth grade; both the District and private testing results; and feedback from those who have worked directly with ----, including the staff. T. 101-102. Ms. felt that “the development of a very supportive program at the middle school, which was a hybrid of both general education classrooms with supports, special class, and related service, would address ----’s needs.” T. 102.

Angela was ----’s fifth grade special education teacher during the 2010- 2011 school year. In the 2010-2011 school year, Ms. taught ---- in an ICT class, along with a general education teacher. Ms. explained the manner in which she and the general education teacher worked together, provided instruction and incorporated station teaching in the classroom. There were twenty-one students in the class: sixteen general education students and five special education students. The five classified students had varied academic needs. Some were on a second grade reading level and some were on grade level. Some had learning disabilities and others were classified as “other health impaired” or speech and language impaired. Ms. explained that she was responsible for implementing ----’s IEP and helping her achieve her goals. (Exhibit 3) Ms.

s used a modified fifth grade curriculum. Ms. was a member of the CSE on September 16, 2010, when they met to add a forty-five minute pull-out service for Matter of ---- v. School District

13 remediation skills. (Exhibit 4) The pull-out session permitted Ms. to work on discrete reading and math skills (although mostly math skills) in isolation. The pull-out session included the five classified students in the class and was held in a smaller classroom. ---- received the related services of therapy, therapy, and during that school year. T. 200- 206; 253; 264.

Ms. described ---- at the beginning of the school year. She was eager to learn and loved reading and sharing stories. She was sometimes distracted. She would sometimes play with her hair, pick at her fingernails, look around the room, or ask a non-related question. She was “a great part of our classroom community.” T. 206-207; 257. At the beginning of the year, ---- was reading at an grade level. Math was more difficult for ----, as she had difficulty with layered tasks. She was at a beginning of grade level in math. She required review and reinforcement of skills and strategies. ----’s writing was a little disorganized, but it was a stronger area for her which she loved. Ms.

described ---- as keeping more to herself during class instruction, but she would work well with others during small group instruction or on projects. She would sometimes prefer to read on her own but would join in with others when encouraged to do so. T. 207-

208; 257.

Ms. conducted ----’s educational re-evaluation for her triennial review.

She administered the Wechsler Individual Achievement Test III (“WIAT III”) to ---- The results of the testing in the selected subtests are contained in Ms. ’ report.

(Exhibit 6) Ms. described each subtest and ----’s performance. She summarized the testing results as “varied.” ---- did well in some areas, such as writing, and did poorly in others, such as math. This was consistent with what Ms. observed in the Matter of ---- v. School District

14 classroom. In some areas, ----’s performance surprised Ms. because it did not reflect her classroom abilities. Ms. attributed this inconsistency to the inability to provide prompts and to repeat directions during the testing, as she would in the classroom. T. 208- 218)

Ms. participated in the CSE meeting on February 8, 2011, at which all of the re-evaluations were reviewed. The CSE discussed the testing results, looked at ----’s areas of weakness, and added several goals to the IEP. Those additional goals included a study skills goal for ---- to “use the strategy of outlining important information when summarizing oral information for selected assignments.” The CSE also added an additional reading goal for decoding that ---- “will increase her reading decoding skills by reading multi-syllabic words in a given list and in continuous text on her reading level.” The last goal added was an additional math goal that, “When presented with word problems, the student will identify which operation to use and correctly solve the problems.” T.219-221.

Ms. described the progress made by ---- towards her IEP goals during the 2010-2011 school year. This progress was documented in a report provided to the Parents after the end of the school year. (Exhibit 15) T. 222-223. Ms. explained the manner in which she supported ---- and worked towards the achievement of the goals, and -

---’s ability to perform the tasks described. She also described ----’s progress and her achievement of the goals. T. 223-234. By the end of the year, ---- was very close to a grade independent reading level. She was also able to read some grade level material presented to her. However, when reading independently, her comprehension brought her reading level more towards the end of grade. T. 225. Matter of ---- v. School District

15

Ms. explained the transition process for students entering the middle school. During the fifth grade, the teachers and students are always talking about the middle school. In addition, at least once during the school year, each fifth grade teacher picks a topic and the classes rotate among the teachers to learn about each topic. This is done so that the students experience rotating among different teachers. There is an

Olympic Day, including all students in the District, with community and spirit building and relay races. In May, students are broken into small groups to tour the middle school buildings. There are articulation meetings for classified students during which the middle school professionals meet with the elementary school special education teacher to review each student’s strengths, weaknesses, and areas of need. This is done to facilitate the placement process. T. 235-236.

On May 3, 2011, Ms. participated in the CSE meeting to develop an IEP and recommend a program for ---- for the 2011-2012 school year. Ms. shared information with the CSE regarding her work with ---- as her special education teacher.

Ms. believed that ---- had a great year, had progressed nicely towards her goals, and had made gains in all academic areas. At the meeting, goals were developed for ----’s sixth grade year. Ms. described the CSE’s recommendation. She explained that the support and skills special class would help with the organization of materials or upcoming projects, and sometimes pre-teach a topic or vocabulary. The reading and math special class would target specific skills and strategies. For reading, it would likely focus on decoding and comprehension. For math, the focus would be discrete skills, fact fluency, and basic operations. Ms. believed that the recommended program would provide ---- with the support she needed to make meaningful progress. T. 234; 237-239. Matter of ---- v. School District

16

Ms. stated that the CSE met again to discuss ----’s sixth grade year on August 5, 2011. The meeting was held to review private testing that had been done. Ms.

attended that meeting and described the manner in which the goals were determined. T. 239-248; 273. Again, Ms. agreed with the CSE program recommendation for ----’s sixth grade year. She explained that, in the sixth grade, the classified students receive a little more support than in elementary school, due to the special classes. In addition, the classified students who have the co-teach model get to travel to their other classes with their learning specialist. Ms. believed that ---- was emotionally equipped to handle the middle school and would have done well. T. 249.

is a school for the District. She has been working at the District’s High School program for two years. Prior to working in this program, Ms. was a school at the Elementary School, for two years, and at the Middle School, for one year. Ms.

provided services to ---- during her fourth grade year. Pursuant to the IEP in effect for ---- at the beginning of the 2009-2010 school year, Ms. worked with her one time individually and one time in a group per week. (Exhibit 1) Ms.

described ---- as having some general anxiety issues. She also had some behavioral and interpersonal skills difficulty with other children. The goals being worked on by Ms.

were: identifying strategies for fostering positive relationships with peers, remaining on task during her class lessons, and using effective coping strategies when faced with conflict situations. T. 290-294.

Based on discussions between Ms. and ----’s classroom teacher, they believed that ---- needed more support than she had received in the regular classroom with Matter of ---- v. School District

17 one general education teacher. Therefore, while it was early in the school year, on October 23, 2009, the CSE convened and placed ---- in the co-teaching class. (Exhibit 2) In coordination with the co-teaching program, ----’s services changed. A program took place in the classroom as well as a pull-out group during lunch. In addition, ---- was always able to drop in to Ms. ’s office to talk with her.

Sometimes they would draw together, which ---- loved, as a way to help ---- to calm down and focus. T. 294-298. Ms. was able to observe ---- in the co-teaching classroom at least once per week during her fourth grade year. T. 339.

Ms. served as the CSE chairperson and school at the meeting held on March 25, 2010, held to plan for ----’s fifth grade year. (Exhibit 3) At that time, ---- had been seeking out more one-on-one time with Ms. and, therefore, the CSE agreed with Ms. ’s recommendation to re-introduce a weekly individual session. Ms. described the development of the three social and emotional goals contained in the IEP for the 2010-2011 school year. Ms.

described ----’s progress towards her social and emotional goals in the 2009-2010 school year. T. 302-308.

Ms. did not provide the services to ---- during the 2010-2011 school year. was assigned to provide the services to students in the co-teaching program that year. Ms. continued to have contact with ---- when ---- would stop into her office on occasion. T. 309-310. Ms. conducted ---

-’s evaluation in the fall of 2010. Although ---- was no longer on her caseload, since it was the beginning of the school year and Ms. already had a relationship with ----, she was the to conduct the evaluation. Ms. Matter of ---- v. School District

18 described the testing and other components of the evaluation. (Exhibit 5) T.

310-323)

Ms. stated her opinion that based on the progress made by ---- in fourth grade, which was her first year in the more restrictive co-teaching setting, and her overall sense that ---- had a good year in fifth grade, it surprised her that ----’s private would recommend a more restrictive setting. (Exhibit 11) T. 324-326. Ms.

believed that ---- could function in a co-teaching classroom in the sixth grade as well. She described the middle school program as having even more support than the elementary school due to the house model. Ms. believes that it is important for ---- to have interaction with her mainstream peers for her social skills development. T. 326-327.

is the Assistant Director of Special Education for the District.

She is the direct supervisor of all programs in the middle school and the high school. She is fully responsible for the implementation of IEP’s and works with all of the special education teachers and related service providers to address IEP goals. She ensures that the appropriate methodologies are implemented and that every student’s needs are met. Ms.

described the middle school. There are approximately one thousand students in the middle school. The middle school consists of four buildings. One building contains the principal’s office and the music and art classrooms. The three other buildings are called

“houses.” There are approximately 330 students per house, divided into the sixth through eighth grades. Therefore, one third of the sixth grade middle school students, approximately 110 students, are in each house. The sixth grade students in a house would comprise a team with the same teachers for the four core academic subjects, as well as a learning specialist for students with IEP’s, a guidance counselor, and a clinician. Ms. Matter of ---- v. School District

19

explained the idea behind the structure of the middle school. It is based on the middle school philosophy of “teaming” by which “a group of interdisciplinary professionals get to know students very well.” The group meets regularly to discuss the students’ needs. Each house has a “house director” who serves like an assistant principal.

T. 378-381; 438-439.

Ms. described the various special education services provided in the middle school. The ICT classes, which are for English and math, have a general education teacher and a special education teacher working together. The consultant teacher services class, which is for science and social studies, has a general education teacher working together with either the special education teacher from the ICT classes, or with an instructional assistant, on alternating days. The size of those classes ranged from eighteen to twenty-five students. The special classes are in the areas of support and skills, reading, and math. The support and skills special class is used to address a student’s IEP goals, pre-teach and re-teach material, and work on study skills. The reading and math special class addresses a student’s skills in those areas. The reading program is phonologically-based and provides multi-sensory, sequential, and scaffolded instruction. The support and skills special class is taught by the same special education teacher who teaches in the ICT classes every day, and in the Consultant teacher services classes on alternating days. The reading and math special skills class is taught, either by the same special education teacher, or by another special education teacher. T. 382-384. Ms. explained that, although the ratio for the special skills reading and math class is 12:1, it is typically a class of five to seven students. T. 395; 407. The class size for the support and skills class is approximately six to eight students. T. 409-410. Matter of ---- v. School District

20

During the eight-period day, ---- would have had four periods for her core subject classes with two professionals in the classroom, and two periods for her special classes with a special education teacher and six to eight students. The other two periods of the day would be the lunch period and either music, art, physical education, or a related service, depending on the day. T. 436- 437. The middle school students have had music and art classes on alternating days (there are “A” and “B” days) in the central building. Those classes are taught by one general education teacher and range from seventeen to twenty-five students. T. 405-406. Ms. explained that all of the core subject classes are scheduled consecutively within each house. The music, art, and physical education classes, are scheduled before or after the block of core classes. Therefore, the students have fewer transitions throughout their day between their house and the central building. When sixth grade students are transitioning to the middle school and getting oriented to the alternating

“A” and “B” days, they are supported by the learning specialists until they are comfortable with the schedule. T. 435-436.

Ms. conducted a classroom observation of ---- during her math class at in the 2011-2012 school year. She documented her observation in a report dated February 1, 2012. (Exhibit 21) Ms. described her observation of ---- ---- followed the classroom routines, worked hard, her attention was good, and her behavior was appropriate. She was involved in the group activity. She struggled a bit with the concept being taught but, with teacher support, she was able to grasp the concept. T. 384-

387. Ms. ’s observation report was reviewed by the CSE at its meeting on March 29, 2012. Ms. participated in that meeting. ----’s present levels of performance and goals were determined based on information provided by the three Matter of ---- v. School District

21 professionals who participated by telephone, as well as from ----’s mother. The CSE also had several documents provided by to review and use in the preparation of the IEP.

(Exhibits 23, 24, 25, 26, 27, and 28) The CSE reviewed ----’s progress towards the goals from her 2011-2012 IEP, as provided by the staff. Ms. described the manner in which the middle school program would work towards the goals contained in the IEP developed at the meeting. (Exhibit 29) T. 387-398.

Ms. stated that students in the middle school are not pulled out of their academic classes for related services. Since ----’s support and skills special class would be four times per week, ---- would receive one of her sessions on the fifth day. Her other session, as well as her session, would be scheduled on a rotating basis among music, art, and physical education. T. 399.

Ms. believed that the CSE’s recommended program for ---- for the 2012-2013 school year provided sufficient support for her needs. She believed that ---- was “absolutely cognitively able to participate fully in mainstream classes and the mainstream curriculum with the support of a special educator who would make modifications and adaptations as appropriate. In addition, I felt we had very good skills classes to continue to try to remediate her deficits in reading and math.” T. 399-400.

The Parents sent a letter to Ms. , dated July 13, 2013, along with a letter from a , dated June 24, 2013. (Exhibits 32 and 33) Ms.

responded to the Parents’ letter on July 20, 2013, confirming her receipt of their letter and Dr. ’s letter, and indicating that the academic scores and diagnoses described in the letter had been previously reviewed by the CSE. (Exhibit 34) Ms. Matter of ---- v. School District

22 continued to believe that the program developed by the CSE for the 2012-2013 school year was “absolutely” appropriate for ---- T. 400-401.

THE PARENTS’ CASE

The Parents challenge the appropriateness of the program recommendations in the IEP’s for the 2011-2012 and 2012-2013 school years, as well as the placement at the District’s middle school, arguing that they are unable to confer a meaningful educational benefit to ---- The Parents maintain that the middle school is too large, both physically and in student population, and would be distracting, noisy, unpredictable and anxiety-inducing.

In addition, the Parents urge that ---- requires highly individualized, full-time special education support in a small, highly structured, specialized school.

Dr. is a who is certified in adult as well as child and adolescent Approximately ninety percent of her full-time private practice is devoted to children, adolescents, and young adults. Dr. began seeing ---- in the fall of 2009. She has seen ---- approximately “once every couple of months for medication check-ins” and to speak to the Parents. Dr. further characterized the frequency of the visits since September 2011 as being closer to every six months. When Dr.

sees ---- for medication management, she provides to her and her

Parents. She stated that ----’s primary diagnosis is , and she also has learning difficulties. In addition, in the past, she has struggled at times with mood and anxiety issues related to school. ----’s conditions impact her ability to learn, in that she is academically behind other students in a typical classroom, her testing has shown academic delays, she has cognitive delays, and she has struggled socially. T. 449-455; 469. Matter of ---- v. School District

23

Based on Dr. ’s discussions with ---- and her Parents, as well as a review of the District’s testing, she believes that an appropriate educational environment is one in which ----’s “learning needs could be very individualized in an environment where she was not the minority but more, you know, more the majority, so that she could not feel so isolated.” T. 455. Dr. stated that placement in such an environment would allow ---- to achieve academic and social success, and to develop a positive feeling about school. T. 455-456. Dr. documented her opinion regarding an appropriate educational placement for ---- in a letter dated June 24, 2010. (Exhibit 33) T. 456. Dr.

expressed her opinion that an ICT model in the District’s middle school would not have been appropriate for ---- in the 2011-2012 and 2012-2013 school years. Her opinion was based on ---- being far behind her peers in academics, intellectual capacity, and socialization skills. With a faster pace in middle school, ---- would not do well in that environment and would not succeed. T. 458-460. Dr. is unaware of the types of students that were projected to be in ----’s special classes or ICT classes in the District’s middle school. T. 470- 471. However, Dr. believed that ---- would have difficulty asserting herself in a class of up to twenty-five students, in which the majority of them are “unlike her,” since she had weaknesses in all areas. T. 476-477.

Dr. is familiar with the program and has “plenty” of patients there.

She described it as a program for students who have mostly language-based learning difficulties. She has seen that, generally, children transfer to from a public school because of failure there. T. 461- 462. ---- and her Parents have reported ----’s progress at to Dr. . ---- has made friends and gained ground academically. She is happier and more confident, and a little less irritable and mood dysregulated at home. ---- Matter of ---- v. School District

24 speaks positively about school and no longer has trouble getting up and ready in the morning. Dr. has not spoken to anyone at since ---- has been there, and has not seen any of her achievement testing during that time. Dr. believes that -

--- was appropriately placed at for the 2011-2012 and 2012-2013 school years, based on the improvement in her academic and personal functioning. ---- has had a positive experience at as compared to her prior experience where she was not thriving academically or personally. T. 465- 467; 470; 474.

is a certified special educator and administrator in . Ms.

worked at for thirty-four years. Her husband was the founding headmaster of the school. Since the founding of the school in 1975, Ms. worked for two years as a special educator, for four years as an educational advisor, and for twenty-eight years as the director of admissions and placement. She is currently a self-employed educational consultant. Upon her retirement from in 2009, the school made an arrangement by which Ms. testifies at impartial hearings on behalf of parents of students at .

According to Ms. , has a policy that teachers and administrators can not participate in hearings during the school day because it takes time away from their responsibility to the students. Ms. ’s son-in-law and daughter still work at . T.

481-484. When Ms. observes a student at , she is paid by the student’s parents as an educational consultant for them. T. 531.

In her work as an educational consultant, Ms. visited four times during the 2011-2012 school year and four times during the 2012-2013 school year. Ms.

described as a not-for-profit, independent school in , for children with language-based learning disabilities, which is overseen by a volunteer board Matter of ---- v. School District

25 of directors. is a full-time special education program. During the 2011-2012 and 2012-2013 school years, had 250 students ranging in age from six to sixteen. The lower school serves students ages six through twelve and the upper school serves students ages twelve through sixteen. The philosophy of is “to provide a remedial program to children with learning disabilities by immersing them in a language-based program, offering individualized direct instruction in a multi-sensory environment. It is transitional in nature, looking to help the youngsters develop both skills and strategies so that they are able to move on to a more traditional program within a short period of time.” T. 484-486.;

488. Ms. described the three-part application and admissions process at . T.

491-494. does not offer a high school diploma. T. 533. A student’s placement at is from three to four years, on average. T. 534-535.

Ms. described how classes at range in size. For the tutorial class, which is the core of the reading program, the size can be as small as one-to-one to four-to-one.

Class sizes can get as large as twelve-to-one as a student prepares to transition from to a more traditional program. Students are grouped according to age, cognitive profile, strengths and weaknesses, learning style, and social maturation, but there is never more than a two-year age range within a class. All related services are provided at . T. 486-

487.

Just prior to ----’s attendance at , the Parents asked Ms. to observe ---- in case the need should arise for Ms. to testify on their behalf at an impartial hearing. Ms. observed ---- during the 2011-2012 and 2012-2013 school years. In conducting her observations, she spent the day in all of ----’s classes and meeting with her faculty team and advisor. T. 495-497. Ms. described ----’s needs based on her Matter of ---- v. School District

26 review of ----’s file, which included ----’s IEP’s, the District’s testing, and the independent evaluation, as well as her two observations. Ms. described ---- as a child with language deficits affecting all areas of her academic profile, executive functioning issues, attentional issues and working memory weakness. Math is ----’s greatest area of weakness. Ms. also noted ----’s anxiety issues. Ms. also described ----’s strengths as an athletic and creative child. T. 497-499.

Ms. described ----’s teachers and advisors during the 2011-2012 and 2012- 2013 school years and noted their credentials. T. 502-506. ----’s larger classes have five to eight students. In those classes, she had a harder time actively participating or initiating participation without a teacher’s direction. T. 502. In the upper school, to which ---- transitioned in the 2012-2013 school year, approximately eighty students are in the dining room for lunch. Six or seven students sit at each table with a teacher to facilitate communication. During recess, which follows lunch, there are faculty members outside with the students. T. 512-513.

Ms. described the progress made by ---- during the 2011-2012 school year. -

---’s individual word reading and decoding skills improved. Although there was less progress seen in reading comprehension, there was still progress noted. In math she had started the year with addition and subtraction of whole numbers and progressed to working with all four operations with whole numbers by the end of the school year. ----’s social skills improved towards the end of the year when she found a group of girls, through the help of her advisor, who were more socially appropriate for ---- In addition, ---- was beginning to advocate for herself and to problem solve throughout her day. T. 506-509. Matter of ---- v. School District

27

During the 2012-2013 school year, progress was noted in decoding and in literal comprehension. Critical thinking and inferential skills continued to be a challenge for ----

Her writing improved during the school year. ---- moved from whole numbers to beginning fractions in math, and she became comfortable multiplying fractions. Socially and emotionally, ---- has improved her self-advocacy and can better manage social situations that had previously caused her great anxiety. ---- has expanded her friendships. She is also taking more appropriate risks, such as joining the field hockey, ice hockey, basketball, and lacrosse teams. Those teams play against mainstream schools. “She is really putting herself out there and very involved and getting very positive feedback from that as well.”

T. 509-512; 514.

Ms. stated that from observing ----, speaking with her teachers, and meeting with her advisors in the past two years, she seems to be “very well-served by the program and has a peer group academically, cognitively, and socially within her age group.” T. 499.

Ms. believes that ---- was appropriately placed at in the 2011-2012 school year since she had both an appropriate peer group academically and socially and definitely made progress. ---- was also appropriately placed at in the 2012-2013 school year. She made the transition to the upper school quite smoothly with the assistance of her team and advisor, and she has shown academic and social progress. T. 523- 524.

When Ms. worked at as the director of admissions and placement, her role included visiting and observing programs where an student may be attending after . When visiting a public school, a co-taught class was often one of the options observed. These visits informed Ms. ’s familiarity with such programs. The ICT classes she observed contained between twenty and twenty-four students with a general Matter of ---- v. School District

28 education teacher and a special education teacher. Based on Ms. ’s knowledge of ---

- and her understanding of an ICT class, she does not believe that such a class would have been appropriate for ---- for the 2011-2012 school year, given her profile. The reason for her opinion is that even in a class of seven with one teacher, with children with similar profiles to hers, ---- was reluctant to participate. In a co-taught class, with students who can easily comprehend the material and could participate at a very quick language rate, ---- would be very intimidated. It takes ---- a while to process information so a class taught at a traditional pace would not be appropriate for her. In ----’s classes at , observed by Ms.

during the 2011-2012 school year, teachers were previewing the material and teaching it using multi-sensory techniques. Ms. does not believe that would occur in a co-taught class that is “curriculum-driven.” Ms. maintains the same opinion as it applies to the 2012-2013 school year. She stated that while ---- has improved, she continues to require a very multi-sensory, intense remedial program. Ms. had the same opinion after hearing a description of the consultant teacher classes. She believes that the classes would not provide sufficient intervention for ---- and that she is not ready for that level of support. ---- would also have difficulty in art and music classes of up to twenty-five students with one teacher, given her language profile. T. 515- 521.

worked at as a teacher for ten years and as an educational advisor for twenty years. Ms. left in June 2012 and currently lives in as a volunteer at an orphanage. While serving as an educational advisor, Ms. was also the head of the reading and history departments and in charge of the new teacher training program. As ----’s educational advisor during the 2011-2012 school year, Ms.

coordinated her program. The educational advisor is responsible for Matter of ---- v. School District

29 individualizing a child’s schedule, based on their strengths and weaknesses, to form homogenous groupings for each subject area. Ms. went into ----’s classes, met with her teachers and collaborated with them, and was available to ---- for any help she could need in navigating the social and emotional components of her educational experience. T. 586-588; 593-594.

Ms. explained that teacher training is a large focus of the program to ensure consistent teaching techniques and a shared philosophy. There are weekly staff meetings to discuss various educational topics as well as meetings called by the educational advisor with a child’s team to discuss that child. Individual teachers would also meet one-on-one with Ms. for collaboration. T. 588-591.

Ms. described ----’s weaknesses during the 2011-2012 school year. Math

was a very difficult area for ---- All areas of language were challenging for ---- She struggled with expressive, receptive, and pragmatic language. She had deficits in decoding, particularly with two-syllable words, and her comprehension was greatly affected. ----’s writing skills were low and her stories limited to simple sentences with no organization or elaboration. T. 594-597. ---- had huge social and emotional challenges which Ms.

attributed to her language issues. She had difficulty understanding the perspectives of others, would become “embroiled” in the drama of social situations, and had difficulty with anger regulation. At the beginning of the school year, ---- arrived desperate for friends and needed a lot of help in that regard. She participated in a small social skills group with a and a therapist to assist her with her emotional response to social situations. T. 597-598. Matter of ---- v. School District

30

----’s strengths were in the areas of arts and sports. She is tremendously talented in art and also joined the choir. Sports also served as a great connection for ---- and an area in which she would take more risks. T. 597. During the 2011-2012 school year, ---- participated in field hockey, basketball, lacrosse, and ice hockey. The teams played against schools with typically developing peers. T. 632-633.

At the beginning of the school year, ---- would go to Ms. ’s office to see her four or five times a day. As the year progressed, ---- did not go to Ms. ’s office as often. T. 600. Ms. would also see her every morning as her homeroom teacher.

The homeroom period is used to make sure the students are organized and ready for the day. For ----, it was her opportunity to ask the many questions she would have to mentally prepare herself for the day. T. 630.

Ms. explained that ----’s smallest class during the 2011-2012 school year was her tutorial class, which is her reading class and had four students. Her tutorial class met twice each day for a total of eighty minutes of reading instruction per day. In her literature class of eight students, reading was also the focus. However, the teacher would spend a great deal of time breaking down small amounts of text, using role play and visuals, to support the comprehension of events and characters, and to build vocabulary. Ms.

described the goals worked on in the tutorial and literature classes and the progress made by ---- towards those goals. Ms. described ----’s struggles in math and the curriculum used in her math class. In the beginning of the year, ---- had great difficulty with any regrouping and with number sense. She was not up to multiplication or division yet. Ms. described ----’s math goals and the progress she made towards those goals. Ms. stated that, by the end of the school year, ---- continued to need a lot of Matter of ---- v. School District

31 help with number sense, but had moved on to multiplication and division. ----’s math class had seven students. Ms. described the curriculum used in ----’s writing class, how her needs were addressed, and the progress she made. The writing class contained seven students. ----’s largest class was her science class, which had nine students. T. 602-629.

Ms. explained that the goals contain in the IEP created by the District for ---- for the 2011-2012 school year were used as a starting point for the staff at , who then created their own goals. (Exhibit 18) T. 635-636. Ms. documented ----’s progress in her portion of the end of the report that was sent to the Parents. (Exhibit Q) T. 602.

Ms. stated that, with regard to ----’s academic progress at in the 2011- 2012 school year, “I would say we made a start, and that she had more that she needed to achieve.” She further explained that there was some obvious progress in that her reading, writing, and math “moved up somewhat, but not yet commensurate with her grade level.

So steps in the right direction but not fully complete.” With regard to ----’s social and emotional needs, progress was demonstrated by ---- establishing a group of friends, having playdates, having fewer fights on the bus, becoming involved in sports, and having an idea of how to solve a problem. T. 638-640. Ms. stated that the small class size was important for ---- because she was a grader coming to with profound educational needs, both academically and emotionally, and requiring intense instruction in order to build her skills and self-confidence. T. 603-604.

Ms. participated in the CSE meeting held on March 29, 2012, regarding the 2012-2013 school year, which resulted in the creation of an IEP. (Exhibit 29) Ms.

was one of three staff members from participating by telephone. She described the meeting as tense, with emphasis on tests scores and not enough emphasis on “the whole Matter of ---- v. School District

32 child.” Ms. stated that she raised concerns at the meeting which were discussed.

Goals were developed by the participants in the meeting based on ---- being in the setting. Ms. explained her understanding of the CSE’s recommended program.

Ms. stated that a class of up to twenty-five students would be difficult for ---- and not appropriate because of her attentional needs, her language confusion, her need to ask many questions, and her need to receive information slowly in order for her to grasp and retain it. ---- continued to need “an intensive, small group, structured, multisensory program at this point, in my opinion.” T. 640-645. It is Ms. ’s opinion that met ----’s special education needs during the 2011-2012 school year. T. 645.

is a special education tutorial and writing teacher at . She has seventeen years of teaching experience but the 2012-2013 school year was her first year at . ---- was a student in Ms. ’s tutorial and writing classes during the 2012- 2013 school year. During the first half of the school year, since Ms. was a new teacher in the school, she co-taught the tutorial class with another teacher assigned as her mentor. Therefore, the ratio for the first half of the school year was two teachers with four students. The class was split for the second half of the school year. ---- was assigned to the other tutorial teacher, along with one other student, and Ms. taught the other two students. The tutorial class was taught in that manner four days per week. Once a week, the two groups worked together, along with a , making the ratio three teachers with four students. ---- was a student in Ms. ’s writing class, with a one to six ratio, for the entire year. T. 692-696; 728.

Ms. described ----’s strengths and weaknesses during the 2012-2013 school year. She stated that ----’s academic strength in the tutorial class was her decoding. Matter of ---- v. School District

33 She built up her fluency, but she struggled with comprehension and inferring information.

She also struggled with organization and following a routine, and she experienced difficulty requesting help and completing work outside of the classroom. Socially, ---- struggled with peer interactions and would sometimes say things that were not appropriate. T. 702-704.

Ms. explained that ---- traveled to each subject with different groups of students.

T. 701.

Ms. ’s writing class focused on skills such as sentence structure and paragraph writing. Ms. found ----’s most difficult area in writing to be organization. She addressed ----’s difficulties by doing a lot of preparatory work, including highlighting, making lists, taking notes, and using graphic organizers. ---- required one-to-one instruction and repetition. T. 715-717.

The tutorial class is a reading and word study class. The focus is on vocabulary, fluency, and decoding. Prompts are used when reading small pieces to move from fact-based comprehension to more analytical thinking, including predictions and problem-solving. ---- required a lot of one-to-one attention. Her decoding was a stronger area and continued to grow. She needed a more individualized lesson structure to work on comprehension and higher level thinking skills. T. 718-719. ---- gained more confidence in her reading, and her decoding and fluency improved throughout the year. She also improved in the area of comprehension with answering questions and analyzing her reading. ---- continued to struggle with higher order thinking and organization. T. 723-

725.

Ms. explained the “callback” and “study hall” periods which are each scheduled four days a week. The callback period offers additional academic support and is Matter of ---- v. School District

34 also used for social activities. The study hall period is a homework period at the end of the day in a small group with a teacher. The teacher assists with homework and can contact a student’s other teachers if there are any questions. These periods supported ----’s need for structure, reminding, and prompting. T. 719-720.

Ms. explained that ---- met with a , , in a small group, for and each week. Another , also worked with ----; however, Ms. was unaware of the purpose or duration of that work. In addition, , another , joined the tutorial class once a week. T. 734-735. By the end of the year, Ms. had observed progress in ----’s ability to verbalize her concerns, engage in less dramatic peer interactions, and make friendships with students more appropriately suited for her. T. 725-

726.

Ms. expressed her opinion that met ----’s special education needs during the 2012-2013 school year due to its small class sizes and structured environment.

T. 726.

is ----’s mother. She explained that ---- was when she was almost two years old. When the family moved to the ,-

--- entered the second grade. After some observation, she was classified as “ ” and given an IEP. She participated in a general education class with pull-out resource room services. The frequent pulling out from the classroom created a stressful environment for ---- ---- was moved into an ICT class beginning in the fourth grade. Ms.

stated that ---- did better in that setting, compared to the pull-out model. However, Matter of ---- v. School District

35 the ICT class was still insufficient to allow ---- to make any real academic progress or make friends. T. 740; 743-745; 748.

Ms. described ---- as a very creative and warm child who loves family and sports and is good with animals. ----’s learning disabilities and cause her to have very slow processing, have tantrums, become totally anxious, and out of control. T. 740-

741.

On August 5, 2011, Ms. participated in a meeting which resulted in the creation of an IEP for ---- for the 2011-2012 school year. (Exhibit 18) The participants discussed the right teaching levels, support, and setting for ---- The recommendation was made for an ICT class in the middle school. Ms. voiced her concern during the meeting that, in elementary school, ---- was not making enough progress, if any, in that setting, and that it would be more difficult in the larger middle school environment. The

CSE did not discuss a full-time special education program for ---- T. 746-749. Ms.

visited an ICT class in the middle school. She believed that ---- would be “drowning” in a large class of twenty-five students due to the size and distractions. T. 749-750. Ms.

acknowledged that the purpose of the special classes, for support and skills and for reading and math, was explained to her during the CSE meeting for the 2011-2012 school year, which would have been the year that ---- transitioned from the elementary school to the middle school. T. 760-762. Ms. did not visit one of the special classes and does not recall being offered that opportunity. T. 763; 766. Ms. believed that the special classes, even with a smaller class size of twelve to fifteen students, would not have been helpful to ---- T.767. By letter dated August 10, 2011, the Parents notified the District of their concerns and disagreement with the recommended program. The District did not Matter of ---- v. School District

36 respond to that letter. (Exhibit 19) T. 750-751. The Parents placed ---- at for the 2011-2012 school year. T. 742.

Ms. participated in a meeting which resulted in the creation of an IEP for ---- for the 2012-2013 school year. Three members of the staff participated in that meeting, along with members of the District and Ms. ----’s progress during the 2011- 2012 school year was discussed and goals were developed for the next school year. The

CSE recommended an ICT program in the middle school for the 2012-2013 school year. T.

751-753. By letter dated August 24, 2012, the Parents notified the District of their concerns and disagreement with the recommended program. (Exhibit 35) The District did not respond to that letter. T. 753. The Parents placed ---- at for the 2012-2013 school year. T. 742.

Ms. . stated that at the CSE meetings for both the 2011-2012 and 2012-2013 school years, she felt that she could not really contribute to or influence the goals created.

She believed she was not participating in the meeting, but rather being informed. She did not see the goals or other parts of the IEP’s until receiving the IEP’s in the mail. T. 748;

752. Ms. did acknowledge that she was always able to ask questions during the meetings. T. 763.

The Parents signed an enrollment agreement with on March 21, 2011, for the 2011-2012 school year. (Exhibit L) They signed the contract and paid a deposit at that time to secure a place for ---- The Parents continued to remain open to a public school placement if the District had identified an appropriate program for ---- T. 756-757. The

Parents paid the full tuition to for the 2011-2012 school year. T. 759. Matter of ---- v. School District

37

In the 2011-2012 school year, Ms. observed a change in ----’s demeanor, even noticeable by her posture. Rather than appearing guarded and hunched over, she carried herself in a more upright position. Academically, she made slow progress. She was “finally getting something.” Ms. attributes ----’s progress to the consistent approach used throughout all of ----’s classes at T. 753-755.

The Parents signed an enrollment agreement with on January 31, 2012, for the 2012-2013 school year. (Exhibit H) They did so at that time to secure a place for ----

Again, the Parents still would have accepted an appropriate placement for ---- within the District had one been offered. T. 758-759. The Parents paid the full tuition to for the 2012-2013 school year. T. 759.

In the 2012-2013 school year, Ms. observed ----’s continued academic progress. During that school year, ---- was in the grade and had progressed to a grade reading level. ---- also made social and emotional progress. She made friends and learned how to maintain those friendships through the work at on appropriate social interactions. T. 757-758.

It must be noted, for the record, that the Parents presented a letter written by ---- and dated April 8, 2013, in support of their position. The letter was received into evidence over the District’s strenuous objection. (Exhibit A) The letter reflects ----’s feelings about the District’s middle school and about . ---- did not testify during this impartial hearing and, therefore, was not subject to cross-examination. I have found that the letter lacks probative value towards the determination to be made herein. T. 774-778. Matter of ---- v. School District

38

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE. 20 U.S.C. § 1400(d)(1)(A); See Schaffer v. Weast, 126 S. Ct. 528, 531 (2005); Bd.

of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); See 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320. 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).

A board of education may be required to reimburse parents for their expenditures for private educational services, unilaterally obtained for a student by his or her parent, if:

(1) the services offered by the board of education were inadequate or inappropriate; (2) the services selected by the parent were appropriate; and (3) equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Cerra

v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA. Id. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have Matter of ---- v. School District

39 borne in the first instance had it developed a proper IEP. Id. at 370-71; See 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148. Application of the Bd. of Educ., Appeal No. 05-073.

The three-pronged “Burlington test” applies to both approved and non-approved private schools. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

The federal and state statutes and regulations, concerning the education of students with disabilities, provide for a collaborative process between parents and school districts in planning and providing appropriate special education services (See Schaffer, 546 U.S. at

53; Cerra, 427 F.3d at 192-93). The "core of the statute" is the collaborative process between parents and schools, primarily through the development of the IEP. See Schaffer, 546 U.S. at 53. "An IEP must satisfy a range of detailed procedural requirements.” A.A. v.

Philips, 386 F.3d 455, 459 (2d Cir. 2004); See 20 U.S.C. § 1414(d); 8 NYCRR 200.4(d)(2);

A.A., 386 F.3d at 459, n.1. However, while school districts are required to comply with all IDEA and state procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli

v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007); Application of a Bd. of Educ., Appeal No. 05-058. If a procedural violation of the IDEA is alleged, a hearing 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 C.F.R. § 300.513(a)(2); 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). Matter of ---- v. School District

40

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i); See also 34 C.F.R. § 300.513(a); 8 NYCRR 200.5(j)(4). Substantively, a school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." 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; See also Thompson R2-J Sch. Dist. v. Luke P., 2008 WL

3984361, at *4 (10th Cir. Aug. 29, 2008). A school district is not required to provide “every special service necessary to maximize each [disabled] child's potential.” Cerra, 427 F.3d at 195, quoting Rowley, 458 at 199; See Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

Rather, to fulfill its substantive obligations under the IDEA, 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]; Perricelli, 2007 WL 465211, at *15.

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs; 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i), establishes annual goals related to those needs; 34 C.F.R. § 300.320(a)(2); Matter of ---- v. School District 41 NYCRR 200.4(d)(2)(iii), and provides for the use of appropriate special education services.

34 C.F.R. § 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. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

An IEP must include a statement of the special education and related services, and supplementary aids and services, to be provided to, or on behalf of, the student, as well as a statement of the program modifications or supports for school personnel that will be provided to the student. 34 C.F.R. § 300.347(a)(3); See 8 NYCRR 200.4(d)(2)(iv). Such education, services and aids must be sufficient to allow the student to advance appropriately toward attaining his or her annual goals (34 C.F.R. § 300.347(a)(3)(i); See 8 NYCRR

200.4(d)(2)(iv)(a). "[S]pecial education and related services must be provided in the least restrictive setting consistent with a [student's] needs." Walczak v. Florida Union Free Sch.

Dist., 142 F.3d 119, 122 (2d Cir. 1998); 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R.

§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];

G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F.

Supp. 2d 384, 388 [S.D.N.Y. 2009]. Matter of ---- v. School District

42

A CSE must afford a student's parents a meaningful opportunity to participate in the development of the student's IEP. Application of a Child with a Disability, Appeal No. 96-

31. The official interpretation of the Federal regulations implementing the IDEA indicates:

The parents of a child with a disability are expected to be equal participants along with school personnel in developing, reviewing and revising the child's IEP. This is an active role in which the parents (1) participate in the discussion about the child's need for special education and related services, and (2) join with the other participants in deciding what services the agency will provide to the child (34 CFR Part 300, Appendix C, Question 26).

In referring to that interpretation, the Office of Special Education Programs of the U.S.

Education Department has nevertheless opined that:

... [W]e recognize that the desired consensus among equal participants is not always possible. Where an open discussion does not lead to agreement on the contents of the IEP, the local educational agency has the ultimate responsibility for crafting the IEP (EHLR 211: 436).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The DOE has established that the program and placement offered to ---- for the 2011-2012 and 2012-2013 school years was appropriate.

The Parents did not raise specific procedural challenges to the creation of the IEP’s.

The composition of the CSE was not contested by the Parents. Aside from the CSE’s ultimate program recommendation contained in the IEP, the remaining content did not face any substantive objection. The IEP’s reflection of ----’s present levels of performance and Matter of ---- v. School District

43 individual needs, as well as the goals developed for the coming school year, were not disputed. A review of the IEP’s, and the testimony presented regarding their creation, leads to the finding that they were developed consistent with the provisions and requirements of the IDEA and the New York State regulations. It was sufficiently established that the IEP’s accurately reflected the results of all evaluations and testing, and set forth ----’s then-current levels of performance and areas of need in all realms. In addition, the IEP’s contained appropriate measurable goals. 8 NYCRR § 200.4(d)(2)(i) and (iii).

The CSE met on May 3, 2011, to plan for ----’s 2011-2012 school year, when she would transition into the District’s middle school. The CSE included several members currently working directly with ----, including her fifth grade special education teacher, her therapist, her therapist and her . The CSE reviewed and considered four triennial evaluations conducted by the District during that school year, a private evaluation provided by the Parents, and a letter provided by the Parents from a private working with ---- The CSE also considered the transition from elementary school to middle school and the changes in the schedule and programs offered. Ms. reported at the meeting that ---- had a great fifth grade year, had progressed nicely towards her goals, and had made gains in all academic areas.

This progress was made while participating in an ICT class with Ms. and a general education teacher, and twenty-one students, five of whom were special education students. As Ms. and Ms. described, the ICT and consultant teacher classes recommended would provide ---- with extra special education support while allowing her to be educated with her general education peers. The special classes recommended are smaller and designed specifically for classified students. The support Matter of ---- v. School District

44 and skills special class is taught by the same special education teacher from the ICT and consultant teacher classes. This allows consistency, great familiarity with the student’s needs, and comfort for the student. The related services of therapy and would address ----’s needs in those areas.

Ms. , who provided to ---- during fourth grade and conducted her evaluation in fifth grade, also supported ----’s participation in the recommended program in the middle school. She felt that ---- would have more support in the middle school than she had in elementary school, and that she would be well-served by the house model. Ms. believed that it is important for ----’s social skills development to be educated and to interact with her mainstream peers.

Upon receiving a letter from the Parents which included an updated report, the CSE reconvened. The CSE reviewed the report, as well as updated progress information from Ms. . Ms. continued to report, as she did during the meeting of May 3, 2011, that ---- had progressed throughout the school year in all areas. While the CSE provided some clarification to the IEP for the 2011-2012 school year, its recommendations remained the same.

The CSE met on March 29, 2012, to plan for ----’s 2012-2013 school year. In addition to the District’s participants, the CSE included ----’s reading teacher, therapist and educational advisor from . The CSE reviewed progress reports submitted by in all areas, as well as a classroom observation report prepared by Ms.

The participants discussed ----’s levels of performance, continuing needs, and progress towards all goals from the 2011-2012 IEP. The goals for the 2012-2013 IEP were formulated based on information provided by the participants and the reports Matter of ---- v. School District

45 submitted. Although the Parents asked the CSE to consider a full-time special education program, the CSE determined that the recommended program could address ----’s needs in the least restrictive environment.

The model of the District’s middle school is designed to offer a smaller and more nurturing experience to middle school students, rather than requiring them to navigate a large building with a large student population. The four core subjects are scheduled consecutively, and held within the house, in order to minimize the number of transitions during the school day. Students are not pulled out of their academic classes for related services. The house system allows for a team of educators to work as a unit and to become very familiar with the students they serve. It was persuasively demonstrated, through the testimony of Ms. and Ms. , that this setting would offer ---- the small environment, consistency, and special education support she required. Significantly, it would do so in the least restrictive environment.

I find that the Parents were afforded an ample and appropriate opportunity to make their views known to the CSE at every step, and to discuss all issues. The fact that the CSE did not accede to their wishes, does not mean that they were denied a meaningful opportunity to participate (Application of a Child with a Disability, Appeal No. 93-41;

Application of a Child with a Disability, Appeal No. 94-31).

I find that the CSE's recommendations of a program of integrated co-teaching classes, consultant teaching services, special classes, and related services was reasonably calculated to enable ---- to receive educational benefits, and, thus, the District offered ---- a FAPE in the least restrictive environment for the 2011-2012 and 2012-2013 school years.

It is therefore unnecessary to reach the issue of whether was appropriate for ---- or Matter of ---- v. School District

46 whether equitable considerations support the Parents' claim, and so the necessary inquiry is at an end.

ORDER

The Parents’ request is denied.

Dated: November 19, 2013 ______________________________

AMY LYNNE ITZLA, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parties have 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. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal can be found on the Office of State Review website: www.sro.nysed.gov/appeals.htm. Matter of ---- v. School District

47

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2013

Mother — Parents

Father — Parents

Esq. Attorney — Parents

Legal Assistant — Parents

Esq. Attorney — District

Director of Special Education — District

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

Mother — Parents

Esq. Attorney — Parents

Legal Assistant — Parents

Esq. Attorney — District

Director of Special Education — District

Special Education Teacher — District

School Psychologist — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 28, 2013

Mother — Parents

Father — Parents

Esq. Attorney — Parents

Legal Assistant — Parents

M.D. Psychiatrist — Parents

(via telephone)

Educational Consultant — Parents

(via telephone)

Esq. Attorney — District

Director of Special Education — District

Assistant Director of Special Education — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 18, 2013

Mother — Parents

Father — Parents

Esq. Attorney — Parents

Legal Assistant — Parents

Educational Advisor — Parents

Esq. Attorney — District

Matter of ---- v. 48 — District

Director of Special Education — District

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 7, 2013

Mother — Parents

Father — Parents

Esq. Attorney — Parents

Legal Assistant — Parents

Special Education Teacher — Parents

(via telephone)

Esq. Attorney — District

Director of Special Education — District