New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 7, 2014

March 7, 2014

March 26, 2014

Actual Record Closed Date: June 4, 2014

Hearing Officer: Elise Kestenbaum, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 7, 2014

Esq. Attorney — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 7, 2014

Esq. Attorney — Student

Parents

Principal, (via telephone) — Student

District Representative — DOE

DOE Office of Early Childhood (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 26, 2014

Attorney — Student

Parent (via telephone) — Student

Educational Consultant — Student

CSE District Representative — DOE

INTRODUCTION: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the parent (“Parent”) on behalf the student (“Student”), through her attorney, Esq. of the law offices of , L.L.P., by filing a Due Process Complaint dated September 27, 2013 with the District. P-A. I was appointed as an Impartial Hearing Officer on September 30, 2013.

The Parent is alleging that was denied a free and appropriate public education (“FAPE”) for the 2013-14 school year and is seeking funding for tuition for his unilateral placement at for said year.

There were three (3) days of hearings in this matter. Hearings were conducted on February 7, March 7, and March 27, 2014. Extensions were granted in this case making the final compliance date June 13, 2014. A list of Exhibits is attached as Exhibit A. The Parent, the District and the IHO submitted exhibits.

BACKGROUND

This case involves student. During the 2013-14 school year, . attended where the Student was unilaterally placed by his Parent.

With respect to the 2013-14 school year, an Individualized Education Program (“IEP”) was developed on April 16, 2013. Pursuant to the April 16th IEP, the following recommendations were made:

1. Special Class, Specialized School, 35 times per week, one period each time, language of service: Yiddish;

2. , two times per week, 30 minutes each time, language of service: English;

3. , , one time per week, 30 minutes each time, language of service, English;

4. Therapy, two times per week, 30 minutes each time, language of service:

Yiddish; and

5. Therapy, , one time per week, 30 minutes each time, language of service:

Yiddish. The placement shall be for the 12 month school year. D-2.

The District issued a Notice of Recommendation on June 11, 2013. D-8. It stated that the offered school shall be Transition Center Class V31. The Parent sent a Notice of Rejection on July 8, 2013 indicating that the placement was not appropriate and she was unilaterally placing the and seeking public funding for his placement. P-C. She also sent a leter of unilateral placement on June 17, 2013. P-A.

The Parent entered into a Tuition Contract for on July 30, 2013. P-D.

The Parent filed a Due Process Complaint dated September 27, 2013. I was appointed as an Impartial Hearing Officer on September 30, 2013.

POSITION OF THE PARTIES

District’s Case

The District called one witness, and placed nine (9) documents in evidence. D-1 – D-9. She has a Master’s degree in social work and is a licensed master’s level social worker and also has a bilingual certification in Haitian Creole. She is presently employed as a full social worker at the Office of Early Childhood and prior to that was at the Committee on Special Education (CSE) office and before that at an elementary school on a school based support team. Tr.32.

She is familiar with . since he was one of her cases and she performed an observation of him . She had 150 cases last year. Tr. 34. She observed approximately six students over the past two years. Tr.36. The Student’s classroom is on the fifth floor and the students usually take the stairs since the elevator is very small and can no accommodate more than four people. Tr. 37. She recalls that she spoke with teacher but she doesn’t recall the substance of the conversation. Tr. 37. Ms. stated that she observed a social skills group and the students were broken up and paired and he was playing Connect 4 with another student and they were playing nicely and taking turns. Tr.

38. There was one teacher and two assistants in the room and they were walking around the room helping the students. Tr.38 . She also observed them in computer class with . There were six computers in the room but she doesn’t recall if there were six students. D3.

Subsequent to the observation, Ms. participated in an IEP meeting for J.H. on April 16, 2013. D-2. She stated that in addition to the observation, they always refer to current evaluations that might have been conducted, as well as reports received from the school and goals received from the current providers that are servicing the child. Tr. 49. The goals for the academics are created from the teachers’ assessments that were provided as part of the package, and they review the goals with the teacher and parent at the meeting. Tr. 41. The parties at the IEP meeting besides herself were the Parent; the teacher from the CSE; Dr. ; the psychologist; . Tr. 41; D-2. She didn’t recall why J.H.’s classroom teacher did not participate in the meeting conducted the assessment and he was present at the meeting. Tr. 43 ’s classification was intellectual disability. Tr.

44. The recommendation was for a special class in a specialized school, District 75, 12:1+1 and the service language was to be Yiddish, as well as related services of , two times per week, 30 minutes per day, service language: English; Physical Therapy, one time per week,^[30] minutes, service language: English; Therapy, , two times per week, received and with the teacher on the IEP team. Tr. 50. The academic goals were created based on the assessment provided by . Tr. 50. They created goals based on Rabbi Horowitz’s report and reviewed them with the Parent and Rabbi Horowitz at the meeting. Tr. 50. All of the related service goals were created by the respective related service provider and discussed at the meeting. Tr. 51. There are also transition goals on the IEP that were created in collaboration with the teacher and the school at the IEP meeting. Tr.

57. Ms. stated that the Parent is given an opportunity to voice any concerns or objections at the meeting but she doesn’t recall if any were raised. Tr. 52. She also doesn’t recall if agreed or disagreed with the recommendation. Tr. 53.

On cross examination, Ms. testified that the academic goals were drafted by herself and the teacher on the IEP team, Ms. prior to the IEP meeting with the reports that were received from the school. Tr. 54; D-2. She recalls having a discussion that if the Yiddish bilingual program was unavailable a bilingual paraprofessional would be available and did not recall whether the Parent or voiced objections to this. Tr. 55.

Ms. testified that a bilingual Yiddish classroom would be most appropriate for the student. Tr. 57. However, she also said that it would be appropriate for him to have a bilingual paraprofessional since she/he would be able to reinforce the secondary language if necessary. Tr. 57. Ms. testified that Evaluation it stated “[ .] speaks in …English and Yiddish, and today’s evaluation was conducted in both Yiddish and English. [ ] responds primarily in English although Yiddish translation enhances his performance.” Tr. 58; D-6. She testified that based on this, they felt the temporary interim placement of a paraprofessional would be sufficient. Tr. 58. It is referred to as “temporary” because when a child’s assigned an interim placement paraprofessional, it is temporary until the Board of education can create a bilingual class or locate a bilingual class that is appropriate for the student. Tr. 58. Ms. testified that although the box marked yes is not checked on page 13 of D-2 with respect to an interim placement paraprofessional, the sentence would not appear if the child was not bilingual. Tr. 59-60.

It is also noted that under Special Needs Relating to Special Factors on page 2 of D-2, the yes box is also not checked. Tr. 61. Ms. testified that she does not know if a functional vocational assessment was conducted for his meeting and it is not indicated on the IEP. Tr. 63; D-2. She also stated that the reading and math levels on the IEP were derived from a combination of either the reports, the testing that was administered, the psycho-educational, and/or the combination of the reports that were received from the school. Tr.66; D-4.Specifically, the portion of the Present Levels that states that states vocabulary, sight words, spelling, and comprehension is at a mid-kindergarten lvel was taken from Mr. report. Tr. 66-67; D-4. Also the reading and math levels were based on the psycho-educational evaluation D-6 (page 5). It specifically states that “his academic skills were measured today by the WJIII Achievement test. [ .]’s overall academic functioning is at a high kindergarten – beginning 1st grade expectancy level”. D-6, Tr. 68. On page 12 of the IEP under present instructional levels the grade was based on the psycho-educational evaluation, and Ms. testified that the levels on the Present Levels of Performance were taken from Report. Tr. 68; D-2. Parents’ Case

There were three witnesses for the Parents, and the Parent. The Parent placed twenty-one (21) documents into evidence. P-A-- P-U.

has Masters’ degrees in special and general education and school building leadership and state certification from birth to grade two in special education and general education from grades one to six with a bilingual extension in Yiddish. Tr. 71. He worked at as a teacher and then five years ago became assistant principal and three years ago, principal. Tr. 73. He also works as a SEIT therapist for and provides services for children up to age five.

As principal, he interviews new students, evaluates old students, supervises teachers, assistant teachers, provides professional development, etc. is a forty students, 31 of whom . Their mission is to have very student exit the program and become independent in their community and everything they teach is with that goal in mind. Tr. 74. Therefore, they provide each child with an individualized academic curriculum based on their needs. Tr. 74. In this regard, they also have a pre-vocational and vocational program. With the help of job coaches, they go into the community. Tr.

75. Another important component of is socialization and they provide a full curriculum of social skills with many opportunities for mainstreaming so they can model behavior and feel comfortable with the mainstream students. Tr. 76. The students in the regular school run on the same schedule as the students in so they walk in together, go home together, go to lunch and gym together and they have buddy time twice a week from 11:45 to 12:30. Tr. 78. The mainstream yeshiva is called for seventh and eighth graders and there are approximately 125 students. Tr. 81.

is familiar with since he evaluated him when he entered the program in 2009 and ever since that time, he has been involved in his education needs and social, emotional, and behavioral needs. Tr. 82. He interacts . on a constant basis. He is in his classroom many times during the day. Tr. 82. He has open communication with all parents and he can be reached at any time they need him. Tr. 83.

testified that . first entered the program, the Parents had indicated that he was not progressing academically and he was acting out behaviorally. Tr. 83 was in the bilingual Yiddish program in the public school before . Tr. 84. . is in a class with 12 students, one teacher and one assistant teacher. Tr. 85. Up until this year, . was paired with a group younger than his chronological age because of his academic levels. Tr. 86. He is on the lower level of the class he is currently in. Tr. 86. They put him in a class with peers that were older and more verbal this and so that he could model their expressive language. Tr. 86. As a result, the class is broken up into three groups and he is on the lowest level with another student. Rabbi stated that “There are 12 kids in the class so we have them grouped 6 and 4 and 2, so we are catering to his needs socially and academically.” Tr. 87. He is grouped with peers that are well behaved and well mannered. Prior to this, he was placed with his age peers but was the oldest in the class. They felt that it was important for him to learn how to interact with students at his age level so moved him into a different class. Tr. 88. Rabbi stated that academically they are working with him one-on-one. The age range of the students in his class is 14 to 19 and 17. Tr. 89. There are four students between the ages of 17 and 19. Tr. 90.

.’s 2013-14 schedule (P-E) was developed by with the help of his teachers and related services providers. Tr. 91. He receives Speech, three times a week, 30 minutes each time, two times individually and one time in a group in Yiddish and he receives Occupational therapy, two times per week for 30 minutes each time, , and Physical therapy, one time a week for 30 minutes, individually. Tr. 91 is in constant contact with the related service providers. has his certification in speech and they are working on the Student’s expressive language, clarity of speech and ability to stay on topic. Tr. 92. In Occupational therapy, he is working on his ADL skills (i.e. tying his shoelaces, zippering his coat, etc.) and his writing skills. He is making improvement on his ADL skills and is able to write all the letters and space them and is working on typing skills. Tr. 93. With the physical therapist, they are working on strengthening his gait. stated that he has to learn how to walk straight and walk up steps since they are on the fourth floor. Tr. 93. They are also working on his ball skills and he is showing improvement. Tr. 93. The physical therapist is also certified. Tr. 94.

With regard to class, the majority of the class is taught in Yiddish and most of the students are Yiddish speaking. Tr. 94. For the students that are not, they do everything in English as well. Tr. 101. testified that having a Yiddish classroom is vital for . since it is the language he speaks at home and in his community. Tr. 94. The morning teachers are and the afternoon teachers are Tr. 96. The head teacher manages the behavior and the structure of the class and individualizes the curriculum and supervises the assistant teacher. The assistant teacher provides help to the head teacher and is capable of working with a group of students. Tr. 97. The parents are provided with two educational reports per year which are prepared by Rabbi Horowitz with the help of the teachers. Tr. 97; P-M. For reading, he is presently decoding on a first grade level. They assessed his level in reading through the Brigance testing which they do three times a year. Tr. 100. The testing at the beginning of the year is done to create goals and let the teachers know the level the student is at, and mid-year they tweak their goals. Tr. 101.

With respect to reading, testified that the two teachers handle the larger groups and the therapist takes over the smaller group. Tr. 103. stated that the related service providers come in when we need them to fill a slot. Tr. 103. In connection with math, he started at the kindergarten level in September and is now at the beginning of first grade. Tr. 104. He can now add up to 14, where before he could only add to 12. Also, he can subtract up to the number six where before he couldn’t subtract. In addition, his money skills have improved. Tr. 105.

In reading, specifically vocabulary, he has moved up from a lower first grade level to a mid-first grade level and his sight word recognition has moved from a kindergarten level to a low first grade level. Tr. 105. Decoding, he has gone from a kindergarten level to upper first grade and reading comprehension, he has moved from a kindergarten level to the beginning of first grade. Tr. 106.

With respect to pre-vocational training is using a program created goes through detailed steps in the work place with role plays, etc. Tr. 106. They do not, however, feel he is ready for vocational training yet. Tr. 107. He also works with someone during buddy time two times a week. They buddy is between 12 or 13 years old. Tr. 109. stated that even though the “buddies” are younger, they have many more skills. Tr.109.

Geography Map Skills involves creating pictures of the community and learning how to find places in the community. Tr. 111. His class on safety skills goes over 300 objects in the home and their level of safety. It is very . Tr. 111.

The call and meeting log is a wrap up of all the formal communications that the teachers and providers had. P-K. Every two months, they get a formal call from the teachers to discuss the students’ progress and in January there is a formal meeting with the teachers, service providers and parents present. Tr. 113.

believes is an appropriate placement for the 2013-14 school year. He feels the Yiddish speaking environment and the academic and social components as well as the pre-vocational program are crucial for him and they are seeing progress. Tr. 115.

attended the IEP meeting for . on April 16, 2013 by phone. Tr. 116. provided the District with the full evaluation and all their reports from the related service providers. Tr. 117. stated that they recommended a District 75 program in a school without Yiddish instruction which he felt was inappropriate. Tr. 117. He stated that they said they were going to provide a paraprofessional for Yiddish and Rabbi Horowitz feels that when the teacher teaches and the paraprofessional has to repeat everything that the teachers says, information is lost and it will be difficult for the student to learn. Tr. 117. He stated that “He has to be taught by teachers that know his language and are fluent in his language and the language should be the first language”. Tr. 118.

On cross examination, Rabbi Horowitz stated that he works as a SEIT for in the summer. There is a 12 month program with the summer being a camp that operates upstate and it is run by another principal, . Tr. 120. They are not requesting tuition reimbursement for the summer program. Tr. 121.

When in 2009, his skills were very basic on a pre-kindergarten level. Tr. 171. In describing that the only is Tr. 122. Although he did not express these feelings to , he stated that he sees how he acts around other students. He does not feel he needs Tr. 123.

stated that the material classes is in English, but the oral delivery is in Yiddish. Tr. 124. They teach in Yiddish and then in English. The students who speak Yiddish grasp it in Yiddish and the English speaking students grasp it in English. Tr. 125.

He is not aware of any textbooks in Yiddish. Tr. 126. The materials for reading, math, etc. are in English but the delivery is in Yiddish. Tr. 126. The religious part of the day is from 9:00 to 11:00 during the week and on Sunday from 9:00 to 12:15 and the prayer is in Hebrew, the rest is in English and delivery is in Yiddish. Tr. 127. He stated that 15-18% of day is religious. Tr. 128.

None teachers are certified teachers but two are pursuing their Bachelor’s degrees. Tr. 128. testified that is mainstreamed “throughout the day”. Tr. 129. He indicated that he is mainstreamed for buddy-time, lunch and physical education. Tr. 129. stated that pairing old was appropriate because they look at grade level rather than age and target the skills they want him to learn. Tr. 130. For language arts, reading comprehension and fluency, it is given twice a week for 45 minutes but he only gets a full session once a week and 15 minutes on the other day. Tr. 131. stated that he is taught functional life skills at lunch. Tr. 133.

Social skills, pre-vocational skills and safety skills are taught in a group. Tr. 135. They split them into smaller groups for academic subjects.

The next witness . He obtained a Bachelor’s degree and Master’s degree in special education and received a certificate in administration supervision of special education schools and was licensed as an assistant principal, principal and superintendent of special education schools. Tr. 148. He served as a teacher for special education students; he then became an educational evaluator and then a District representative for the CSE, Region 6. Tr. 150. He is presently employed as a consultant for private parents and agencies and also . Tr. 151. He was hired in January to assist the school in assessing the curriculum, observing students, assessing the curriculum, observing students, assessing the appropriateness of the skills being taught, speaking with related service providers and teachers, ongoing training for staff members, and using his background to assist the education of these special education students. Tr. 152. Part of his consulting work is to participate in impartial hearings. He is being paid as a consultant by the school on an hourly basis for appearing at the hearings; he is not paid by the parents. Tr. 153.

is housed in a mainstream school for typically developing students with no IEPs. Tr. 153. It is on the fifth floor of the school where there are also general education classes. Tr. 153. There are 26 students at and Mr. believes that the mainstream yeshiva is for elementary school through high school and there are several hundred students. Tr.

154. There are also 14 other students that are beyond 21 and participate in full time vocational programs. Tr. 155. There is interaction between the students in three ways:

(1) the lunchroom cafeteria experience; (2) a built-in structured buddy system where the general education students come into the classroom twice a week for academic, social/emotional or life skills, where they work with the students ; and (3) in physical education. Tr. 156-157. In addition, throughout the school year, there are different activities that are shared by all students. Tr. 157. The curriculum covers pre-readiness and readiness skills for reading and math, life skills, activities of daily living, prevocational and vocational skills, computer reading skills, and all of the related services. There are occupational therapists, physical therapists, and speech and language therapists at the school. Tr. 158. Mr. that the religious part of the instruction is in the latter part of the day but he has not been involved in it. Tr. 159.

Mr. testified that most of the faculty is in their thirties and forties. They all are high school graduates and some are in college. He stated that they are all very connected to the philosophy of enabling each student to reach their potential and to grow in terms of their abilities to become independent. Tr. 160. The teachers receive professional development inside school and outside of school through . Tr. 161. Mr. believes that the staff is excellent in the education of these special education students.

Mr. . since he did an educational observation of this student on February 27, 2014. Tr. 162; P-U. Mr. stated that the program is “English and when necessary, Yiddish because a lot of students speak Yiddish as well”. Tr. 163. When he says “when necessary” he explained that when a teacher is trying to elucidate something to a student that he obviously does not understand, they might use both English and Yiddish. Tr. 164. He stated that most of what he observed with the Student was in English and he was there from late morning to early afternoon. Tr. 162; Tr. 164.

At his observation, . was in a life skills class with approximately nine other students and they were working in workbooks and learning about firefighters in the community. . was involved in the exercise and the teacher and assistant teacher were circulating the room. He was participating and there were times when his speech was unclear, garbled and there were but the teacher seemed to understand him. He also seemed to have his mouth open most of the time. He was concentrating on what the teacher was saying and his behavior was good, however, he would at times rock back and forth. Tr. 167. There was a discussion about what you do with matches, and there were pictures for identification. At a specified time, ten general education students came in and took seats in front of each student and the general education students continued to work with the students on their workbook activity. Tr. 168. He stated that the ages of the Down’s syndrome students in the class were in the 15-17 age range and the general education students were in seventh and eighth grade. Tr. 169. Mr. then observed J.H. in the lunchroom. He sat with a mixture of general and special education students. Tr. 171. He made note of the comfortable social spacing between each student. Tr. 172.

Mr. believes that the mainstreaming opportunities available for are extremely important and good for his self-esteem. Tr. 173. He also thought the staffing ratio in the classroom of 10 students to two teachers was appropriate. Tr. 174. Based upon his review mid-year education report and conversations and the teacher, there was improvement in most areas including reading, math, and pre-vocational skills. He believes that the program for is very effective with respect to his ability to use functional skills (i.e. telling time, calendar skills, word recognition skills, safety skills, computer skills). In addition, he thinks the integrated inclusion programmatic part of the school is highly effective for his overall educational experience. Tr. 177.

On cross examination, Mr. testified that he began his position on January 7, 2014 and has testified three or four times since then. Tr. 180. He never worked directly with J.H. He dealt with when he worked for the District in two capacities: (1) representing the District at Impartial Hearings and (2) requesting settlements from the Office of Legal Services. Tr. 180. Mr. stated that during his observation, the majority of the lesson was in English. Tr. 183. Mr. stated that the purpose of his observation was to give a general snapshot of what was doing during that time frame. Tr. 191. He stated that it was done as part of his ongoing consulting with the school not for the purpose of this testimony. He stated that he didn’t make any recommendation about the student because he wasn’t asked to. Tr. 191; P-U.

Mr. testified that the 12 and 13 year olds that are chosen are screened by both and by the principal of the general education school and their parents have to give permission. Tr. 195. Mr. testified that the teachers are excellent in terms of monitoring students, using specific reinforcements, verbal praise and in their involvement with the students. Tr. 197. Mr. testified that he cannot give an opinion as to whether the District 75 program is appropriate since it is dependent on the specific school he was assigned to since they are all different. Tr. 199. He also finds it essential . that there be an inclusion program like he has . Tr. 199.

The last witness was the mother. She stated that and began an early intervention program including home-based therapy at four or five months of age. Tr. 203. He then went to was there for five or six years from age six to 13 until he went to . Tr. 204. This is his fourth year at . Tr. 204. Although he was in a twelve month program, he went to camp in the summertime. Tr. 205. She finds the teachers and staff at very capable, devoted, and understanding and her son loves it there. Tr. 206. She stated that they are teaching him time and many skills and addition and subtraction and in reading he is working on sight words and can read picture books on level. Tr. 207-208. She indicated that he is progressing slowly. Tr. 207. Socially, she testified that he gets along well with the boys. He was with younger boys due to his academic levels but they moved him up to be with students of the appropriate age level. Tr. 208. There is good communication between the teachers, parents, and therapists. Tr. 208. The Parent believes that an appropriate school for him since it’s a Yiddish speaking program and he has mainstream opportunities and he can pick up language and other things from typically developing peers. Tr. 209. He left . Tr. 210.

The Parent testified that she entered into a contract for enrollment for J.H. in July 2013 because she wanted him to go there and reserved a spot for him. Tr. 211. The tuition is $39,800 for the ten month program and she hasn’t paid anything because she can’t afford it. Tr. 211. She understands that she is responsible for it if she does not prevail at the hearing. Tr. 212. She makes $13,000 and her husband is not employed. Tr. 212; P-E. The Parent testified that in the past years, she brought impartial hearing requests and the District .’s tuition as a result of Carter funding. Tr. 216.

The Parent testified that she attended the IEP meeting on April 16th by phone. Tr.

217. She stated that the CSE had the reports stated that a 12:1:1 program was recommended for J.H. for the 2013-14 school year. Tr. 217. He was in that size class at . They received a Final Notice of Recommendation for placement at P-B. She visited the school in June and met with the principal. She saw the classroom without students and then went to see the students in the auditorium and didn’t students. Tr. 220. She then wrote a letter to the District with her objections and did not receive a response. Tr. 221.

On cross examination, the Parent testified when they put him in junior high she didn’t feel it was a safe place It was noisy and there were a lot of teenagers. Tr. 222. The Parent stated that the instruction is in Yiddish. Tr. 228.

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]). Prong 1 – Appropriateness of District Program The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep’t of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Childwith a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No.93-9).

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

The Parent alleges that the District failed to provide FAPE . since she believes that his placement special class in a special school in a bilingual class or with an alternate placement Yiddish para is inappropriate. Based upon the hearing record, I believe that the District has met its burden its burden in demonstrating that the placement was appropriate and was designed to to receive educational benefit.

With respect to the recommendation for class in a District program, Ms. testified that it was made based on the low testing score and his disability and was made with the entire team including his teacher at as well as the evaluative reports and information presented at the CSE meeting. She also testified that he was currently in a 12:1+1 program in his private school. Tr. 48. In addition, in the Impartial Hearing Request the Parent stated that “[ and as a result exhibits , and . This diagnosis also results in a ”. B-2. In Notice of Unilateral Placement letter from the Parent, it states that “[ across all areas of learning.” P-A. With respect to other options considered, a special class in a community school was considered and rejected since the CSE determined that this setting would not address his significant global delays. Accordingly, a District school was recommended in a program where his significant . Home instruction was also suggested and rejected as too restrictive. Therefore the CSE meaningfully considered the appropriate programs on the continuum and determined that the placement recommended was the least restrictive environment based on his needs at the time.

The IDEA requires that a student's recommended program must be provided in the

LRE (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 P. v. Newington Bd. of Educ., 546 F.3d 111 [2d Cir. 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti, 995 F.2d at 1215; J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobel, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]). The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 CFR 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 CFR. 300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 CFR 300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, 8home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 CFR 300.115[b]).

To apply the principles described above, the Second Circuit adopted a twopronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti v. Bd. of Educ., 995 F.2d 1204, 1217-18 [3d Cir. 1993]; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]). Based on the hearing record and the Student’s global delays, a 12:1+1 program in a District 75 school is the LRE to meet this child’s needs at this time.

With respect to the annual goals and short term objectives, I credit the testimony of Ms. . She testified that at the meeting the academic goals were drafted by herself, and the teacher on the IEP team prior to the meeting with the reports from and were reviewed at the meeting and the Parent. Tr. 51. She also testified that the transition goals were created in collaboration with the teachers and the school at the IEP meeting and all of the related service goals were created by the related service providers and discussed at the meeting as well. Tr. 51. She stated that the Parent was given an opportunity to voice her objections at the meeting and she did not recall any being raised. It should be noted that with respect to transition from school to post school activities, the IEP states that “ living.” D-2. This indicates that prior to addressing the specific postschool activities, these items must be addressed and are being addressed in the IEP at this time. The fact that Ms. indicated that she did not know if a functional vocational assessment was conducted (Tr. 63) is however, I do not believe that this would rise to the level of a denial of FAPE based on the discussion of transition services and goals at the CSE meeting and their inclusion in the IEP. D-2.

In connection with the recommendation for a bilingual class, the CSE felt that this would be most appropriate for the Student, however, if one was not available, they felt that a bilingual paraprofessional would be able to . Ms. testified that on the Student’s Evaluation from 2012 it stated that speaks in both English and Yiddish and that he responds primarily in English although the Yiddish translation enhances his performance. Tr. 58; D-6. Therefore, based on this, Ms. stated that the CSE believed that the interim para would be sufficient if they were unable to locate an appropriate bilingual classroom. Tr. 58. In addition, although the Parent indicated in her letter dated July 8, 2013, that it wasn’t clear when she visited the school whether the school would have a bilingual Yiddish class or a Yiddish para, and that she didn’t think a Yiddish para would be appropriate, the Second Circuit has been clear that “where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented" (A.M., 2013 WL4056216, at *13; see R.B. v. New York City Dep't of Educ., 2013 WL 5438605, at *17 [S.D.N.Y. Sept. 27, 2013]; E.F. v. New York City Dept. of Educ., 2013 WL 4495676, at *26 [E.D.N.Y. Aug. 19, 2013]; M.R. v. New York City Bd. of Educ., 2013 WL 4834856, at *5 [S.D.N.Y. Aug. 14, 2013] [finding that the argument that the assigned school would not have been able to implement the IEP is "entirely speculative"]; N.K., 2013 WL 4436528, at *9 [citing R.E. and rejecting challenges to placement in a specific classroom because "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan'"])

Based on the foregoing, I find that the April 2013 CSE developed an IEP that accurately reflected the student’s special education needs (see 34 300.306[c][2]; 8 NYCRR 200.4[d][2]) Accordingly, I find that the CSE’s recommendation of a special class in Yiddish or with an interim placement bilingual para, related services and the program accommodations and strategies were designed to provide the Student with sufficient individualized support such that his IEP was reasonably calculated to enable the Student to receive educational benefit for the 2013-14 school year.

Therefore, for all of the foregoing reasons, I find that the District satisfied its burden to prove Prong 1 and therefore, FAPE was provided for the 2013-14 school year. Hence, it is not necessary to consider Prongs 2 and 3, however, I will do so in order to complete the record. See Application of a Child with a Disability, Appeal No. 02-052. Prong 2 – Appropriateness of Parent Placement

Under the second prong of Burlington, the Parents bear the burden of proving the appropriateness of the Parent’s unilateral placement . In order to meet that burden, the Parent must show offered an educational program designed to meet J.H.’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 R.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 Parent has not met her burden in showing was an appropriate placement for . for the 2013-14 school year and met his educational needs. In order to determine that the Parent’s unilateral placement is appropriate, it is necessary to look at the services and programs J.H. receives at the unilateral placement to see if they were reasonably calculated to enable the Student to receive educational benefit.

The “Readiness-Personal Data Response” that the District had received from consists of checked responses to achievements such as a checklist of the colors and body parts recognizes with no narrative whatsoever. It does not give us an understanding of what strategies are being used to to receive academic benefit. D-4. The Mid-Year Educational Report (P-M) with respect to academics lists the curriculum which includes “reading, decoding, reading comprehension, spelling, handwriting, math, time, money, science, social studies, computers, history, physical education, current events, social skills, hygiene, safety, and prevocational skills”, but does not discuss in depth what they are doing in each area (i.e. decoding) to meet his specific needs. As noted above, the student has a diagnosis and also with an intellectual disability by the CSE and cognitively , he is . An appropriate placement must adequately address these needs and the Parent did not meet its burden to show that it did. Although a private school need not necessarily employ certified special education teachers, none of the teachers have college degrees at this time and there is no indication that the teachers have had appropriate special education training to work with a student provide him with academic benefit. The 2013-14” was generic for all students in the program. P-L. In order to meet her burden, no teacher presented evidence of the methodologies that are being used to meet his needs in the classroom. With respect to academics, testified that is in a class with 12 students, a teacher and an assistant teacher and that the class is broken up into three groups, 6, 4 and 2, and that he is in the group of two because he is in the lowest level and with respect to reading. When asked how they accommodate all three groups, testified that two teachers handle the larger groups and, when they need to, they bring in a related service provider to fill in the slot for group. Tr. 103. Besides the academic training, this does not provide consistency for a student with J deficits. A child with requires specialized special education instruction reasonably calculated to enable him to receive academic benefit and there is no evidence that this is the case. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child” (Gagliardo, 489 F3d at 115 [emphasis in original], citing Frank G. , 459 F.3d at 365 quoting Rowley , 458 U.S. at 188-89).Although has indicated that he has made some gains in his that he can now add to 14 where before he could only add to 12, and that his vocabulary has moved from a mid-kindergarten to first grade level, one must look at the totality of the circumstances to determine whether a placement serves a child’s individual needs and this does not. Specifically, if one looks at the evaluation from January 2012, it states academic skills on - D-6. As a result of the reports of , and as indicated on his IEP, in terms of progress, it appears that J.H. is presently at the same level as he was in January of 2012. D-2; D-6.

Although testified that Yiddish speaking and it is important that he be taught in Yiddish, and that even a Yiddish para would be difficult as to whether the class was taught in Yiddish was all over the place. Accordingly, I do not credit his testimony in this respect. At one point, Rabbi Horowitz stated that the material is in English but the delivery is in Yiddish (Tr. 124), yet at another point, he stated that they teach in Yiddish and then in English since there are Yiddish speaking students and English speaking students Tr. 9. Mr. testified, on the other hand, that the program is in English and when necessary, in Yiddish. In describing what he meant by “when necessary”, Mr. stated that when a teacher needs to elucidate something that a student doesn’t understand it is in Yiddish. Tr. 164. He further stated that most of what he observed in when he observed was in English. Tr. 164.

With respect to what part of the day is religious and what part of the day is secular, it should be noted testified that the religious part of the day is from 9:00 to 11:00 on weekdays and on Sunday from 9:00 to 12:15 (Tr. 127) and Mr. , who observed J.H. and has been at the school several times to observe other students, indicated that the religious part of the day is in the latter part of the day. Tr. 159.

It should be noted that with respect to mainstreaming, the program is housed in a mainstream for seventh and eighth grade students (ages 12 and 13). The students in attend lunch and physical education with the mainstream students and have “buddy time” in their classroom with students chosen to work with the students class two times a week. years old and these students are chronologically much younger, the ability to interact with mainstream children and receive their support as their buddies in the classroom is beneficial to the student, since they are in essence tutoring the students and helping them with their work.

In essence, attended the 10 month portion of the program and no testimony was given by the Parent with respect to the summer program and specifically continuing his education over the summer . has indicated that the program is a twelve month program, and he stated that the summer program is at a camp in upstate New York which is run by another principal. He did, however, indicate that the Parents were not seeking tuition reimbursement for the summer program.

Based on the foregoing, I find that the Parent’s placement of is not appropriate to meet his unique needs and provide him with educational benefit at this time. Therefore, I find that the Parent has not met her burden in proving the appropriateness of for for the 2013-14 school year. Prong 3– 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 they’re 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 Parent participated in the April 16, 2013 CSE meeting. After receiving the Final Notice of Recommendation, the Parent visited the placement and sent a letter dated July 8, 2013 indicating why she did not believe it was appropriate for the Student. P-C. Prior to this, on June 17, 2013, the Parent sent a Notice of Unilateral Placement indicating that they were unilaterally placing and seek funding if the CSE did not cure the procedural and substantive defects within the IEP. P-A

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

Based upon the foregoing, I find that the District provided FAPE to J.H. for the 2013-14 school year (Prong 1), the Parent’s placement of is not appropriate (Prong 2), and the Parent cooperated with the District and analysis of equitable considerations offers no basis for ruling against him (Prong 3). Accordingly, the Parent is not entitled to funding from the District for the Parent’s unilateral placement of for the 2013-14 school year.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that:

The Student is not entitled to tuition reimbursement and/or payment of tuition directly for the 2013-42 school year. Dated: June 13, 2014

Elise Kestenbaum mv

ELISE KESTENBAUM, ESQ.

Impartial Hearing Officer EK;mv

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

Parent Exhibits

No. Date Document Pages

A. 6/17/2013 Notice of Unilateral Placement 4

B. 9/27/2013 Impartial Hearing Request 6

C. 7/8/2013 Parent Letter to CSE 1

D. 7/30/2013 Enrollment Contract 3

E. 1/31/20143 Individual Income Tax Return 2

F. 2013/14 Student Schedule 1

G. 2013/14 Therapy Schedule 1

H. undated Summer Program 1

I. 7/13 – 8/13 Summer Schedule 1

J. 2/2/2013 Attendance Record 1

K. misc. dates Call & Meeting Log 1

L. 2013/14 Curriculum 13

M. 1/21/2014 Mid-year Educational Report6

N. 2/2/2014 Report1

O. 2/10/2014 Occupation Therapy Report^[2]

P. 2/12/2014 Physical Therapy Report 1

Q. 9/12/2013 Evaluation Progress Report 11

R. 2/4/2014 Mid-Year Evaluation Progress Report 11

S. 9/12/2013 Career Interest Checklist ^[1]

T. misc. dates Staff Credentials 11

U. 2/27/2014 Formal Educational Observation Repot 5

Impartial Hearing Officer’s Exhibits

I misc. dates Compliance Decisions

District Exhibits

No. Date Document Pages

3. 1/7/2013 Classroom Observation 1

4. 1/21/2013 Readiness Personal Data Response

() 9

5. 1/21/2013 Career Interests ( ) 1

6. 1/20/2012 Evaluation 8

7. undated Goals from 4

8. 6/11/2013 Final Notice of Recommendation 1

9. undated Certificate for 2

---

Footnotes

[30] minutes each time and , one time per week, 30 minutes each time, service language: Yiddish. D-2; Tr. 44. She stated that the recommendation is for a bilingual class, if available, and if not available they would provide a bilingual paraprofessional in the interim. Tr. 45; D-2. Ms. testified that despite the box not being checked off on the IEP, it wouldn’t’ indicate bilingual paraprofessional if it weren’t in the system and that in the event there was not a bilingual class, a paraprofessional would be made available for him. Tr. 47. Ms. testified that the placement recommendation of a class in a District program was made based on his low testing score and his disability. Tr. 48. She stated that the recommendation was made with the entire team including his current teacher. She stated that he is currently in a program and they felt that this would be the most appropriate program for him. Tr. 48. He was recommended for a twelve month program. Tr.48. In terms of his levels, Ms. testified that on the IEP, his Present Levels of Performance indicated that his spelling, vocabulary and comprehension is on a mid-kindergarten level and his math is on a first grade level. Tr. 49. Ms. stated that socially and emotionally he presented appropriately in terms of his development. Tr. 48. She stated that his goals were created in collaboration with the school and the reports that they

[1] 4/18/2013 Notice of IEP Meeting 3

[2] 4/16/2013 IEP 14