Impartial Hearing Decision

UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

X In the Matter of the Impartial Hearing brought by XXXX and XXXX., on behalf of XXXX, Petitioners, -against-

XXXXX SCHOOL DISTRICT,

Respondent. X

INTRODUCTION AND POSITION OF THE PARTIES

This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioners XXXX and XXXX (hereinafter referred to as the “Parents”), requested an Impartial Hearing on behalf of their child, XXXX, (hereinafter referred to as the “Student”), contesting on procedural and substantive grounds, the appropriateness of IEP and placement recommendations made by the District’s Committee on Special Education (hereinafter referred to as the “CSE”) for the Student for the XXXX, XXXX, and XXXX school years. The Parents seek tuition reimbursement for the Student’s unilateral placement at the XXXX (hereinafter referred to as “XXXX”), for the XXXX school year, together with reimbursement for transportation expenses incurred by them. They also seek reimbursement and/or prospective reimbursement for tuition, transportation, and related expenses for the Student’s continued placement at XXXX for the XXXX and XXXX school years, including reimbursement for the cost of XXXX for the XXXX. In addition, they seek provision of transportation to XXXX for the XXXX school year, as well as reimbursement for any out-of-pocket expenses and lost wages related to the District’s alleged failure to provide transportation to and from XXXX for the XXXX and XXXX school years. They seek reimbursement for the costs of private XXXX, and reimbursement for a XXXX evaluation conducted by XXXX. They also request compensatory services to rectify the District’s alleged failure to seek out and adequately evaluate the Student during the XXXX school year. Finally, they seek attorney’s fees and expenses associated with their legal representation (Ex. IHO-3).

The District asserts in its Answer that it has, at all times relevant to this proceeding, provided or offered to provide special education services which were reasonably calculated to provide the Student with a free appropriate public education (hereinafter referred to as “FAPE”). Moreover, on September 28, 2012, at a CSE meeting, the Parents requested and were provided with transportation for the Student to XXXX. In addition, that the Parents failed or refused to provide consents for a review of the Student’s records necessary for the CSE to consider and evaluate the Student’s performance, failed to observe the program recommended by the CSE for the XXXX school year, and canceled previously scheduled CSE meetings. Finally, that the Parents failed to cooperate with the District and failed to provide the CSE with information for the development of an appropriate IEP for the XXXX school year (Ex. D- 59).

The District also asserts that the Student was provided with a FAPE in the least restrictive environment (hereinafter referred to as “LRE”) while XXXX attended school in the District, prior to XXXX unilateral removal from the District at the end of XXXX grade year; that XXXX is a private, general education, non-State approved private school; that the Student has a XXXX (hereinafter referred to “XXXX”), and that XXXX classification as a student with XXXX reflects XXXX primary area of disability; that the Student’s learning needs are reflected in all of XXXX evaluations and IEPs; that through the years, the IEPs correctly reflected the Student’s evaluations, academic and functional performance, social and physical development, and management needs, and provided goals, programs and placements that are reasonably calculated to provide the Student a FAPE; that the AIS and IEP services received by the Student included instruction in scientifically-based XXXX programs; that at the end of the XXXX school year, the Student achieved all of XXXX goals and had demonstrated progress on XXXX report card; that transportation was provided to the Student to XXXX for the XXXX school year; that the CSE recommended an appropriate program for the Student for the XXXX school year; and that the Parents withheld consent to release records from the XXXX (“hereinafter referred to as “XXXX”), the Student’s district of location, and no records were ever provided by XXXX (R. 27-32).

PROCEDURAL HISTORY

In a Due Process Complaint Notice dated September 27, 2013, and received by the District on September 30, 2013, the Parents requested an Impartial Hearing to compel payment by the District for tuition and related expenses for the Student’s unilateral placement by the Parents in XXXX (Ex. IHO-3).

In a letter dated October 1, 2013, an Impartial Hearing Officer (hereinafter referred to as “IHO”) was appointed by the District (Ex. D-58). At the first day of hearing held in this matter on January 13, 2014, two days prior to the expiration of the 45 day rule, the Impartial Hearing Officer recused herself (R. 1-12). On or about January 23, 2014, this IHO was advised that she was selected to act as Impartial Hearing Officer (Ex. IHO-1).

On January 28, 2014, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Hearing dates were also scheduled (Ex. IHO-4).

There were a total of 18 days of hearing in this matter. The first day of Impartial Hearing was held on January 13, 2014 by the previously appointed IHO. Hearings before this IHO occurred on February 7, February 28, March 11, March 17, March 26, April 3, April 8, April 9, April 11, April 29, May 12, May 14, May 19, June 5, June 18, June 27 and July 16, 2014 (R. 1-3977).

The District presented 4 witnesses on its direct case. The Parents presented 5 witnesses on their direct case. The District presented ^[1] witness on its rebuttal case. The transcript is 3977 pages in length. The District submitted a total of 98 exhibits. The Parents submitted a total of 63 exhibits. The Impartial Hearing Officer submitted a total of 19 exhibits. This Impartial Hearing Officer granted a total of 8 requests for extension of the 45 day rule. The actual record close date was August 25, 2014. The IHO’s decision was due on September 8, 2014 (Ex. IHO-17). Both parties submitted post-hearing memoranda of law (Exs. IHO-18, IHO-19).

ISSUES

In their Due Process Complaint Notice, the Parents state that the District failed to provide the Student with a FAPE for the XXXX and XXXX school years. They state that the District violated its XXXX responsibility; that the District failed to properly XXXX the Student; that the District failed to develop an appropriate program for the Student for the XXXX and XXXX school years that adequately addressed the Student’s specific academic, physical, social, and emotional needs; that the District failed to offer a program in the LRE for the XXXX and XXXX school years; that the District failed to develop a program that uses appropriate, scientifically-based methodologies and/or strategies to address the Student’s XXXX deficits; that the District failed to develop and implement meaningful and measurable goals and objectives; that the District failed to test the Student in all areas of XXXX suspected disability, in that they failed to give the Student a comprehensive XXXX evaluation or XXXX evaluation; that the District failed to recommend XXXX to address the Student’s XXXX difficulties; that the District failed to offer appropriate related services, including but not limited to XXXX for the XXXX, XXXX, and XXXX school years; that the District failed to offer appropriate testing accommodations; that the District failed to offer XXXX; that the District failed to respond appropriately to XXXX; that the District failed to allow the Parents an opportunity to meaningfully participate in the development of the Student’s IEP; that the District failed to timely offer a program for the XXXX school year; that the District failed to provide transportation to the Student for the XXXX and XXXX school years; that the District failed to offer XXXX services for the XXXX and XXXX school years; that XXXX is an appropriate placement for the Student; and that the equities weigh in favor of reimbursement to the Parents (Ex. IHO-3).

The District asserts that the CSE’s recommendations for the XXXX and XXXX school years provided a FAPE in the LRE and were reasonably calculated to meet the Student’s individual needs; that XXXX is a private, general education, non-State approved private school; that the Student has a XXXX, and that XXXX classification as XXXX reflects XXXX primary area of disability; that the Student’s learning needs are reflected in all of XXXX evaluations and IEPs; that through the years, the IEPs correctly reflected the Student’s evaluations, academic and functional performance, social and physical development, and management needs, and provided goals, programs and placements that were reasonably calculated to provide the Student a FAPE; that the AIS and IEP services received by the Student included instruction in scientifically-based XXXX; that at the end of the XXXX school year, the Student achieved all of XXXX goals and had demonstrated progress on XXXX report card; that transportation was provided to the Student to XXXX for the XXXX school year; and that the Parents withheld consent to release records from XXXX, the Student’s district of location, and no records were ever provided by XXXX (R. 27-32; Ex. D-59).

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX years old. Prior to XXXX, XXXX received XXXX services. The Student attended a XXXX program within the XXXX, due to XXXX. During a XXXX, the Parent reported that the Student had XXXX. She also stated that the Student was XXXX, XXXX had XXXX, and XXXX. She also reported that at home, the Student did not XXXX. XXXX demonstrated XXXX (Exs. D-3, D-6).

A XXXX by XXXX found the student to have XXXX. XXXX also experienced XXXX. A Social History report, completed as part of the Student’s referral to the CSE, indicates that XXXX. As a result, the Student XXXX (Exs. D-3, D-6, D-7, D-75).

The Parent testified that she first noticed XXXX, when XXXX. She also stated that the Student received XXXX, called XXXX (R. 3040).

In a letter dated November 14, 2008, during the Student’s XXXX grade year, XXXX, Principal of the District’s XXXX School (hereinafter referred to as “XXXX”) and XXXX, advised the Parents that they were recommending XXXX (hereinafter referred to as “XXX”) based on the Student’s performance on state or district assessments and on the recommendation of XXXX teacher; that XXXX is provided during the regular school day by a special education teacher who either provides small group instruction to the Student within the classroom or in the special education teacher’s classroom; and that services could also take the form of consultation between the classroom teacher and the special education teacher. The Parent signed a form confirming her understanding that the Student was recommended for XXXX and that XXXX would receive the support during the regular school day. The Parent testified that at that time, she requested the Student’s file so that she could forward it to XXXX, as the Student’s XXXX grade teacher, XXXX, stated her concern that XXXX was not keeping up. The Parent also provided written consent for a XXXX (R. 3063-3069; Exs. D-67, P-II, P-JJ).

XXXX, one of the District’s XXXX, testified that during the XXXX grade, in addtion to receiving XXXX instruction in XXXX, the Student received XXXX, as part of XXXX (hereinafter referred to as “XXXX”), by a certified XXXX teacher for 45 minutes per day for 5 days per week, and XXXX from a special education teacher for any subject in which the Student was falling behind in the regular classroom setting (R. 3821-3827, 3908; Ex. D-90).

On September 29, 2009, during the Student’s XXXX grade year, XXXX was referred to the RTI team. The RTI Implementation Plan confirmed the Student’s XXXX, which interfered with XXXX ability to access XXXX which was provided for the entire school year. The minutes reflect that XXXX, a District employee, went to the Student’s home to assist the Parents with XXXX. The Student’s XXXX grade regular education teacher, XXXX, provided XXXX with XXXX instruction using the XXXX program, in her classroom. The minutes also reflect that the Student told XXXX mother that XXXX (Ex. D-75).

The Parent testified that for the 2009/10 school year, the Student was assigned to XXXX’s regular education classroom. She stated that very early in September 2009, she was either approached by, or received a letter from, a combination of teachers or the XXXX Principal, XXXX, and was told that the Student was not keeping up, that they were very concerned, and asked whether the Parent would be willing to allow the Student to begin XXXX or XXXX, and they would implement a program to see whether it would address XXXX needs. She testified that XXXX, a XXXX, was assigned to work with them. The Parent also stated that she did not receive any written documents indicating that the Student was referred to the XXXX team. XXXX testified that XXXX are shared with parents, and that any time a change was made to an XXXX service a parent would be notified, and she described the differences between XXXX and XXXX. The documentary evidence shows that the Parent was advised in writing regarding the provision of XXXX services in XXXX on November 14, 2008. The form states that XXXX support can be in the form of small group instruction within the classroom, small group instruction in the special education teacher’s classroom, or consultation between the classroom teacher and special education teacher on behalf of the student. The evidence shows that the Parent signed the form on November 18, 2008, during the Student’s XXXX grade year. The Parent testified that for the XXXX grade, the Student was moved into a special education classroom with XXXX, a special education teacher, and that XXXX remained in that class for his entire XXXX grade year (R. 3048-3053, 3915-3927, 3931-3934; Exs. D-67, D-75, D-76).

XXXX testified that in November 2009, she and the Parent had a conversation during Parent/Teacher Night where the Parent expressed concerns about the Student’s progress. They discussed that the Student had some XXXX and that there was concern regarding XXXX and XXXX difficulties. They discussed different options as to how they could proceed. The Parent shared that XXXX, and the staff was trying to give the Student support while respecting the family’s wishes that XXXX not be referred for initial evaluation as part of the CSE process. They moved forward through the XXXX process. The Student received XXXX as a building level service (R. 3852-3854).

The documentary evidence shows that on January 11, 2010, there was an XXXX Review of the Student’s XXXX. It was noted that the Student’s XXXX was better during XXXX grade than it was in the past. It was also noted that there was XXXX (Ex. D-76).

XXXX testified that during the XXXX grade, (i.e., the 2009/10 school year), in addition to XXXX, the Student received XXXX. As the year progressed, concerns about XXXX progress were raised, and through the XXXX they were determining whether XXXX needed to be given more support. XXXX did not know where the 30 minute XXXX sessions with XXXX were delivered, but stated that the Student continued to receive the 30 minute pull-out’s into February 2010. She also stated that the Student was placed in XXXX’s XXXX class for 45 minutes per day, with parental consent, some time prior to XXXX move to the XXXX for XXXX, but that she did not recall the time frame. XXXX stated that XXXX suggested that the Student switch from XXXX’s XXXX class to the XXXX. XXXX testified that, even with the extra XXXX help she was providing the Student prior to the start of school, together with XXXX instruction she provided as part of the regular education classroom, and the 30 minutes of extra XXXX support from XXXX, it was not enough. The XXXX agreed and on February 1, 2010, broached the subject with the Parents at an XXXX meeting, who agreed to move the Student into XXXX’s class for XXXX. However, the record shows that the Parent had hesitations about the move, which she shared with XXXX (R. 1869-1872, 3831-3838, 3841-3850, 3854-3855, 3909-3915; Exs. D-76, D-90, P-GG).

The Parent testified that shortly after the Student’s entry into XXXX’s class, XXXX told her that XXX. She testified that the Student said to her XXXX (R. 3059- 3060).

On or about February 1, 2010, the Parent referred the Student for evaluation by the CSE, provided consent for educational testing, and requested that the results of testing be forwarded to the Student’s XXXX (Exs. D-1, D-2, D-3, D-4, D-10, D-11, P- FF). As part of the referral process, the CSE arranged for conduct of the following: An Evaluation for XXXX (Ex. D-5); a XXXX Report by XXXX (Ex. D-6); a XXXX report by XXXX (Ex. D-7); and XXXX by XXXX (Ex. D-8).

A CSE meeting to determine initial eligibility for special education services during the 2009/10 school year was scheduled and held on April 13, 2010 (Exs. D-12, D-14, P-FF). It was held contemporaneously with a CSE meeting annual review for recommendations for the Student for the 2010/11 school year (Ex. D-17). The Parent signed a Declination of Parent Member form, declining the participation of the additional parent member at the CSE (Ex. D-15). The District had in its possession a letter from XXXX diagnosing the Student with “XXXX which adversely affects his ability to succeed in a regular classroom without intervention” (Ex. D-13). XXXX apparently issued two letters dated April 12, 2010; a letter submitted as a Parents’ exhibit, also by XXXX, sets forth the Student’s diagnosis of XXXX, but also states that the Student “requires special services under a 504 plan to help ensure adequate education.” The Parent testified that she never saw either of XXXX’s letters until the hearing process began (R. 3310-3311; Exs. D-13, P-EE).

A CSE review of all of the information gathered as a result of the initial referral yielded the following program recommendations for the Student for the duration of the 2009/10 school year, XXXX XXXX grade year. XXXX was classified as XXXX (“XXXX”), based on the CSE’s finding that XXXX had a significant XXXX. XXXX was also diagnosed with XXXX by XXXX. The Student needed to improve XXXX skills, XXXX skills, and XXXX. It was also noted that the Student appeared to lack XXXX which might have caused XXXX to XXXX. The CSE recommended special classes for XXXX and XXXX, with XXXX, noting that the Student had significant difficulties with XXXX and XXXX needed to XXXX. The CSE noted a XXXX, XXXX. XXXX was found to be ineligible for XXXX services. XXXX was required to participate in XXXX. It was also noted during the Student’s XXXX that XXXX. The Parent confirmed that after evaluations were performed, the CSE met, reviewed the results of the Student’s evaluations, she participated in the meeting, and that the Student was classified as XXXX. She stated that no other classifications were discussed, and that she did not know that there was a choice of classifications (R. 3073-3079; Exs. D-6, D-14).

For the duration of the 2009/10 school year, the CSE recommended annual goals in the area of XXXX, XXXX, and XXXX; annual goals in XXXX including XXXX; an annual goal in XXXX. There were two annual goals in XXXX (Ex. D-14). The Parent signed consent for initiation of the Student’s special education services. However, she testified that she was not in agreement with the CSE’s recommendations based on the Student’s “XXXX.” She stated that the Student was not XXXX. The Parent stated that she did not know what to do with XXXX (R. 3082-3083; Exs. D-11, D-16, D-17).

The Parent testified that she brought the Student for evaluation to XXXX, a XXXX, on or about July 7, 2010. The report states that the Parent questioned whether the Student had XXXX. The Parent testified that XXXX diagnosed the Student with XXXX and XXXX. The report states that the Student had XXXX. XXXX saw the Student for follow-up, as requested by the Parent, for an opinion as to whether the Student was benefitting from special education. The Parent testified that she did not provide XXXX with any documentation at the time of his re-evaluation or thereafter. XXXX’s second report specifically diagnoses the Student with XXXX, XXXX, XXXX, and XXXX as secondary. XXXX, who conducted a XXXX of the Student on May 18, 2012, testified that XXXX scores were average, and she could not diagnose him with officially having a XXXX disorder. However, XXXX was impacted by XXXX. XXXX also had issues with XXXX XXXX. However, XXXX still scored in the average range in XXXX, and XXXX was not able to diagnose the Student with XXXX (R. 2267-2269, 3040-3047, 3614-3617; Exs. D-45, P-X, P-CC).

For the 2010/11 school year, the Student’s XXXX grade year, the CSE continued to recommend the special education programs that were in place as of April 2010. However, it also included testing accommodations, including XXXX. The Parent testified that she participated in the meeting, that she expressed her disagreement with placement for the Student in a XXXX and wanted to discuss alternatives, and that the CSE members stated XXXX, and the XXXX was where XXXX needed to be. The Parent testified that XXXX continued to be an issue for the Student and XXXX, and she expressed her concerns to the Student’s XXXX teacher, XXXX, who modified XXXX to some degree by XXXX. She also suggested XXXX strategies to be employed at home when the Student XXXX (R. 3099-3108; Ex. D-17).

The Parent testified that during the Student’s XXXX grade year, XXXX declined XXXX. She stated that the Student was XXXX. She stated that XXXX. The Parents’ Due Process Complaint Notice does not contain an allegation of XXXX. The Parent testified that the Student had XXXX (R. 3109-3118; Ex. IHO-3).

XXXX testified that the Parent never raised an issue with respect to XXXX with the exception of a CSE meeting that occurred after the Student was placed in XXXX for a year, and stated her opinion that the Student was not XXXX at XXXX, as alleged by the Parent. She described XXXX as XXXX when XXXX was in school and that XXXX (R. 3863-3866).

The Parent testified regarding the results of the Student’s performance on the New York State assessments and she spoke with XXXX about the results. She stated that XXXX told her that was where the Student was functioning as a special education student. The Parent also spoke with XXXX, who stated that it was not uncommon to see those scores because that is why the Student is in special education. The Parent stated her opinion that the Student will always score poorly on the State assessments because the curriculum in the classroom is modified, and that the Student has the XXXX (R. 3119-3122, 3126-3128, 3130-3131; Ex. P-BB).

An annual review by the CSE Subcommittee for the XXXX school year, the Student’s XXXX grade year, was scheduled and held on April 11, 2011. The Student continued to be recommended for XXXX and XXXX. XXXX do not appear on the IEP, even though XXXX indicated that during XXXX, the Student had XXXX, and that XXXX could not XXXX. XXXX testified that in the XXXX grade, the Student, as well as all other classified students, received XXXX as a building-level service. The Student also needed support with XXXX and XXXX and XXXX. The minutes note XXXX. Annual goals in XXXX. The minutes indicate that the Parent was exploring XXXX (R. 267-269; Exs. D-19, D-20).

Supplementary Aids and Services/Program Modifications/Accommodations were XXXX (Ex. D-20).

The Parent testified that she participated in the CSE meeting that led to the development of the IEP for the XXXX school year. She stated that she raised concerns to the CSE regarding the appropriateness of the Student’s placement and asked for other programs and placements. She also stated that the Student was functioning XXXX, and that XXXX. She asked that XXXX return to XXXX. She also stated that the CSE members stated they did not see the Student being XXXX and she was questioned regarding whether she placed the issue in writing. The Parent stated that she wrote texts to XXXX and XXXX, and XXXX asked why the Student did not come to her. The Parent also stated that the school librarian assisted with one particular student that kept XXXX. She stated that she “couldn’t have talked about it more.” She also stated that the CSE discussed the Student’s need to XXXX, and the Parent stated that the Student was “XXXX,” and that at some point she sought out the services of XXXX. She also stated that in the XXXX grade, the Student participated in XXXX. The Parent stated her belief that the CSE’s recommendation for the XXXX school year was not appropriate XXXX (R. 3131-3136, 3138-3140, 3143-3148, 3151; Ex. D-20).

XXXX stated that given the Student’s XXXX functioning, as demonstrated by her testing, and given XXXX as she knew it to be in the XXXX grade (i.e., the XXXX school year), she believed that the Student’s XXXX (R. 3882-3884).

The Parent testified that there were no alternative options for placement discussed for the XXXX school year, and there was discussion that at times the Student had difficulty XXXX. She also testified that there were never discussions regarding XXXX. She also testified that she asked XXXX at the CSE meeting about sending out placement packets to other schools, and no packets were sent. She stated that after the April 11, 2011 meeting, she constantly followed up with XXXX and XXXX to inquire when packets would be sent, and she began to look at placements on her own which were recommended by the Student’s XXXX. The Parent testified that the Student continued to attend school in the District for the XXXX school year, and XXXX. She also stated that a final program and placement was specifically recommended for the XXXX school year, but that additional placement options were being explored because the Parent requested that other options be considered. The documentary evidence shows that on September 11, 2013, XXXX provided a consent form to release information for XXXX to the Parent, which the Parent declined to sign (R. 1311-1312, 3156-3170, 3284-3286; Ex. D-53).

The Parent testified that the Student continued to have difficulty with XXXX in the XXXX grade and that XXXX worked with XXXX after school, which helped. She then stated that XXXX help was “sporadic.” She spoke with XXXX about the Student’s XXXX and XXXX stated that the Student had XXXX. The Parent confirmed that two of the Student’s best friends were XXXX, and that XXXX. She stated that XXXX saw XXXX. She also stated that XXXX agreed that the Student’s XXXX, and felt that when XXXX. The Parent stated that the Student XXXX (R. 3170-3178; Exs. D-68, D-68A, D-69, D- 69A).

An annual review for the XXXX school year, the Student’s XXXX grade year, was scheduled for March 21, 2012. The meeting thereafter was rescheduled for April 23, 2012, and was again rescheduled. The annual review was eventually held on May 11, 2012 (Exs. D-21, D-22, D-23, D-24).

For the XXXX school year, the CSE Subcommittee continued to recommend placement for the Student in XXXX. The Parent expressed concerns regarding the Student’s XXXX. At her request, the CSE Subcommittee recommended XXXX services. Annual goals in the area of XXXX (Ex. D-24).

XXXX annual goals were modified to include XXXX (Ex. D-24).

Supplementary Aids and Services/Program Modifications/Accommodations were expanded to include XXXX (Ex. D-24).

The Parent testified that on or about May 16, 2012, she took the Student back to XXXX, due to her continued concerns with the Student’s XXXX and she wanted his opinion about what he believed to be the right placement for the Student. XXXX issued a letter to XXXX, a XXXX who was recommended to the Parent by the District, and whom the Parent chose to be XXXX in the XXXX grade. She stated that she made copies of XXXX’s letter and provided a copy to XXXX and to XXXX, a school XXXX who was XXXX’s maternity leave replacement. She also took the Student to see XXXX on or about May 25, 2012 for evaluation, but she did not recall whether she told XXXX that the Student was going to see XXXX. She testified that she shared the results of XXXX’s testing verbally in May or June 2012, and she shared XXXX’s written report with the District, and in particular, XXXX and XXXX, in or about August 2012. The documentary evidence shows that the Parent provided written consent for XXXX to release her report to the District in late June 2013 (R. 3178-3184, 3297, 3303, 3306- 3307; Exs. D-44, P-X, P-XX).

In a letter dated June 4, 2012 to the District Clerk, the Parent rejected the IEP for the XXXX school year as inappropriate; reserved the right to place the Student in a private school at District expense; and expressed her intention to seek busing XXXX for XXXX (Ex. D-25). In a letter dated June 14, 2012, XXXX, the District’s Executive Director of Pupil Personnel Services, stated that the Parent’s letter would be recognized as a parent request for a CSE review of the program recommended at the May 11, 2012 CSE Subcommittee meeting as well as to discuss the Parent’s concerns to seek a different placement. The Parent testified that the Student started XXXX in XXXX program to XXXX (R. 3345-3346; Ex. D-26).

In a letter to the CSE dated June 28, 2012, the Parent requested a complete copy of the Student’s CSE folder (Ex. D-27). In a letter dated June 29, 2012, the District complied with the Parent’s request (Ex. D-28). In a letter dated August 20, 2012, and received by the District on August 21, 2012, the Parent provided a 10 day notice of her intention to unilaterally placed the Student at XXXX and seek tuition reimbursement and transportation (R. 3330-3331; Exs. D-29, P-S). In a letter from XXXX, dated September 4, 2012 to XXXX, the Parents demanded transportation for the Student to XXXX starting September 5, 2012, XXXX first day of school. XXXX, the Founder and Co-Director of XXXX, testified that the Student started school approximately ^[2] weeks into the XXXX school year (R. 2581-2582; Ex. D-30).

On September 14, 2012, a CSE meeting was scheduled for the purpose of an IEP Revision (Ex. D-31). In an e-mail transmission dated September 12, 2012 to XXXX and XXXX, the District’s CSE Chairperson, the Parent requested an adjournment of the CSE meeting scheduled for September 14, 2012 due to a doctor’s appointment and to allow the District time to review information it requested from XXXX (R. 3335-3336; Ex. D-32). In a letter to the Parent from XXXX dated September 13, 2012, cancellation of the CSE meeting was confirmed as well as requests for the Parent to provide a release of information from XXXX regarding the Student and the nature of XXXX program, and a release of information to provide XXXX, under parentally placed procedures, information regarding the placement of the Student at XXXX. XXXX provided copies of the requested releases for signature and a reply envelope (Ex. D-34). The CSE meeting was rescheduled for September 28, 2012 and was attended by legal counsel for both parties (Ex. D-33).

At the CSE meeting held on September 28, 2012, the Student’s recommended program as developed by the CSE Subcommittee was reviewed. The Parents requested transportation and were informed that the CSE’s recommended program and the private school program needed to be considered comparable before transportation would be considered. Private school program information that was gathered by XXXX was shared with the CSE, and transportation to XXXX was ultimately agreed upon (R. 3334-3337, 3339; Exs. D-35, P-S). There is a difference of opinion between the parties as to whether the CSE found the programs to be similar, and provided transportation on that basis, or whether XXXX made an administrative determination to provide transportation in an attempt to work with the Parents. The Parent testified that transportation began on October 16, 2012, but that prior to that time, the Parents transported XXXX to XXXX, which had a dramatic effect on their business and on their lives in general. The enrollment contract for the XXXX school year was signed by the Parent on October 16, 2012. The Parent testified that both parents paid the tuition in full, totaling $15,100.00, and then stated that the Student’s grandmother paid the tuition on behalf of the Student in cash. She also stated that they repaid the Student’s grandmother over time “here or there with cash” and there might have been checks or deposits into her banking account. She characterized it as “a very loose arrangement.” On cross-examination, the Parent testified that she repaid “about half” of the tuition for the XXXX school year to her mother, and that XXXX (R. 496-498, 815-818, 856, 1022- 1025, 1794-1798, 1807-1809, 1815-1817, 1823-1824, 1833, 3334-3337, 3339-3345, 3357-3359, 3589-3602; Exs. D-35, P-N, P-S).

In a records release form dated September 28, 2012, the Parents authorized the District to release the Student’s educational records to XXXX. The form release emanated from XXXX. The release was stamped received by the Office of Pupil Services on September 28, 2012 (Ex. D-36). In a Consent for Release of Confidential Information dated September 18, 2012, the Parents authorized the District to release the Student’s educational records to XXXX and to XXXX, on a form which emanated from the District. The release contains an illegible stamp (Exs. D-37, D-38). In a facsimile from XXXX to the District dated November 14, 2012, a consent for release of the Student’s records was sent together with a request to transfer the Student’s IEPs on IEP Direct. The IEP was transferred by the District on November 19, 2012 (Ex. D-38). On December 4, 2012, the District sent records to XXXX by facsimile transmission (Ex. D-38). A review of the documentary evidence shows that the Parents did not provide the requested releases for the District to receive the Student’s educational records from XXXX or XXXX until the end of the XXXX school year, and that the Parent never executed XXXX’s form release to provide records to the District, because she did not agree with its contents. She drafted and signed a modified version of XXXX’s release dated September 20, 2013 (Ex. P-C). Moreover, XXXX personnel notified XXXX, in the Parent’s presence, at a meeting held on September 11, 2013 that they did not have a release. The Parent testified that XXXX lied about not having the release. She also testified to her belief that the only purpose of XXXX’s form, entitled “Parent Non-Public School Placement Acknowledgment Form/Consent Form,” was to enable XXXX to prepare an IESP for the Student. A review of the form shows that it states, if services were provided by XXXX, that the Parent gives XXXX permission to exchange all pertinent educational information about the child with the non-public school and the school district of residence. Although the Parent testified that she signed XXXX’s form in 2012, there is no such document in evidence (R. 3402, 3521, 3693-3694, 3697-3705, 3765-3780; Exs. D-34, D-44, D-54, P-C, P-I, P-O, P-P, P-Q, P-OO, P-XX, P-YY, P-ZZ,

P-AAA, P-CCC).

An annual review for the XXXX school year was scheduled for June 19, 2013 (Ex. D-40). The CSE continued to recommend placement for the Student in XXXX. It contained a recommendation for placement in XXXX. It continued to recommend small group XXXX 1 time per week for 30 minutes. The recommended annual goals remained the same as those contained in the IEP for the XXXX school year. Supplementary Aids and Services/Program Modifications/Accommodations also remained the same as those contained in the IEP for the XXXX school year, as well as the Testing Modifications. XXXX continued to be recommended for XXXX (Ex. D-41).

The minutes from the June 19, 2013 CSE meeting reflect that a conversation was held with the Parent regarding consent for release of documents from XXXX to the District, which she stated would be signed and sent back. She expressed that she wanted the District to place the Student properly within the District. The Chairperson stated that the CSE needed records of performance, as well as testing, and that the District could not develop a plan without the material, including any IESP prepared by XXXX. The Parent stated that the Student has XXXX, that XXXX, and that she wanted the Student in XXXX. The Chairperson stated that the Parent had the right to revoke consent for special education at any time. The parties agreed to conduct a re-evaluation of the Student. The Parent requested testing in either early or late summer to accommodate the family’s vacation schedule. Three releases were provided to the Parent for signature. The Parent signed only the consent for re-evaluation, and stated that a XXXX recommended placement for the Student at XXXX. The evidence shows that XXXX released a copy of her XXXX to the District on September 16, 2013, after she received a release from the Parent dated June 24, 2013, allowing her to do so. XXXX testified that she sent the District a copy of her report on another occasion prior to September 16, 2013, but she was informed that the District had not received it. The Parent provided XXXX with a copy of XXXX’s report in connection with her re-evaluation of the Student in June 2013 (R. 953-954, 2180-2182; Exs. D-41, D-45, D-45A, P-NN, P-

PP, P-XX).

During the course of the CSE meeting on June 19, 2013, XXXX sent to the District its own Parent Nonpublic School Placement Acknowledgment/Consent Form for the Parent’s signature. It is somewhat similar in form to a document created by and signed by the Parent on September 20, 2013. XXXX testified that he never saw the Parent’s document. The Parent testified that she never sent the executed document to the District, but did provide it to XXXX and did not keep a stamped copy for her files (R. 1335; Exs. D-42, P-C).

At the CSE meeting on June 19, 2013, the District provided the Parent with consents for release of school records by XXXX, XXXX, and the XXXX report prepared by XXXX one year earlier. The documentary evidence shows that on June 24, 2013, the Parent signed the consent for release of XXXX’s report, which was stamped received by the Office of Psychological Services on June 24, 2013, the same date that the Student was evaluated by XXXX. Another copy of the release was stamped received by the Office of Pupil Services on June 27, 2013, which was provided by XXXX with a copy of her final report (Exs. D-42A, D-44, D-45, D-48, P-W, P-NN, P-XX).

The documentary evidence also shows that on June 24, 2013, the Parent submitted a signed consent for release of information by XXXX to the District. The Parent testified that she entered the Administrative Offices on June 24, that the building was mostly empty, and that she submitted the release to an individual who stamped it received by the Office of Psychological Services. XXXX testified as to the authenticity of the District’s stamp, but stated that he never saw the release. The documentary evidence shows that on July 2, 2013, the executed release was sent to XXXX by XXXX by facsimile transmission (R. 1410-1314, 1417-1418, 1427-1428, 1446-1452, 1469- 1473, 1659-1660; Exs. D-48, P-I, P-XX, P-YY, P-ZZ, P-AAA, P-CCC).

XXXX, a New York State certified XXXX who was assigned primarily to XXXX, has been employed by the District for 12 years. Her duties include consulting with teachers, attendance at building level meetings to discuss concerns about particular students, the conduct of XXXX evaluations, and providing XXXX (R. 213-215).

XXXX first became familiar with the Student when XXXX was in XXXX. His teacher raised concerns to the building level team about the Student’s XXXX. She stated that the Student accompanied XXXX mother to XXXX. XXXX was placed in a group with other XXXX who were struggling with XXXX. XXXX estimated the Student’s XXX in XXXX as XXXX (R. 215-221; Exs. D-7, D-79).

XXXX testified that in the Student’s XXXX grade year, she met frequently with the Parent regarding concerns with XXXX progress, strategies for maintaining XXXX, and the importance of XXXX. She also attended team meetings regarding the Student. In the XXXX grade, the Student began to receive XXXX. XXXX began to work with a special education teacher in a small group for XXXX support in XXXX and XXXX for XXXX. XXXX continued to be an issue for the Student in the XXXX grade, but XXXX noted some improvement in that area from XXXX. When XXXX was there, XXXX was always XXXX. The Parent shared that it was difficult XXXX. She also stated that the Student XXXX (R. 221-226, 429-436; Ex. D-67).

XXXX stated that she had extensive discussions regarding evaluation for special education services, but that the Parents were not in agreement on the issue. They tried to work through XXXX to see if there was a level of support that would serve the Student. She stated that XXXX with a teacher through XXXX. In the XXXX grade, there were continued concerns from the Student’s teacher regarding his XXXX level, his XXXX and many concerns regarding XXXX and XXXX. There were also XXXX issues. The Parent testified that she disagreed that XXXX was an issue for the XXXX grade, and she referenced the Student’s report card which contains information regarding XXXX. The report card shows that the Student was XXXX. The District did not place the Student’s XXXX for the 2009/10 school year into evidence. The Student’s support was elevated to XXXX. The building-level team was in agreement (R. 226-229, 232- 235, 3096-3099; Exs. D-3, D-75, D-76, P-WW).

XXXX testified that the Parent asked her for XXXX for the Student regarding

XXXX (R. 230-231).

XXXX reviewed the results of the Student’s psychoeducational testing, conducted as part of the CSE referral process. She testified that XXXX (R. 237-239, 245-246, 449-452; Ex. D-6).

The Student’s XXXX (R. 239-240; Ex. D-6).

A classroom observation was also performed in XXXX as part of the referral process. During the 30 minute observation, the Student XXXX (R. 244-245; Ex. D-8).

The XXXX was administered in the XXXX grade, which assessed XXXX and XXXX. It was reviewed as part of the referral. The Parents’ version reported XXXX (R. 240-243, 247; Exs. P-EE, P-HH, D-13).

XXXX described her participation in the CSE meetings held on April 13, 2010 for the Student’s initial eligibility during the XXXX grade and for XXXX annual review for the 2010/11 school year, the Student’s XXXX grade year. In the meeting, the CSE discussed the success the Student found in the XXXX program and that they wanted to formalize a program for the Student through an IEP with goals. The CSE also discussed classification. She stated that all members of the CSE, including the Parent, were in agreement with a classification of XXXX (hereinafter referred to as “XXXX”). XXXX stated that the Parent provided XXXX’s letter at the CSE meeting with XXXX diagnosis and all felt that XXXX was the most accurate reflection of the Student’s difficulty, given his XXXX diagnosis, rather than XXXX. On cross-examination, XXXX stated that the Student did not show XXXX. XXXX stated that the Parent was happy with the Student’s progress as of the end of XXXX grade and she stated no disagreement with the CSE’s recommendations for the duration of the 2009/10 school year or the 2010/11 school year (R. 247-251, 471, 474-477; Exs. D-14, P-EE).

During the 2010/11 school year, the Student’s XXXX grade year, the Parent shared that the Student had some issues XXXX. A review of the Student’s Progress Report for Goals and Objectives for the 2010/11 school year indicates that XXXX achieved all of XXXX goals by the end of the year (R. 252-263; Exs. D-68, D-68A, D- 70).

XXXX testified regarding her participation in the CSE annual review meeting held on April 11, 2011, in preparation for the Student’s program for the XXXX school year, XXXX grade year. She stated that there were discussions that the Student was utilizing the supports that were in place for XXXX, but that XXXX and XXXX inhibited progress. There were also discussions concerning XXXX. The CSE felt that XXXX needed the same level of support for XXXX grade year. She stated that XXXX became a building-level service, and that although it did not appear on the IEP for the XXXX school year, XXXX continued to receive that service, as well as all students who were placed in special education. She stated that the CSE discussed with the Parent that the level of support would be the same (R. 265-269; Ex. D-20).

On cross-examination, XXXX testified that at the Student’s annual review held on April 11, 2011, the CSE discussed the Student’s difficulties with XXXX and XXXX, and that XXXX (R. 455-457; Ex. D-20).

XXXX testified that each year, with the exception of the re-evaluation years, special education teachers administer the XXXX and the XXXX Assessment to assess their growth for the year. In the area of XXXX, the Student scored XXXX. In the area of XXXX, the Student scored XXXX. XXXX functioned XXXX (R. 269-272; Exs. D-20, D- 79, D-80).

XXXX also testified that the CSE discussed that the Student continued to need XXXX. Socially, the Student XXXX. However, XXXX testified that XXXX (R. 272-275; Ex. D-20).

XXXX described the Parent as an active participant in the CSE meeting and raised concerns, if she felt that there were any. XXXX stated that the CSE, including the Parent, were very happy with the Student’s progress, they felt XXXX was showing growth, and she thought all were “on the same page” with the Student’s placement recommendations for the XXXX grade year. She stated that the Parent did not ask for any changes to the IEP (R. 275-276, 278; Ex. D-20).

XXXX testified that in the fall of the XXXX school year, the Parent raised concern that the Student was XXXX. In response to those concerns, the Student was placed in XXXX. The Student achieved all of XXXX goals for the XXXX school year. However, XXXX continued to have issues with XXXX. XXXX recalled that XXXX offered her services to stay after school to make up work, as well as XXXX. The Student was XXXX. XXXX testified that XXXX. XXXX left for maternity leave in March 2012 and she was not at the annual review held for the Student’s program for the XXXX school year. However, she reviewed the Student’s recommended program and goals and stated her opinion that they were appropriate for XXXX (R. 280-281, 283-292; Exs. D-24, D-69, D- 69A, D-71).

XXXX testified that she was present at a CSE meeting held during the XXXX school year. She stated that the CSE discussed XXXX, the fact that it did not offer XXXX, and that they needed to work with XXXX in the development of an IESP to provide XXXX. XXXX stated that XXXX was intrinsic to the Student’s XXXX, and involved XXXX. There was also discussion that XXXX was not a New York State approved school and they did not have special education services. She also testified that it was determined at the meeting that the Student would be provided with transportation to and from XXXX (R. 287-290, 294-297; Exs. D-33, D-35).

On redirect examination, XXXX testified that at the CSE meeting held on September 28, 2012, there was discussion about similarity of the programs offered by the District and XXXX with respect to the issue of transportation. In her opinion, the programs were dissimilar because at XXXX, the teachers were not special educators, the class size was dissimilar as the students were not separated by age group, and they were not XXXX on specific grade level curriculum. She stated that XXXX commented that in an effort to resolve concerns and issues raised by the family, that transportation would be granted (R. 496-498; Ex. D-35).

XXXX testified that the Parent did not provide the CSE with the private evaluation by XXXX, conducted on May 18, 2012, at the CSE meeting held on September 28, 2012. She compared the Student’s performance on academic testing conducted by XXXX with XXXX performance on academic testing conducted by her as part of the Student’s XXXX. XXXX compared the Student’s scores on the XXXX, and found that XXXX (R. 301-306; Exs. D-6, D-45).

In the area of XXXX XXXX in XXXX, the Student scored XXXX, although XXXX (R. 306-308; Exs. D-6, D-45).

XXXX testified that the Student’s performance on two subtests of the XXXX (R. 308-313; Ex. D-45).

XXXX also discussed the Student’s functioning at XXXX by comparing XXXX reports from November 2012 and March 2013, and noted similarities between issues seen by XXXX and the District. She noted that the XXXX reports indicate that the Student XXXX (R. 313-314; Ex. P-J).

XXXX also noted that the report indicated that the Student was XXXX during both the fall and the spring, and that XXXX had a XXXX in XXXX. She noted that the Student made good growth in the District’s programs, and that XXXX at the time XXXX left the District was good. It is also noted in the fall 2012 report that a goal for the Student was to XXXX (R. 314, 317; Ex. P-J).

XXXX reviewed an IESP prepared by XXXX in December 2012 and stated her opinion that the special education programs, testing accommodations, and other special services listed in it were not sufficient to enable to the Student to progress from grade to grade. She also stated that the amount of XXXX contained in the IESP does not comply with the minimum requirements of service that is set forth in the Commissioner’s Regulations (R. 332-333; Ex. P-QQ).

XXXX also reviewed an IESP prepared by XXXX on April 9, 2013 and stated her opinion that the special education services to be provided XXXX school year were not sufficient, and the Student would need more special education services in order to progress (R. 334-335; Ex. P-L).

XXXX was asked to compare the testing results obtained by XXXX on May 18, 2012 with the testing results obtained by XXXX who conducted the Student’s XXXX on June 24, 2013. In the area of XXXX (R. 389-403, 416; Exs. D-45, D-48).

XXXX also testified that the Student’s functioning on XXXX (R. 404-405, 421- 424, 428, 488, 503-507, 513-515; Exs. D-45, D-48).

On re-direct examination, XXXX was asked to compare the Student’s test scores from the time XXXX was first classified and tested by her, in February and March 2010, and at the time of XXXX’s testing. She testified that at the time of XXXX classification, the Student’s XXXX (R. 489-491; Exs. D-6, D-45).

Also on redirect examination, XXXX was asked about the timing of the referral process. She stated that once a student has gone through the XXXX, and it is found that the level of interventions that are needed are such that they need to be provided through special education, then the building-level team would move to make a recommendation to begin the CSE process. With respect to this Student, she stated that the staff was uncomfortable making a recommendation for CSE referral due to the Student’s XXXX. Once the Student began moving through the levels of the XXXX, staff determined that the level of support that was working for XXXX should be formalized into a plan. In addition, the Parents were hesitant to refer the Student to the CSE process, and staff tried to work with them and give the Student the support XXXX needed at the building level. Once all parties were comfortable, that was when the determination was made to move forward with the CSE process (R. 500-502).

On re-cross examination, XXXX clarified that students do not necessary have to go through XXXX before a referral to the CSE can be made, but that in her opinion, it was the best practice (R. 531-537).

XXXX is the District’s Director of Pupil Services who has been employed by the District for 21 years. He holds New York State certifications in Elementary Education, Special Education, Mathematics, School District Administrator, and School Building

Administrator. He first became familiar with the Student in the spring 2012, during XXXX grade year. He was notified by the building principal that there were concerns with the recommendations made by the CSE Subcommittee for the XXXX school year, and a full Committee meeting was going to be convened to review the Sub-Committee’s recommendations (R. 337-342; Ex. D-24).

XXXX testified that he received a copy of a letter from the Parent to the District Clerk that the Parent was rejecting the IEP for the XXXX school year as inappropriate, that she reserved the right to place the Student in a private school at District expense, and that she would be seeking busing for XXXX beginning in the XXXX school year. XXXX sent a letter to the Parent in response, stating that he would treat her letter as a parent request for a CSE review. On cross-examination, he stated that he treated the Parents’ letter as a request for a CSE meeting since she indicated that she rejected the IEP, she stated that it was inappropriate, that the IEP which she referenced was developed by a CSE Subcommittee, and that the recommendation needed to be reviewed by the full CSE. A meeting notice dated September 7, 2012 was sent to the Parents. He also received a written request by the Parent for copies of the Student’s CSE file and that he provided the Parent with copies of the Student’s confidential folder, together with a letter identifying each document in the folder. XXXX stated that as of June 20, 2013, he had not received a copy of XXXX’s evaluation. He testified that written consent was not provided by the Parents for the release of XXXX’s report until June 27, 2013, more than one year after the evaluation was conducted. The Parent testified that she provided a copy of XXXX’s report to XXXX right away, in August 2012, in preparation for a CSE meeting. XXXX also stated that he had not received a copy of XXXX’s letter or his evaluation until the commencement of the hearing process, when he looked at documents provided to the District by the Parents’ attorney. He stated his agreement with XXXX’s opinion that the Student should be placed in special education. The Parent testified that in or about September 2010, she dropped off a copy of XXXX’s report to the secretary at XXXX and asked her to provide a copy to XXXX. Neither of XXXX’s reports are stamped received by the District (R. 342-344, 1294-1296, 1298- 1300, 1361-1364, 1369, 1489-1490, 3092-3096, 3562-3563; Exs. D-25, D-26, D-27, D-

28, D-31, D-43, D-44, D-45, P-X, P-CC).

On redirect examination, XXXX testified that there were documents that were in the possession of the Parent that showed that the Student progressed in XXXX placements in the District’s programs, as of the time she met with XXXX on May 16, 2012 (R. 1676-1678; Exs. D-70, D-71, P-X).

XXXX also testified that he received a ten-day notice letter from the Parent dated August 20, 2012 stating her disagreement with the CSE’s recommendations for the Student, her intention to place the Student at XXXX, and requested the District arrange for busing. XXXX responded to the Parent’s letter, indicating that the CSE would meet to review and consider the Parent’s request. The CSE meeting was postponed and rescheduled to allow the District time to review records from XXXX and to enable the Parent to attend a doctor’s appointment (Ex. 344-345, 347-348; Exs. D-29, D-31, D-32, D-33).

XXXX acknowledged receipt of a letter from the Parents’ attorney on the issue of transportation. He also stated that he sent a letter to the Parent confirming a conversation between them that the Parent would provide consent for release of information from XXXX regarding the Student and information defining the nature of the Student’s program at XXXX, and a release to provide information to XXXX, informing them of placement of the Student at XXXX. He stated that he received no response to his request for consent (R. 345-349; Exs. D-30, D-34).

XXXX recounted the substance of the CSE meeting held on September 28, 2012, in which it was discussed that XXXX was not an approved school, that it provided small class instruction to Students, and that there was uncertainty as to whether the teachers were certified in special education. He stated that the District sometimes over-accommodates families in a good faith effort to work with them and in an attempt to resolve the Parents’ issues with the District. He stated that there was not a finding by the CSE as to whether or not the programs were comparable (R. 349-351; Ex. D-35).

XXXX testified regarding the program at XXXX based upon information he found on the Internet and during the course of testimony in another Impartial Hearing. He stated that XXXX is a private school that follows a specific methodology; that it was a XXXX with small class instruction; that the instructors are not necessarily certified as special educators; that their staff does not directly provide special education; that there are no certified counselors, school psychologists, social workers, or speech providers; that the director of the school is not certified as an administrator in New York State, and that she is not certified as a teacher; that he had concerns about the number of students in the school, in terms of the social component of the Student’s growth; that there were only 4 teachers in the school; that students were grouped in grades XXXX; and that there was between 25 and 40 students in the entire school (R. 352-356, 366-367, 375- 378).

XXXX stated that he was not familiar with the Student until he received a copy of the Parent’s letter to the District Clerk rejecting the CSE’s proposed program for the XXXX school year, the Student’s XXXX grade year. He stated that upon receiving the letter, he contacted the Principal to see whether she was aware of any problems with the IEP for the XXXX grade. He also sent a letter to the Parent advising that the letter she sent to the District Clerk would be treated as a request for a CSE review to discuss the services that were recommended by the CSE Subcommittee on May 11, 2012, and to discuss her concerns to seek a different placement. On June 28, 2012, the Parent requested a complete copy of the Student’s CSE folder, which was provided by the District on June 29, 2012 (R. 806-810; Exs. D-24, D-25, D-26, D-27, D-28).

On cross-examination, XXXX testified that on June 19, 2013, the CSE recommended what it believed was an appropriate program for the Student, even though the Parent expressed dissatisfaction with the program that was being offered. He also testified, and the IEP minutes reflect, that a re-evaluation was to be conducted, that addtional educational records were needed, and that the CSE would reconvene to consider the additional information. He stated that the CSE made a final determination regarding an appropriate program and placement for the XXXX school year, but agreed to reconvene to review the re-evaluation and additional educational records (R. 1491- 1503; Ex. D-41).

XXXX testified that upon receipt of the Parent’s 10-day notice stamped received on August 21, 2012, he issued a letter stating that a CSE meeting would be scheduled. On September 4, 2012, XXXX received a letter from the Parent’s attorney regarding the provision of transportation for the Student to XXXX. An invitation letter for a CSE meeting was sent to the Parents dated September 7, 2012. The Parent suggested rescheduling the meeting, and it was rescheduled upon consent of the parties and their attorneys until September 28, 2012 (R. 811-813, 1017-1018, 1020; Exs. D-29, D-30, D- 31, D-32, D-33).

In a letter dated September 13, 2012, XXXX confirmed that, in a conversation between himself, XXXX, the District’s Chairperson for the CSE, and the Parent on that day, the Parent agreed to provide consent to the District for release of information from XXXX regarding the Student and the nature of XXXX program, as well as a release of information for the District to provide XXXX with notice of the placement of the Student at XXXX (R. 814-815, 1789; Ex. D-34).

XXXX stated that the purpose of the CSE meeting held on September 28, 2012 was to discuss the issue of transportation of the Student to XXXX for the XXXX school year. XXXX testified that he determined to provide transportation to the Parents as a good faith gesture. However, he also testified that the CSE determined to grant transportation to the Student. Minutes from the CSE meeting indicate that transportation was agreed upon by the CSE (R. 815-818, 856, 1022-1025; Ex. D-35).

XXXX testified that he asked the Parent to sign a release to enable the District to obtain information from XXXX and XXXX during the XXXX school year and that he did not receive any information from either school (R. 1029, 1037-1038).

XXXX testified that he chaired a CSE meeting held on June 19, 2013, for an annual review for the Student for the XXXX school year. He stated that during the meeting, he called XXXX and XXXX by telephone to see whether they had a release to send information to the District. XXXX replied that they had no release, and they could not send the District anything. The Parent did not agree for XXXX to participate in the CSE meeting and to provide information. XXXX stated that they could send a release immediately and it was faxed to XXXX. The Parent stated that she would review it with her husband and would bring it back the next day. XXXX also provided the Parent with three XXXX releases for the release of information to the District from XXXX, XXXX, and XXXX (R. 1038-1046; Exs. D-41, D-42A).

XXXX testified that following the telephone conversations with XXXX and XXXX, the Parent asked what program the District could offer the Student. XXXX explained that the CSE needed information that would be helpful to look at other programs that were located outside of the District. He also stated that the CSE would develop a program, based on the knowledge that they had, and there was an agreement that the District would conduct updated testing. XXXX stated that he learned of XXXX’s testing around the time of the meeting, but that the Parent never made a request to treat

XXXX’s evaluation as an independent educational evaluation for reimbursement1 (R. 1046-1049).

XXXX stated that on June 19, 2013, a program was recommended by the CSE for the XXXX school year based on the information that the District had, and that he stated to the Parent that they would reconvene to discuss other alternatives after receiving updated educational records. He stated that the records did not come and the CSE did not reconvene. The Parent testified that there was no recommendation for placement at that meeting, because the whole meeting was about finding a placement. She also testified that the CSE offered the same program they offered at XXXX, and that she did not receive an IEP until after the start of the school year, on September 11, 2013, during the course of a meeting between herself and the Principal of XXXX. On cross-examination, XXXX testified that he did not provide a consent form to the Parent to consider alternate outside placements at the June 19, 2013 CSE meeting. On redirect examination, XXXX testified that at the CSE meeting, the Parent did not provide any records or information from XXXX or XXXX (R. 1049-1053, 1593-1594, 1663, 3377- 3387; Ex. D-41).

In a letter received by the District on August 26, 2013, the Parents provided a 10- day notice of the planned removal of the Student from public school and placement in a private school, and that they would be seeking reimbursement for all costs associated with the private placement. On September 11, 2013, the Parent met with XXXX and XXXX to discuss the Student’s placement for the XXXX school year. XXXX told the Parent that he did not receive the signed consents for XXXX and XXXX. The Parent said that she already signed the consents and had copies at home. XXXX asked for a copy and offered to drive to the Parent’s home with her to obtain the copy. XXXX called XXXX during the meeting and they stated that they had no release from the Parent, and she stated, “That’s two school districts that lost my consents.” XXXX testified that he asked the Parent to re-sign the form so that it could be forwarded to XXXX and the Parent declined. The Parent did not provide any records or information from XXXX or XXXX at the September 11, 2013 informal meeting (R. 1305-1310, 1663-1664, 3466- 3467; Ex. D-50).

The Parent testified that the District did not send a bus to transport the Student to XXXX at the beginning of the XXXX school year, even though she received a bus pass in the mail indicating that the Student would be transported to XXXX. She contacted the Transportation Department and was told that XXXX canceled bus transportation to XXXX the day before and they could not send a bus without XXXX’s approval. The Parent also testified that on September 11, 2013, the District sent a school bus to transport the Student to XXXX, that she was upset, and that she went to XXXX to speak with the Principal. She stated that she met with the Principal for between 1-1/2 to 2 hours, and the Principal told her that the Student was not scheduled to go to XXXX, XXXX name was not in the computer, and that someone from XXXX’s office faxed blank consents to the Parent for signature, which angered the Parent. She then went to the District Office to speak with XXXX (R. 3468-3483; Ex. P-G).

The Parent testified that she went to the District Office and asked to speak with XXXX or XXXX, and that it was an emergency. She met with both XXXX and XXXX, and it was a lengthy meeting that lasted a couple of hours. She stated that she did not understand why there was no school bus and why the Student was not registered in school. She stated that XXXX said the Student was not in school because XXXX was not registered or enrolled, and that XXXX IEP recommended placement in a XXXX. The Parent responded that she never received a copy of a finalized IEP for the XXXX school year prior to the start of the school year. The Parents provided transportation for the Student’s attendance at XXXX a few days after the start of its school year. On cross-examination, the Parent testified that she did not take any steps to re-register the Student in the District because he began at XXXX (R. 3483-3486, 3493-3496, 3502- 3503, 3676-3680).

XXXX testified that at the September 11, 2013 meeting, the Parent asked, “Can you tell me a program,” in that she disagreed with the CSE’s recommendation for placement for the Student at XXXX. He stated that the Parent was looking for a XXXX, and XXXX responded that he could not describe a program because he did not have a release, and he didn’t have the information necessary to make a judgment in terms of what program would best meet the Student’s needs. On cross-examination, he testified that he provided the Parent with a consent form to release information to XXXX in an attempt to work with her. The form was provided outside the confines of a CSE meeting. The Parent did not sign the form and she never returned it to the District. Discussion continued regarding the XXXX option and an appointment was arranged to visit the CSE’s recommended program. He testified that the Parent canceled the appointment due to a family emergency, and she never rescheduled the observation. XXXX sent a letter to the Parent dated September 12, 2013 reiterating XXXX’s request for completion of an XXXX and enclosing duplicate releases for XXXX, XXXX, and the XXXX. XXXX asked the Parent to sign the consents and he would expedite the document production so that it could be reviewed at the CSE meeting scheduled for September 18, 2013. XXXX testified that the Parent did not return the consents and no records were received in preparation for the CSE meeting. He also testified that he intended for the CSE to review XXXX’s updated XXXX evaluation and educational records in the context of considering a revision to the IEP for the XXXX school year. The Parent canceled the CSE meeting in two e-mails to XXXX sent at 9:00 p.m. on the night before the meeting and at 10:39 a.m. on the day of the meeting. XXXX sent a letter to the Parents in response (R. 1311-1313, 1315-1321, 1594-1600, 1606-1613, 1671; Exs. D-41, D-53, D-54, D-55, D-56).

XXXX testified that he tried to reschedule the canceled CSE meeting for October 9, 2013. He also re-sent consent forms for the Parents’ signatures. The Parent replied that she was confused as to the need for the CSE meetings. XXXX testified that he told the Parent at the September 11, 2013 meeting that if the CSE was going to look at a change in placement there had to be a CSE meeting. He stated that the Parent did not agree for a CSE meeting to be held in the XXXX school year (R. 1326-1335; Exs. D-57, D-61, D-62).

XXXX reviewed a number of documents during the course of his testimony and testified that he received the documents only as part of the Parents’ document production in preparation for the Impartial Hearing, including the following: XXXX Progress Report for the XXXX school year (Ex. P-B); a consent for release of records dated September 20, 2013 (Ex. P-C); a letter from XXXX “To Whom It May Concern” confirming enrollment of the Student (Ex. P-D); XXXX Progress Report for the XXXX school year (Ex. P-J); a Prior Written Notice from XXXX dated April 9, 2013 (Ex. P-K); an XXXX IESP dated April 9, 2013 (Ex. P-L); an XXXX Evaluation conducted by XXXX (Ex. P-M); a signed District form Consent for Release of Confidential Information (Ex. P- OO); and an IESP from XXXX dated December 17, 2012 for the XXXX school year (Ex. P-QQ) (R. 1335-1337, 1349-1350, 1353-1354).

In reviewing the IESP for the XXXX school year, XXXX testified that the amount of XXXX services to be provided to the Student, 4 times per year for 1 hour, is inappropriate for the Student and does not comply with the Commissioner’s Regulations, which requires XXXX to be provided a minimum of XXXX. His testimony was the same with respect to the IESP for the XXXX school year (R. 1348-1349, 1355- 1358; Exs. P-L, P-QQ).

XXXX stated his belief that the program recommended by the CSE for the Student for the XXXX school year was appropriate, based on the information the District had. He stated that historically, the self-contained classes in XXXX and XXXX met XXXX needs and XXXX was making progress. He also stated that the Student would be placed in XXXX, and XXXX would receive XXXX, leaving XXXX. XXXX had been continued based upon knowledge they previously had regarding his XXXX (R. 1054- 1055; Ex. D-41).

On redirect examination, XXXX testified that that XXXX was prepared to implement the program recommended by the CSE at its June 19, 2013 CSE meeting, on September 9, 2013; that the Parent did not call him to say that the Student would not be attending XXXX on September 9, 2013; that he was unaware as to whether the Parent contacted XXXX to inform them that the Student would not be attending the school on September 9, 2013; and that the Parent did not tell XXXX why she refused to provide XXXX with the XXXX and the XXXX. XXXX stated that he had not received an XXXX or XXXX from the Parent as of the date of his testimony on April 9, 2014 (R. 1664-1670; Ex. D-54).

XXXX is a certified special education teacher who has been employed by the District for 10 years. She has served in the capacity as a teacher in the District’s XXXX program as well as a XXXX and a XXXX and XXXX grade special education teacher. She is certified in the XXXX and XXXX teaching methodologies (R. 640-643, 748-752).

XXXX first became familiar with the Student when XXXX was referred to the XXXX team in the XXXX grade, due to XXXX teacher’s concerns that XXXX was not progressing in the general education setting as compared with XXXX peers. The Student’s XXXX, XXXX, and XXXX skills were low, and XXXX were an issue. She testified that as part of XXXX services, the Student was taught using the XXXX XXXX program and XXXX. XXXX services began in the middle of XXXX grade with XXXX. XXXX testified that although the Student made progress by the end of the XXXX grade,

XXXX did not make as much progress as some of the other students using the programs. She stated that XXXX continued to be a concern and XXXX grade teacher felt that it was interfering with XXXX progress (R. 644-647, 657).

XXXX served as the XXXX teacher for the Student in the XXXX grade. She provided a full XXXX model for XXXX for this Student and a peer for XXXX. The service was first XXXX, but the Student was XXXX, so the service was provided XXXX. XXXX testified that the Student had XXXX which slowed down XXXX progress and, at times, caused XXXX. On cross-examination, XXXX stated that the Student experienced XXXX if XXXX. After XXXX, XXXX would have difficulty in “XXXX.” She stated that XXXX (R. 647-652, 738-742, 794, 902-903, 920, 1080-1082, 1140-1145; Ex. P-WW).

On cross-examination, XXXX testified that the XXXX protocol set forth a minimum amount of time that is required for instruction. She stated that, if the Student did not receive XXXX instruction from XXXX, she would have done 45 minutes to an hour with XXXX. However, the Student was given XXXX instruction from both XXXX and XXXX, and she believed that the Student was receiving XXXX instruction in accordance with the protocol (R. 752-755).

XXXX testified that the Student’s XXXX grade regular education teacher, XXXX, also used XXXX in the regular education classroom with XXXX, and worked with XXXX in XXXX and XXXX, but she was concerned that even with the extra help, XXXX was not able to keep up with the class. Both XXXX and XXXX worked on the Student’s XXXX. The Student was not completing XXXX. In or about April 2010, XXXX began working with XXXX after school hours, for approximately one hour per day, on XXXX assignments. The Parent testified that XXXX was a huge hurdle for their family XXXX; that XXXX with XXXX and that it was helpful; and that the Student XXXX, but that she could not remember whether XXXX provided XXXX help to the Student in XXXX or XXXX grade (R. 652-656, 1081-1082, 1084, 2073, 3083-3090).

The Student was referred for evaluation to the CSE during XXXX grade year. On cross-examination, XXXX stated that the XXXX believed the Student should have been referred for evaluation in the early part of XXXX grade, but that the Parents did not agree with the recommendation. She stated that in April of XXXX grade year, the Student was referred for evaluation by the Parent and XXXX. The CSE recommended XXXX for XXXX and XXXX. It also recommended XXXX. Services began on April 13, 2010. XXXX taught the XXXX, as well as XXXX. Two teaching assistants were also present in the room (R. 656-660, 790-791; Ex. D-14).

On cross-examination, XXXX clarified that prior to the Student’s classification, when XXXX received XXXX, XXXX did not receive XXXX. She made sure that the Student had a XXXX. After XXXX was classified, the Student still had XXXX (R. 779- 784).

XXXX testified that the Student functioned in XXXX and XXXX. XXXX was in the XXXX in XXXX. The rest of XXXX educational programming took place in XXXX. XXXX provided XXXX to the Student in XXXX. The students in the XXXX were XXXX (R. 660-664, 1126-1129; Ex. D-89).

XXXX testified that she XXXX Student approximately XXXX (R. 664-666).

XXXX stated that she supported the Student’s XXXX. She communicated with the Parents frequently, and gave them her home phone number, her cell phone number, and her e-mail address. She also used a XXXX. She stated that the Student definitely responded to XXXX (R. 667-672).

XXXX attended the Student’s CSE meeting which was held on April 13, 2010 regarding XXXX placement for the 2010/11 school year, and she agreed with the CSE’s recommendation for the Student to continue XXXX. She was not XXXX teacher in the XXXX grade, although she spoke with XXXX, the Student’s XXXX teacher, who reported that XXXX was progressing, that XXXX had XXXX, and that XXXX and XXXX were sometimes issues (R. 672-675; Exs. D-17, D-68, D-68A).

XXXX was once again the Student’s XXXX teacher for XXXX and XXXX in XXXX grade year, and she XXXX in the XXXX school year for XXXX. Once again, there were two teaching assistants present with XXXX. The Student’s functioning improved since the XXXX grade in XXXX (R. 676-679; Ex. D-20).

XXXX testified that she supported the Student in the XXXX through the XXXX and XXXX, by XXXX (R. 684-687).

On cross-examination, XXXX stated that she had XXXX, but that the Student did not XXXX, despite XXXX. She also stated that she contacted the Parents to express concern that the Student XXXX, and that it was important that XXXX, but XXXX, even with XXXX (R. 1115-1117).

XXXX stated her opinion that the Student required XXXX for XXXX and XXXX. In the area of XXXX, the Student had difficulty XXXX (R. 687-691).

XXXX also stated her opinion that the Student required XXXX in XXXX (R. 691- 695).

XXXX stated that the Student XXXX. XXXX had a XXXX, and XXXX. XXXX achieved all of the goals that were contained in XXXX IEP during the XXXX grade. She stated that the Student’s progress was sometimes XXXX inconsistent, affected by XXXX (R. 695-700; Ex. D-71).

XXXX testified that XXXX and that she spoke with the Parent. She was told that XXXX (R. 703-704, 707-709, 1122-1125, 1146; Exs. D-24, D-69, D-69A).

XXXX stated her opinion that, from the time the Student entered the XXXX grade through the end of XXXX grade year, XXXX made a lot of progress in XXXX. She stated that in the XXXX grade, the student was XXXX. By the end of XXXX grade, XXXX was XXXX approximately XXXX behind XXXX peers, but XXXX was able to participate in XXXX (R. 1155-1158).

XXXX testified regarding her participation in the Student’s annual review for the XXXX school year, XXXX grade year. Discussions ensued regarding the importance of the Student’s ability to XXXX. XXXX reviewed the goals for the XXXX grade and stated she felt they were appropriate for the Student. She also stated that XXXX was added to the IEP with the Parent’s approval to XXXX. She stated that the Parent was an active participant at the CSE meeting, she agreed with the program recommendations and recommended goals, and she did not object to anything contained in the developed IEP. The Student advised XXXX some time after the spring break in XXXX grade that XXXX would be attending a different school for the XXXX grade, and he shared with the other students that he was “not allowed to talk about it, the attorneys are involved.” The Parent confirmed to XXXX that she was looking into an alternate placement some time after the IEP meeting (R. 704-706, 707-713, 716; Ex. D-24).

XXXX stated that the Student’s classification as XXXX was discussed when XXXX was first classified in the XXXX grade, and that the CSE determined to classify the Student as XXXX due to a diagnosis of XXXX. She also stated her agreement with the comments on the proposed IEP for the XXXX school year regarding the Student’s XXXX (R. 719-721, 1109, 1114; Exs. D-13, D-24, P-CC, P-EE).

XXXX stated her opinion that the IEP recommendations for the XXXX school year were appropriate for the Student for the XXXX grade because she knew the program that was coming, she knew the goals which XXXX was working on, where XXXX was leaving off, and where XXXX needed to go. She stated that the goals addressed XXXX (R. 723-724; Ex. D-24).

XXXX also stated her opinion that the Student did not require XXXX. She stated that XXXX. XXXX difficulties arose when XXXX (R. 1094-1096, 1165-1167).

On redirect examination, XXXX stated her opinion that the Student needed XXXX in the areas of XXXX, XXXX, XXXX, and XXXX, and XXXX needed a XXXX with XXXX. However, she also believed that the Student should be XXXXX because XXXX is able to XXXX. She stated that XXXX was able to participate in XXXX (R. 1158-1163).

XXXX also stated that the Student needed to participate in a XXXX program in order to make meaningful progress in XXXX due to gaps in XXXX (R. 1663-1164).

XXXX is a school psychologist who has been employed by the District for 16 years. She is assigned to XXXX. She is a certified school community psychologist whose duties include conducting evaluations, classroom observations, obtaining social histories, and having consultations with parents and teachers. She first became familiar with the Student on June 20, 2013, when she received a telephone call from XXXX asking her to conduct updated testing for the Student (R. 950-953).

XXXX testified that she conducted an informal interview with the Student to develop a rapport. She stated that prior to conducting testing with the Student, she spoke with the Parent for approximately 1 hour and 15 minutes regarding scheduling an appointment, and that the Parent shared some background information about the Student and she also shared some concerns. XXXX also performed select subtests from the XXXX and select subtests of the XXXX for XXXX information. The Parent provided her with a copy of the private testing performed one year earlier by XXXX, so that she could administer subtests that would not be duplicative of XXXX’s testing (R. 953-955; Exs. D-45, D-48, P-W, P-VV).

XXXX stated that she conducted testing on June 24, 2013, and that the testing lasted one day. She described the Student as XXXX; and that XXXX. She also testified that the Student XXXX (R. 955-956).

XXXX described the Student’s XXXX functioning on subtests she administered of the XXXX. On the XXXX (R. 956-957; Exs, D-48, P-VV).

XXXX also administered XXXX testing through the XXXX, and compared the results of her testing with XXXX’s test results one year earlier, just prior to the Student’s unilateral placement at XXXX. She stated that some of the Student’s scores increased and some decreased. The Student’s performance in XXXX (R. 960-963; Exs. D-45, D-

48, P-W, P-VV).

XXXX stated that in the area of XXXX. XXXX testified that the Student continues to meet the criteria for continued academic support. She stated that when she finishes an evaluation, she reviews the results with the parent, she takes a social history, and she presents the report to the CSE. In this case, XXXX e-mailed a social history form to the Parent, who was away XXXX. She stated that the Parent did not return the completed social history form, she never followed up with XXXX to discuss the test results, and the evaluation was not reviewed by the CSE (R. 963-967; Exs. D-45, D-48, D-49).

XXXX testified that she could not complete the social history update portion of her evaluation, and she made notes to herself on her draft report. She also stated that she had questions about information to be included in the report, and she made notes to herself on her draft evaluation. XXXX mistakenly sent her draft report (which also contained errors relating to the nature of the private school, its location, and the Student’s classification) to XXXX at the CSE Office, after which time she converted her draft report into a final report, without having information from the updated social history, and sent the completed report to XXXX (R. 969-975; Exs. D-48, P-VV).

On cross-examination, XXXX stated that on July 17, 2013, she was contacted by a secretary through e-mail asking whether her report was ready, as XXXX wanted to schedule a CSE meeting. XXXX stated that she scored the test but she had not yet written the report, and she still had not received updated social history information from the Parent. She mistakenly sent the draft report to XXXX sometime in the first week of school, and shortly thereafter, she “cleaned up” the report and resubmitted it. She still felt that the report was unfinished, even though finalized, because it was missing updated social history information from the Parent, as well as XXXX (R. 990-998).

On cross-examination, XXXX confirmed that she sent an e-mail to the Parent on June 25, 2013 attaching a social history update form to be completed by her as part of the Student’s updated testing. On July 20, 2013, XXXX sent the Parent a second e-mail requesting updated information from the social history form. On July 31, 2013, the Parent responded that she would do her best to get the updated social history to XXXX, and she apologized that she “dropped the ball.” XXXX confirmed on redirect examination that she never received an updated social history for the Student up to and including the date of her testimony, on April 8, 2014 (R. 1278-1279; Exs. D-49, D-77, D- 78).

The Parent testified that she did not receive a copy of XXXX’s report2 and that a CSE meeting was not scheduled after XXXX completed her report. XXXX testified that he attempted to schedule a CSE meeting in the beginning of the XXXX school year to review XXXX’s report but that the Parent refused to meet. The first meeting was scheduled for September 18, 2013 to review the Student’s placement and XXXX’s updated psychoeducational evaluation. The Parent canceled the CSE meeting in two e- mails to XXXX sent at 9:00 p.m. the night before the meeting and at 10:39 a.m. on the day of the meeting. XXXX attempted to reschedule the meeting for October 9, 2013, but the Parent would not attend and expressed confusion about the need for a CSE meeting (R. 1315-1335, 3460, 3657-3658; Exs. D-48, D-55, D-56, D-57).

XXXX has been employed by the District for 21 years. He has been the Chairperson for the District’s CSE for 5 years. In that capacity, he chairs almost all of the initial eligibility determination meetings, coordinates services for all parentally-placed students, handles XXXX County caseloads, and holds all subcommittee meetings for students in XXXX programs. XXXX has also served as a special education teacher at the elementary and middle school levels, and as a technology teacher/trainer. He is certified in Secondary Education English 7 to 12, Elementary Education, and Special Education, and he has school building leader and school district leader certifications (R. 1788-1791).

XXXX first became familiar with the Student when XXXX attended XXXX and was initially referred to determine eligibility for classification, in April or May of 2011. He stated his knowledge that the Student currently attends XXXX and began there as a student in September 2012. He stated that the Parent provided transportation for the Student to XXXX until sometime in October 2012, after a CSE meeting was held on September 28, 2012 to determine whether the District would provide transportation for the Student (R. 1791-1793; Ex. D-35).

XXXX testified that the CSE considered the similarity or comparability between the program offered to the Student at XXXX and the CSE’s recommended program for the XXXX school year and that a determination was made that they were not similar, but that a decision was nonetheless made at the meeting to provide transportation, based upon legal advice received by both parties. He thereafter stated, however, that there was no determination made as to whether the programs were similar at the CSE meeting (R. 1794-1798, 1807-1809, 1815-1817, 1823-1824, 1833).

XXXX testified that he contacted the Director of XXXX, XXXX, prior to the CSE meeting held on September 28, 2012 regarding XXXX in preparation for the September 28, 2012 CSE meeting. XXXX testified that a similar CSE meeting was not held on the issue of transportation for the XXXX school year (R. 1827-1834).

XXXX has been employed by the District for 22 years and is currently a XXXX grade teacher at XXXX. She has 62 credits beyond her Masters Degree, she is certified in XXXX, and she just completed her international certification by XXXX (hereinafter referred to as “XXXX”). XXXX described the process of earning XXXX certification, in that she needed to XXXX (R. 1852-1856).

XXXX also testified regarding the XXXX certification, which she described as a little more involved than the XXXX certification. She was required to work with two different groups of students on 100 lessons. There is also a videotaped XXXX lesson; observations by a mentor; attendance at classes; and a written essay exam. It took XXXX 2 years to complete the certification (R. 1856-1857).

XXXX first became familiar with the Student in the 2009/10 school year, when XXXX was a student in her general education XXXX grade classroom. She described XXXX as XXXX. XXXX was XXXX (R. 1857-1859).

XXXX testified that the Student had difficulty XXXX (R. 1859-1863).

XXXX testified that the Student’s difficulties were XXXX in nature. She stated that she had XXXX in her general education XXXX grade class. Those students were XXXX. They spent the rest of their day XXXX with XXXX. XXXX testified that she tried to work with the Student in the morning before school but she could not do a full XXXX program because it is very time-intensive. She used pieces of XXXX when they were practicing XXXX skills. She stated that in the classroom, she would try to provide whatever support she could give XXXX, but XXXX needs were pretty extensive. The Parent testified that XXXX told her that the Student needed one-to-one, and she did not have the time and availability to give XXXX what she felt XXXX needed. The Parent agreed to have the Student try instruction with XXXX (R. 1865-1869, 3054, 3057-3058).

XXXX testified that she worked with the Student in the morning for approximately 20 minutes, after having mentioned to the Parent that she was seeing the Student’s deficits, and the Parent was willing to send XXXX in to see if she could help XXXX. However, it was hard for XXXX to be able to give XXXX everything she wanted to be able to give XXXX. She stated that there were no XXXX issues with the Student coming in for extra help at XXXX. She did not recall the process, but testified that at some time in late November or December 2009, the Student XXXX every day with XXXX for the XXXX and XXXX (R. 1869-1871, 1878-1881, 2074-2075).

XXXX stated that she spoke with XXXX in passing to let her know what the general theme of the class was, and XXXX would do lessons in class following the XXXX. She did speak specifically with XXXX about the XXXX instruction as they are both certified XXXX providers. XXXX testified that she employed XXXX strategies with the Student in the area of XXXX (R. 1883-1888).

XXXX testified that during the XXXX, some of the students in XXXX’s class had XXXX. She stated that towards the end of the 2009/10 school year, the XXXX, rather than XXXX would be in her classroom, and she spoke with XXXX to let her know she XXXX. On cross-examination, she described her classroom as XXXX (R. 1888-1892, 2104-2105, 2114-2118, 2133; Ex. P-GGG).

XXXX stated that she had conversations with the Student about XXXX, and that the Student was XXXX. XXXX stated that she had many discussions with XXXX about XXXX and about understanding that XXXX was still XXXX. XXXX did not recall that the Student was referred to the CSE during XXXX grade year (R. 1896-1898).

XXXX remembered speaking with XXXX and with XXXX about XXXX. She did not remember participating in the Student’s CSE meeting on April 13, 2010. She recalls the Student participating in XXXX’s class prior to April 13, 2010, but not since the very beginning of the year. On cross-examination, she stated that the Parent agreed for the Student to attend the XXXX and XXXX with XXXX prior to XXXX classification (R. 1899- 1907, 2076-2078; Ex. D-14).

XXXX testified that during the Student’s XXXX grade year, XXXX needed additional supports in XXXX. She stated that XXXX needed help XXXX (R. 1911-1915, 2056-2058).

XXXX stated that she spoke with the Student’s parents early in the 2009/10 school year about her academic concerns for XXXX, and that is what led to XXXX. She stated that the Parents were very supportive and willing, but they did not have a lot of knowledge about XXXX, and she provided them with information she acquired over the years so the Parents had a better understanding. She stated that the Parent was not aware of how extreme the situation was. XXXX was in favor of the Student going into XXXX’s class because she tried to give XXXX what she could give XXXX in her classroom, and it was not enough. She did, however, use XXXX strategies with the Student when XXXX was present XXXX. She was unable to XXXX to the Student in her classroom. On cross-examination, XXXX recalled that the Student XXXX (R. 1915- 1919, 2048-2050, 2053-2056, 2058-2067, 2074-2075).

XXXX testified that she noticed issues with the Student’s XXXX and XXXX, and that XXXX definitely needed XXXX (R. 1920-1922).

XXXX stated that at the end of the 2009/10 school year, the Student was still XXXX at grade level. After XXXX went to the XXXX, XXXX, who was also XXXX. XXXX was no longer XXXX. On cross-examination, XXXX stated that one-half of the Student’s XXXX (R. 1923-1926, 2020-2022, 2134).

XXXX testified that it was her responsibility to complete the Student’s XXXX grade report card during the XXXX and that XXXX completed it for the XXXX and XXXX, except for the XXXX, as she was XXXX. She also stated that XXXX, and that if a student XXXX, he or she would XXXX (R. 1926-1932; Ex. P-WW).

XXXX had no recollection of attending the Student’s CSE meeting for the XXXX school year, and she did not recall seeing the Student’s IEP. She did, however, remember XXXX, to XXXX, XXXX, and to XXXX regarding the fact that the Student was still struggling with XXXX (R. 1932-1940; Ex. D-17).

On cross-examination, XXXX stated that she agreed with the CSE’s recommendations for the Student through the end of the 2009/10 school year. She stated she did not recall whether the Parent agreed with the IEP recommendation, but that the placement did occur. Moreover, XXXX stated she never indicated to anyone in the District that she disagreed with the CSE’s recommendations for the Student for the 2010/11 school year. On cross-examination, she confirmed that the Student needed support in XXXX, XXXX, and XXXX that could not be provided in XXXX (R. 2078-2081, 2131-2132).

XXXX reviewed the Student’s IEP for the 2009/10 school year and stated the services listed on the IEP were implemented prior to the start date of April 13, 2010. She also testified that once an XXXX, the Student spent XXXX. She stated that she had concerns for the Student XXXX during XXXX grade year. XXXX still continued to struggle with XXXX, and XXXX. On cross-examination, she stated that it was possible that the Student XXXX to receive XXXX from XXXX, a XXXX n the District, but she had no specific recollection (R. 1979-1987, 2044-2046, 2050-2053; Exs. D-75, D-76).

XXXX reviewed the IEP for the Student for the 2010/11 school year and stated her opinion that the Student needed XXXX, but that XXXX. She was not privy to information regarding the Student and XXXX programs at XXXX during his XXXX and XXXX grade years (R. 1947-1948, 2024; Ex. D-17).

XXXX reviewed the Student’s IEP for the XXXX school year and stated that the Student would not have received what XXXX needed in XXXX, although she did not know how many students would have been in the Student’s XXXX group (R. 2025-2030; Ex. D-24).

XXXX also reviewed the Student’s IEP for the XXXX school year, and stated her concern that XXXX (R. 2033-2036; Ex. D-41).

On cross-examination, XXXX stated that she did not express concern about the XXXXbecause XXXX was struggling significantly with XXXX; XXXX had XXXX support, and there were no other options; she could not give XXXX what XXXX needed in the XXXX; the XXXX teacher couldn’t provide enough support for XXXX to make the progress XXXX needed; and she agreed with the recommendation for XXXX because she did not believe something can be deemed inappropriate unless it was tried, and she did not know of another option to provide the Student to give XXXX what XXXX needed. She stated that the Student benefits in XXXX through XXXX (R. 2102-2104, 2128- 2131).

XXXX testified that in the XXXX school year, after the Student had left the District’s placement and had been attending XXXX, she used XXXX as one of her two groups that were required in connection with her certification by XXXX. Beginning in the fall of 2012, XXXX served as the Student’s tutor. She tutored the Student in XXXX home. She stated that in order for her to obtain her XXXX certification, she had to work with students who were having difficulty with XXXX. The Student and XXXX served as one of her two groups of students. The sessions lasted between 1 hour and 1-1/2 hours, twice a week. The Student’s baseline was established through the use of a program called XXXX. XXXX described the program in detail and stated that it was very similar to XXXX in that it is XXXX (R. 1922-1923, 1987-1997, 2005-2010, 2012-2013).

XXXX stated that she tutored the Student after XXXX came home from XXXX, sometime between 4:30 p.m. and 5:00 p.m. The Student was tired and sometimes it was difficult to keep XXXX on task. On cross-examination, XXXX stated that she was invited to stay for dinner after her lesson, and that she stayed once or twice. XXXX visited XXXX in or about February 2013 and spoke to staff about their training and what they had to do to become XXXX teachers. During the course of the day, she observed the Student for approximately 35 to 40 minutes. Her purpose in visiting XXXX was not to observe the Student. She said that during the times she was present in the Student’s home, she did not XXXX (R. 1997-2005, 2036-2038, 2084).

XXXX testified that during the XXXX school year, the Student’s progress was slow, and XXXX had a lot of deficits in the basics of XXXX. She observed progress, but that the Student was still struggling. She stated that XXXX, and it was XXXX. She did not know whether it was XXXX. She believed that her XXXX tutoring sessions helped XXXX progress. She stated that she did not see growth in the Student XXXX (R. 2015- 2020, 2084-2086).

XXXX has been licensed as a XXXX in the State of New York since 2005. Her specialty is in XXXX. She engaged in private practice for 6 years, concentrating on XXXX. Since December 2011, she has worked as a XXXX at the XXXX, and continues there to-date (R. 2156-2159).

XXXX testified that she currently works with XXXX. She has conducted hundreds of XXXX evaluations. She is also the primary director of the externship program at the hospital, and she supervises an extern through the program. She also supervises students, gives talks at rounds, attends rounds, and gives consults. She described rounds as a gathering of professionals where cases are discussed. XXXX stated that she is frequently a part of rounds in XXXX, where they discuss cases of children that she tested (R. 2160-2161).

XXXX also belongs to professional associations, which include the XXXX. She has also testified in court on a XXXX case and at a school district administrative hearing. XXXX was qualified as an expert in XXXX (R. 2161-2162).

XXXX stated that she first became familiar with the Student when she conducted a XXXX evaluation with XXXX on May 18, 2012, at the request of XXXX Parent. She conducted an interview, which lasted one hour, to obtain pertinent background information from the Parent that would enable her to create a test battery to administer to the Student. She described the differences between a XXXX, which looks at XXXX, and a XXXX, which looked at XXXX, such as XXXX and XXXX. The actual testing lasted 5 hours plus breaks (R. 2163-2168).

XXXX testified that after conducting testing, she provides a draft report to the Parent for review and that a “full feedback” session occurs. In this case, there was a phone feedback session in August 2012. XXXX provided the final report to the Parent and eventually released a copy to the District, once she received a release from the Parent allowing her to do so. The Parent testified that she advised the District that she was obtaining an independent evaluation for the Student, but she did not state her intention to obtain the evaluation at public expense. She also stated that she provided written consent for the release of XXXX’s report to the District some time in 2012, but that she was unable to find her copy of the consent form. The documentary evidence shows that the Parent executed a consent form on June 24, 2013, more than a year after the testing was conducted (R. 2180-2182, 3245-3257, 3612-3614; Exs. D-45, P-W, P-XX).

XXXX administered a number of tests as part of her evaluation. She administered the XXXX. Since the Student was administered XXXX, XXXX determined to administer only the XXXX. She stated that the Student scored lower on her administration of the XXXX, which indicated to her that XXXX had not been making appropriate gains in XXXX skills, and it continued to be an area of weakness (R. 2184- 2188; Exs. D-6, D-45).

XXXX also administered subtests from the XXXX. The Student’s overall XXXX (R. 2188-2192; Ex. D-45).

In the area of XXXX (R. 2192-2194; Ex. D-45).

In the area of XXXX functioning, the Student scored XXXX. However, there was variability in XXXX XXXX. XXXX testified that when she sees variability in XXXX, that typically means there are weaknesses in certain areas of XXXX (R. 2195, 2230-2231; Ex. D-45).

XXXX reviewed the Student’s scores on the XXXX (R. 2231-2233; Ex. D-45).

In the area of XXXX, when XXXX performance was consistent with individuals who have XXXX (R. 2233-2235; Ex. D-45).

In the area of XXXX (R. 2235-2242; Ex. D-45).

XXXX also administered selected subtests from the XXXX (R. 2244-2250; Ex. D- 45).

XXXX administered subtests on the XXXX (R. 2251-2252; Ex. D-45).

XXXX stated that the XXXX (R. 2252-2260; Ex. D-45).

XXXX also administered the XXXX (R. 2260-2262; Ex. D-45).

XXXX’s conclusions based on the results of her testing was that the Student demonstrates areas of weaknesses that are consistent with XXXX. She recalled reviewing reports provided by the Parent such as testing that had been done in 2010, a XXXX report, an IEP, and doctor’s notes from XXXX (R. 2263-2265).

XXXX made a number of recommendations in her report based on the Student’s XXXX issues. First, that the Parents share the results of her evaluation with the District to help them better understand the Student’s current XXXX functioning for appropriate academic planning. The evidence shows that the Parent executed a release of records form for XXXX to provide the testing results to the District one year after the testing occurred, on June 24, 2013. She also provided XXXX with a copy of the same report on or about June 20, 2013, to be used in connection with the Student’s triennial testing. On cross-examination, XXXX stated that she was not aware as to whether the Parents shared the results of her testing with the District at the time she provided them to the Parents. She stated that she understood that many parents did not share reports, and choose to keep it a private evaluation, but that she always believed that information from outside sources helps a school district come up with a plan, and she would wonder why it was not shared (R. 2265-2266, 2370-2371, 2381; Exs. D-44, D-45, D-45A, D-77).

Next, XXXX recommended that XXXX (R. 2266-2273; Ex. D-45).

In addition, XXXX confirmed the Student’s XXXX and stated that the District should provide, or continue to provide, XXXX to XXXX and to closely monitor the Student’s achievement and re-evaluate XXXX in one to two years (R. 2273-2275; Ex. D- 45).

XXXX stated that she did not know whether the District had a CSE meeting in or after June 2013 and that she was not contacted by anyone in the District to participate in a CSE meeting. XXXX listed the documents provided by the Parent prior to conducting the Student’s evaluation as follows: a photocopy of notes from XXXX; XXXX; state test scores from the 2010-2011 school year; a report by XXXX dated July 7, 2010 and a letter from him dated May 16, 2012; an XXXX dated July 2010; a XXXX dated March 5, 2010; a XXXX evaluation by XXXX dated March 14, 2010; New York State testing from 2011-2012; and a letter from XXXX dated April 12, 2010 (R. 2295- 2300).

On cross-examination, XXXX stated that the XXXX programming that the Student received during the XXXX grade in the District (i.e., the XXXX school year) was appropriate, assuming that the Student was XXXX (R. 2372-2374, 2428-2431; Ex. D- 20).

Also on cross-examination, XXXX reviewed the Student’s IEP for the XXXX school year and stated her agreement with the recommendation for XXXX; she stated her agreement with the comment regarding the Student’s progress in XXXX, based on a comparison of the results of testing; that the Student has difficulty completing XXXX assignments because of XXXX, although she stated her opinion that the Student’s XXXX difficulty is XXXX (R. 2376-2382; Ex. D-20).

XXXX also reviewed the Student’s goals contained in the IEP for the XXXX school year and stated that they are appropriate given her knowledge of the Student’s needs; that XXXX are appropriate and consistent with the recommendations contained in her evaluation; that testing accommodations, including XXXX, were appropriate and consistent with the recommendations contained in her evaluation; and that she agreed with the statement contained in the IEP that the Student should not participate in XXXX and XXXX, but would be placed in XXXX (R. 2383-2385; Ex. D-20).

XXXX reviewed the Student’s IEP for the XXXX school year and stated her agreement that XXXX continued to need XXXX and XXXX; that the Student could benefit from XXXX; that she was in agreement with the XXXX’s statement contained in the minutes that the Student was capable of doing work but that it takes XXXX. On redirect examination, XXXX stated that a qualified, certified XXXX is necessary to allow the Student to XXXX because they have knowledge of what to do with a child who has XXXX. They would also need to be trained on how to identify and remediate XXXX, and be able to implement strategies that are going to move a child forward (R. 2386-2395, 2437-2439; Ex. D-24).

XXXX reviewed the goals contained in the Student’s IEP for the XXXX school year and stated that XXXX (R. 2395-2397; Ex. D-24).

XXXX reviewed the supplementary aids and services contained in the Student’s IEP for the XXXX school year and stated that XXXX was appropriate for the Student (R. 2397-2398; Ex. D-24).

XXXX testified that it might be appropriate for the Student to be placed in a setting that XXXX, but that she would have to review their approach and that typically, XXXX programs incorporate strategies and their philosophy has been found helpful with children with disabilities. However, she has no knowledge of XXXX, she has never visited XXXX, she has not spoken with anyone from XXXX, and she never observed the Student in XXXX placement at XXXX. On redirect examination, XXXX stated that her definition of special education services would be any type of remediation or program that is going to provide a student with the support that is needed to master a skill (R. 2399-2402, 2437).

XXXX compared the results of her XXXX testing, which occurred at the end of the Student’s XXXX grade year, with the results of XXXX’s testing, conducted after the Student attended XXXX. She agreed that the Student’s XXXX decreased on XXXX’s administration (although both scores fell in the XXXX range) but that she did not know why, and it could have been attributed to XXXX. However, XXXX’s report indicates that the Student “XXXX” (R. 2404-2406; Exs. D-45, D-48).

In the area of XXXX, the Student’s score decreased from XXXX (R. 2406-2414; Exs. D-45, D-48).

In the area of XXXX the Student’s score decreased from XXXX (R. 2414-2421; Exs. D-45, D-48).

XXXX also reviewed the Student’s IESP for the XXXX school year and stated that she could not render an opinion as to whether XXXX is an appropriate service given the Student’s needs. She stated her belief that a XXXX is different than a public school, that she did not know the difference between XXXX, and she did not know what the curriculum at XXXX was and how it was addressing XXXX needs (R. 2423-2428; Ex. P-QQ).

XXXX also compared the results of XXXX’s XXXX testing in 2010 with the results of her testing in 2012. She stated that in XXXX, the Student scored XXXX (R. 2303- 2305, 2351-2354, 2360-2364, 2367-2370, 2433-2435; Exs. D-6, D-45).

XXXX reviewed XXXX’s report and stated her opinion that it was not a complete picture of the Student, as it does not test for issues with XXXX. XXXX stated that she did not believe that the Student should be classified as XXXX (R. 2318-2326; Ex. D-48).

XXXX testified that after conducting her evaluation in 2012, she recommended for the XXXX school year XXXX (R. 2336-2337).

XXXX also testified that taking into account XXXX’s evaluation, her knowledge of the Student based on a review of the records, and her expertise, for the XXXX school year, the Student should be XXXX (R. 2338-2339).

On cross-examination, XXXX stated that the remediation she envisions for the Student would consist of XXXX (R. 2349-2350).

XXXX stated that the Student would also need to be taught in XXXX (R. 2339- 2348).

XXXX is the Founder and Co-Director of XXXX. The other Co-Director is XXXX, the Parent’s sister. XXXX has Bachelor’s Degrees with a double major in English and French. On cross-examination, she confirmed that she does not have a New York State teaching certificate or a certificate in administration of a school. She stated her belief that XXXX has a New York State teaching license, in that she attended XXXX, but she was not sure of the completion status. The bio of XXXX in evidence does not contain any information confirming that she has a New York State teaching license. XXXX also stated that XXXX is not certified as a school district administrator, and she had no official training teaching students beyond the XXXX. She characterized XXXX’ role at XXXX as “primarily in charge of the finances of the school.” XXXX testified that she was in the newspaper setting for some time, and then she began in the XXXX field. After two years of teaching in the XXXX environment, she took a XXXX training course. The course was broken down into specific components, including the philosophy behind XXXX, the methodology, and the curriculum areas, including XXXX. There are also courses on XXXX. A very large portion of the course work was observation and record keeping. XXXX testified that in a XXXX classroom, each child is working at his or her own pace, and it is important that the teachers keep very detailed records on what each child is doing every day in the course of the week, a month, and a year. On cross-examination, XXXX confirmed that her teaching experience was limited to XXXX classrooms, and that she has no training with teaching children beyond the XXXX grade (R. 2495-2497, 2775, 2781, 2783-2785, 2789-2791; Exs. D-82, D-83).

XXXX described XXXX (R. 2497-2500).

At the time XXXX received her certification, she was a head teacher at XXXX School, and she also served as the assistant director. The School closed in 2008. As head teacher, her duties included designing lesson plans and presenting all of the lessons 1:1 or in a small group of children. She was also responsible for XXXX conference reports and for all parent correspondence. She served as the assistant director for 2 years and as head teacher for 5 years. At the time the school closed, XXXX was serving as the assistant director/office manager. On cross-examination, she stated that she went from an uncertified teaching assistant to being a head teacher in five years (R. 2500-2502, 2776).

After the School closed, XXXX opened another XXXX school with XXXX, XXXX, because she felt there was a need in the community and there were a lot of children and families that were interested in continuing XXXX. XXXX has been the Director of XXXX for 6 years. Her duties and responsibilities include parent liaison, management of all correspondence with parents, XXXX every morning, overseeing staffing, curriculum, and training, observations in the classrooms and helping out when necessary, and attending CSE meetings for any of the students who receive services through XXXX (R. 2502-2504).

XXXX is a full member of the American XXXX Society, and it is in the process of getting accredited by the Society. It is not yet fully accredited, as the basic requirement is to have all of the head teachers trained in XXXX and having a XXXX curriculum. XXXX stated that all of the head teachers at XXXX are trained and most of their assistants are trained, and they are in the process of having all of their assistants trained. XXXX pays for its teachers to take the XXXX training. In its XXXX classroom, two of the three teachers in each classroom are XXXX-trained, and in the XXXX, ^[3] of the ^[4] teachers are XXXX-trained. She stated that the age of the school is one of the factors in being able to apply for full accreditation by the Society, and at that time, the Society will come to XXXX, inventory the school to make sure it is using the correct materials, and observe instruction in all of the classrooms. On cross-examination, XXXX confirmed that XXXX is not approved by New York State to provide special education to students attending the school (R. 2504-2506, 2792-2793).

XXXX described the educational background and training of the teachers at XXXX. The head teachers all have XXXX training. All of the teachers have college degrees, with the exception of one of its XXXX teachers. In the XXXX classroom, 3 of 4 are New York State certified XXXX teachers. There is one head teacher for the XXXX, one head teacher in each of the XXXX classes, and the other teachers are considered co-teachers. XXXX is the head teacher of the XXXX school, and she has both XXXX and New York State XXXX. XXXX has New York State certification in school XXXX. XXXX has both New York State certification and XXXX certification. XXXX also has New York State certification and XXXX certification. XXXX are the four head teachers in the XXXX school who work together. There is a XXXX, which is comprised of XXXX through XXXX grades, and an XXXX, which is comprised of XXXX through XXXX grade. There is also a XXXX. XXXX is XXXX certified for XXXX school (R. 2506-2511; Exs. D-84, D-85).

XXXX testified that the Student is in the XXXX, and that XXXX teaches XXXX; XXXX teaches XXXX; XXXX and XXXX work very closely with the students in XXXX; and XXXX teaches XXXX and XXXX. On cross-examination, XXXX stated since that XXXX has the most XXXX certification and almost 30 years teaching XXXX, she is the one who gives the Student primarily all of XXXX new lessons no matter the subject area. She acknowledged that XXXX is New York State certified in XXXX, which does not cover XXXX or XXXX grades, and she taught the Student XXXX, XXXX, and XXXX. XXXX works primarily with the XXXX. Teachers work within curriculum areas, rather than with particular grade levels. Teachers move from classroom to classroom, depending on the lesson. In the beginning of the XXXX school year, there are a total of 90 students at XXXX, 36 of which were XXXX, divided into XXXX. There are currently 25 students in the XXXX and 9 students in the XXXX, including the Student. During the XXXX school year, there were 22 students in the XXXX and ^[5] students in the XXXX, including the Student (R. 2511-2514, 2589-2590, 2801-2806; Ex. D-84).

XXXX testified regarding XXXX, the creator of the philosophy and the methodology that XXXX follows. XXXX felt that XXXX (R. 2514-2515, 2779).

XXXX described the tenets of the XXXX philosophy, including XXXX. Each child has an individualized education and can work at his or her own pace (R. 2516-2516).

XXXX testified that she is familiar with the Student, who began XXXX in its summer program in 2012. She was involved in the initial admissions decision. At the XXXX, the procedure is XXXX. During a normal visit, teachers sit and work with the student to determine their learning styles, learning abilities, strengths, and weaknesses.

There are no specific admission criteria at XXXX and no child has ever been turned away. The Parent supplied XXXX with XXXX’s report and she and the Parents discussed the Student’s challenges in XXXX, XXXX, that XXXX had XXXX, XXXX and

XXXX (R. 2518-2520).

On cross-examination, XXXX described the summer 2012 program as four two-week periods. Three days are spent in the classroom receiving XXXX instruction and then practicing with the activities. On the mornings of the other two days, students went on field trips related to the topic they were studying for the 2 week period. In the afternoons, they continued back in a XXXX instruction setting. Classes ran from 9:00 a.m. to 3:30 p.m. There was also before and after school care offered, starting at 7:30 a.m. and ending at 6:00 p.m. XXXX was one of the teachers who taught in the summer 2012 program, but the teachers varied from week to week. Some teachers moved in and out. She stated that the attendance in the XXXX was quite small, and varied from 3 to 5 students, made up of the Student, XXXX, and XXXX’s son, with sometimes one or two addtional students. XXXX’s son did not have a school program that provided for XXXX pursuant to an IEP, and none of the 3 students who had IEPs had XXXX as a special education placement. Students ranged in age from XXXX. None of the students received related services at XXXX in the summer (R. 2829-2835).

Also on cross-examination, XXXX testified that the Student participated in XXXX’s summer school program at the end of grade XXXX, prior to the start of the XXXX school year. The Student participated in 30 out of 39 days over the summer 2013. XXXX was the Student’s primary teacher. The make-up of the student body was similar to the summer 2012, with two students transitioning into the XXXX grade who did not have IEPs, and a third student transitioning in with an IEP. None of the students received related services at XXXX in the summer. The Student took advantage of the after-school program in the summer (R. 2835-2840).

XXXX stated that in the XXXX school year, the Student began at the XXXX as a XXXX grader. The documentary evidence indicates that XXXX was the only student in the XXXX grade for the XXXX school year, and the only XXXX grade student for the XXXX school year. XXXX described the physical environment of the school. It is located in an office building. The XXXX consist of large, open spaces. The XXXX classroom consists of two rooms with an archway between them. The XXXX classroom is one large classroom, with a smaller room with a door that can be used for services, small lessons, and individual lessons. Within the classrooms, the materials are laid out by curriculum area. This Student’s XXXX materials in the XXXX classroom were the same during the XXXX and XXXX school years, consisting of XXXX which XXXX described in detail, to help the Student to XXXX (R. 2520-2521, 2523-2525, 2917, 2925; Ex. D-87).

XXXX described the Student’s curriculum for the XXXX school year. She stated that the Student had difficulty XXXX and XXXX, and they spent a great deal of time XXXX (R. 2525-2526, 2920-2921; Ex. P-FFF).

The school day at XXXX runs from 9:00 a.m. to 3:30 p.m. Within that timeframe, students may select the order in which they work on required activities which, in the XXXX school, include XXXX. Lunch is held the same time every day, as are the specials. She stated that the XXXX is very rigorous, and if a student such as this Student has difficulty XXXX. The Student must cover all curriculum areas every day, with the exception of XXXX. On cross-examination, XXXX confirmed that the students participate in physical education instruction one day per week, that there is no certified physical education teacher at XXXX, and that students independently XXXX. XXXX is held one time per week, although she does not know the instructor’s educational background (R. 2527-2529, 2795-2800).

XXXX stated that the Student seems to be XXXX (R. 2235-2242, 2529; Exs. D-

20, D-24, D-35, D-41, D-45, P-M).

XXXX stated that when the Student first entered XXXX, XXXX spent a larger portion of XXXX. On cross-examination, she indicated that XXXX, an instructor who is no longer working at XXXX, taught the Student XXXX and XXXX during the XXXX school year, and that XXXX had no New York State certifications, but she had XXXX training. The Student read XXXX (R. 2530-2532, 2806-2807, 2818-2820).

On cross-examination, XXXX confirmed that the Student was also instructed by XXXX, a co-teacher in XXXX class, but that she did not present new lessons and functioned ostensibly as a teaching assistant. She was very instrumental in the XXXX. XXXX taught the Student XXXX and also XXXX. She was also involved in the XXXX during the XXXX school year. Although her bio states that she possesses New York State certification in XXXX, her New York State certification as a Guidance Counselor expired on January 31, 2013. She is also not New York State certified in teaching (R. 2807-2817; Ex. D-85).

Also on cross-examination, XXXX testified that during the XXXX school year the Student received XXXX instruction from XXXX, who was part of a program called XXXX one time per week. XXXX also received XXXX instruction from XXXX, a native of XXXX whose child once attended XXXX. The Student’s teachers remained the same for the XXXX school year, with the exception of XXXX receipt of occasional help from XXXX, who possessed a New York State certificate, but worked mostly with the XXXX students. XXXX replaced XXXX for the XXXX school year (R. 2822-2827).

XXXX stated that the XXXX Approach is based on XXXX (R. 2532-2540; Exs. P-

HHH, P-III).

XXXX reviewed XXXX’s recommendations and felt that some were already implemented for other students. She shared the report with her co-director and with the teachers, and all believed that the recommendations could be implemented for the Student at XXXX. She stated her understanding of the Student’s significant difficulties as XXXX, XXXX, and XXXX. She believed that XXXX deficits could be remediated through XXXX’s 1:1 instruction in an environment where each child is doing his or her own activity, not necessarily having to worry about whether XXXX was behind or at what grade level was XXXX working. To address the Student’s support for XXXX, XXXX. All materials were designed by XXXX and are incorporated into the classroom (R. 2540-2547, 2862-2870; Ex. D-45).

XXXX stated that especially in the fall of the XXXX school year, the Student XXXX (R. 2548-2549; Ex. D-45).

In the area of XXXX(R. 2549-2550).

XXXX testified that in the beginning of the XXXX school year, the Student was

XXXX (R. 2550-2554).

XXXX testified that for maybe the first month or two of the XXXX school year, the Student would XXXX (R. 2556-2557; Exs. D-20, D-24, D-45, P-M, P-QQ).

Although XXXX stated that the Student had XXXX performed by XXXX of XXXX in the late fall of 2012, the evidence shows that the Student was evaluated by XXXX of XXXX on March 14, 2013 at the request of the Parent, made at a Committee meeting held on December 17, 2012 when an IESP was developed for the Student. The evidence also shows that the evaluation was not reviewed by XXXX until April 9, 2013, and a recommendation for implementation of XXXX was not made by XXXX until the start of the XXXX school year. The Student was resistant to XXXX. The evidence shows that the Parent provided XXXX’s report to XXXX in August 2012 (R. 2558, 2721- 2723, 3562; Exs. D-45, P-L, P-M, P-QQ, P-XX).

XXXX testified that when the Student entered XXXX in the XXXX school year, XXXX had trouble sometimes with things like XXXX. However, when the Student was evaluated by XXXX on March 14, 2013, she found the Student’s performance on the XXXX indicated XXXX. XXXX stated that XXXX offered the Student XXXX in a group to address XXXX. However, XXXX recommended the service to increase the Student’s XXXX. XXXX stated that the Student refused the service because XXXX did not XXXX. XXXX stated that although XXXX was recommended to be provided in a small group, and that the Student eventually determined to participate in XXXX in the XXXX school year, there were oftentimes not enough students at XXXX to form a small group and XXXX usually received services 1:1 in the small classroom within the larger classroom, with the door open. She later corrected her testimony and confirmed that XXXX was not recommended or provided to the Student until the XXXX school year (R. 2559-2568, 2723; Exs. P-L, P-M, P-QQ).

XXXX reviewed additional classroom strategies recommended by XXXX, including XXXX. She stated that all of those recommendations were implemented at XXXX, especially XXXX (R. 2568-2569).

XXXX testified that the strategies XXXX used to manage XXXX difficulties included XXXX. Both the District and XXXX recommended for the Student during the XXXX and XXXX school years (R. 2569-2570; Exs. D-24, D-35, D-41, P-L, P-QQ).

XXXX acknowledged that XXXX recommended XXXX at school, as well as continuation of XXXX. She stated that she spoke with XXXX XXXX, and explained that the Student had XXXX issues. She stated that XXXX. For the XXXX and XXXX school years, the District’s CSE recommended small group XXXX to address the Student’s issues with XXXX (R. 2570-2572; Exs. D-24, D-35, D-41, D-45).

XXXX testified that the Student participated at XXXX during the summer 2012 for either ^[6] or 8 weeks, and that XXXX was XXXX. Neither the District nor XXXX recommended XXXX for the Student for the XXXX and XXXX school years (R. 2572- 2577; Exs. D-24, D-35, D-41, P-L, P-QQ).

XXXX reviewed XXXX’s recommendation to XXXX. The District conducted the Student’s triennial evaluation (within XXXX’s timeframe) obtaining the Parent’s written consent on June 26, 2013 (R. 2577-2579; Exs. D-45, D-46, D-48, D-49, D-54, D-77, D- 78, P-VV).

XXXX reviewed a XXXX invoice which was created by XXXX dated June 25, 2012, the first day of the XXXX. She stated that the invoice was paid by the “XXXX.” XXXX also reviewed the Student’s XXXX contract for the XXXX school year, dated October 16, 2012, and stated that the Student started sometime in September 2012, after the start of the school year. She stated that she does not create the invoices and she does not handle the billing, it is handled by XXXX, and she was unsure why no payment plan was selected by the Parents, and why the paid invoice was dated December 20, 2012. She also stated that she did not remember the payment agreement between XXXX and the Parents, even though the Parent testified that the payment was made in cash by her Co-Director’s mother. XXXX acknowledged that the invoice included charges for before and after care, that the Student participated, and that the after care provides time for the Student to do XXXX homework and get assistance if needed. Both the Parent and XXXX testified that the Student received after school instruction from XXXX at home after school during the XXXX school year. XXXX testified that lessons began between 4:30 p.m. and 5:00 p.m. However, the Parent also testified that they took advantage of the before-care and after care when the Student was not bussed to XXXX by the District, and when the Student attended activities after school, and in order to allow the Parents a full, uninterrupted work day (R. 1997, 2579-2587, 3607-3610, 3952-3964; Exs. P-N, P-U, P-KK, P-JJJ).

The Parent testified that the summer program consisted of blocks of 2 week periods of instruction, for a total of 8 weeks. She also stated that the Student did not

XXXX (R. 3362-3377).

When asked why the Student did not start at XXXX until two weeks into the XXXX school year, XXXX stated her understanding that the Parent was in negotiations with the District in an effort to see what sort of program they would offer XXXX. She also testified that the Student did not start school at XXXX for the XXXX school year until after the start of the school year because the Parent told her she was looking into what the District would be offering at the start of the school year (R. 2587-2589, 2597- 2598).

XXXX described the other XXXX students with which this Student was placed during the XXXX school year. One of the students had XXXX, another student had XXXX and XXXX and was not XXXX or XXXX at grade level, and the other two students had no disabilities. The students’ ages were between XXXX years old or a little older. She stated that the Student’s XXXX and XXXX levels were in the XXXX to XXXX grade range; that one student was XXXX at a XXXX grade level; another was XXXX at the XXXX grade level, and the other two students were XXXX one to two years above grade level. This Student was instructed 1:1 and was not instructed in the presence of anybody else, until XXXX joined a group of XXXX. Two of the students had issues with XXXX and were given assistance with XXXX. The two non-disabled students had better XXXX, and they did not need as much assistance or 1:1 instruction in those areas (R. 2590-2597; Ex. P-HHH).

On cross-examination, XXXX stated that 3 of the 5 XXXX students, including this Student, had IEPs in the XXXX school year. One student was classified as XXXX, and the other was XXXX. One of the two students received XXXX through XXXX. The other student received XXXX services through XXXX for XXXX. One of the two students who did not have IESPs was functioning on grade level (i.e., at the XXXX grade level) and functioned in XXXX at the XXXX grade level. The other child was on grade level in XXXX, XXXX, and XXXX (i.e., at the XXXX grade level). The XXXX. That student was in the XXXX grade, although he was retained one year previously (i.e., chronologically, he should have been a XXXX grader). The other student, a XXXX grader, functioned at a XXXX grade level in both XXXX and XXXX (R. 2875-2882; Ex.

P-HHH).

Also on cross-examination, XXXX stated that in the Student’s classroom for the XXXX school year, XXXX was the only XXXX grader. One of the students, who moved up from the XXXX class, had XXXX. He had XXXX with the other students XXXX. Out of 10 students in the class at the beginning of the year, 5 were classified, including this Student. One student left in December 2013. XXXX stated that the Student’s XXXX difficulties did not interfere with the other students in the class since XXXX. They are only grouped for specials. XXXX stated her understanding that the Student received XXXX tutoring during the XXXX year from XXXX, using the XXXX or XXXX methodology, and that XXXX visited XXXX. She also acknowledged that in the XXXX school year, there were no XXXX, and that XXXX did not develop XXXX. She stated that for the XXXX school year, this Student will be the only XXXX and another prospective student would be a XXXX. However, she did not know what the enrollment would be for the fall 2014. The documentary evidence shows that the New York State Administrators Listing for XXXX is a XXXX school. On redirect examination, XXXX testified that for the XXXX school year, they would modify the three-year groupings and that this Student would have some activities that are XXXX or XXXX grade-based and some others that would be XXXX, XXXX, or XXXX grade-based. She also stated that at the XXXX level in XXXX training, the students will be involved in XXXX. The XXXX was created by XXXX under the rubric of the XXXX School, and she creates a year-long theme to go along with the curriculum. However, the Student still has not been exposed to a lot of the XXXX grade XXXX curriculum and XXXX would spend time during the XXXX school year on a XXXX grade curriculum (R. 2882-2891, 2895-2898, 2906-2911, 2917-2919; Exs. D-86, D-86A, P-III).

On re-cross examination, XXXX confirmed that XXXX is not registered as a XXXX by the New York State Education Department, although it is registered as a XXXX school through the XXXX Society. She also confirmed that neither she nor XXXX has XXXX training (R. 2919-2920; Ex. 86A).

XXXX described a XXXX in which the Student participated and that XXXX became XXXX. She also discussed the Student’s XXXX (R. 2600-2612; Ex. P-TT).

XXXX reviewed the Student’s XXXX for the XXXX school year. She stated that at the beginning, the Student was very resistant to do XXXX. She stated that XXXX (R. 2612-2619, 2728; Ex. P-J).

XXXX testified that the Parent signed a records release for the District to provide XXXX with the Student’s records on September 28, 2012, and she did not receive records from the District until November 2012. The documentary evidence shows that the Parent requested and received the Student’s educational files independently from the District in June 2012, prior to his entrance into XXXX. As of September 13, 2012, the Parent did not sign the District’s consent for release of records form for release of information from XXXX to the District regarding the Student, and did not do so until June 24, 2013 (R. 2626-2643; Exs. D-27, D-28, D-32, D-34, D-36, D-37, D-34, P-Q, P-V, P-

ZZ, P-DDD, P-EEE).

XXXX testified that the XXXX recommended by XXXX at its CSE meeting held on December 17, 2012 were a bonus, but not necessary. She also testified that neither XXXX nor XXXX recommended XXXX to be provided to the Student, despite the recommendation made by XXXX. The documentary evidence shows that the District recommended small group XXXX for both the XXXX and XXXX school years (R. 2652- 2653; Exs. D-24, D-41, D-45, P-QQ).

XXXX stated that the Student attended the summer 2013 program at XXXX. Although XXXX described XXXX’s summer program as academically rigorous, there are no progress reports in evidence for the summer 2012 and summer 2013 programs. She stated that the Student was XXXX. XXXX stated that the invoice for the summer 2013 program was not paid (R. 2573, 2653-2661, 2840-2841; Ex. P-H).

XXXX stated that she created the XXXX tuition contract for the Student’s attendance on September 16, 2013, after the start of the school year. She stated that she had a conversation with the Parent that she was going to delay the Student’s start based on what happened with the District’s CSE process. XXXX did not know when the District’s CSE met to make recommendations for the XXXX school year. She also stated that XXXX created the invoice, and that the Student’s tuition was not paid for the XXXX school year (R. 2662-2668; Exs. P-E, P-F).

XXXX testified regarding the profiles of the other students with whom this Student was placed for the XXXX school year. At the start of the school year, this Student was placed with 9 other students. One student had XXXX. A second student had XXXX. One student moved up from the XXXX, and he had XXXX. He had XXXX. Another diagnosed child also had XXXX. Four students had neither XXXX nor XXXX issues. XXXX’s testimony with respect to XXXX issues of students with whom this Student was placed for the XXXX school year conflicts with the information contained in the profile that she created (R. 2677-2681; Exs. D-91, P-III).

XXXX stated that for the most part, there were one or two teachers present in the Student’s class during the XXXX school year. XXXX curriculum remained the same, and included XXXX. XXXX testified that the Student’s XXXX and XXXX improved a great deal. XXXX made an XXXX. XXXX XXXX with XXXX and XXXX. XXXX also used XXXX. She also stated that the Student progressed in XXXX, but not quite to the XXXX grade level, and that XXXX was doing XXXX. XXXX needed assistance with

XXXX (R. 2681-2685).

XXXX reviewed a XXXX produced by the Student on September 25, 2013. It is XXXX. XXXX stated her belief that the sample was solidly XXXX grade in XXXX, and XXXX was a little lower, maybe a XXXX or XXXX grade level. She also stated that the sample is typical of the Student’s skills at that point in time. In addition, she reviewed a XXXX, and noted that it was XXXX. She estimated the Student’s XXXX at a XXXX grade level, XXXX at a XXXX or XXXX grade level, and XXXX at the XXXX, close to XXXX grade level (R. 2685-2695, 2699; Exs. P-LL, P-MM).

XXXX also reviewed the Student’s XXXX for the XXXX school year. The document was drafted in early to mid-October 2013. The Student’s report card for the spring 2014 was not offered into evidence and is therefore not a part of the hearing record. XXXX stated that the Student had a bit of regression in some areas, even XXXX, but XXXX more quickly XXXX. XXXX XXXX also improved. One of the Student’s classmates was XXXX’s son, and the Student was a good role model for him. She also stated that the Student and her son were social outside of the classroom. She stated that the spring 2014 report card would be reviewed with the Parent and with XXXX on May 30, 2014. She stated that there would probably be discussion about XXXX improvement in XXXX but that there were other things for which XXXX might be more accountable, and discussions relating to XXXX. Between June 1 and June 11, 2014, the last day of school, the students would continue to have the regular school curriculum but they would not be graded. She stated that the Student’s XXXX increased during the XXXX school year, and that XXXX (R. 2700-2706, 2726; Exs. P-B, P-J).

On cross-examination, XXXX compared the Student’s progress reports dated March 2013 with November 2013 and stated that there was a decrease in the Student’s functioning in XXXX, which she attributed to the summer break, i.e., to the break between summer school and the time when XXXX actually started to attend school in the XXXX session, even though the fall marks were measured 1 or 1-1/2 months into the school year, and are designated on the progress report as of November 2013. XXXX also experienced a decrease in XXXX and XXXX. In XXXX, the Student increased XXXX. In the area of XXXX, according to the progress report, the Student did not make progress in the area of XXXX. In the area of XXXX, XXXX decreased in using XXXX. In the area of XXXX, the report shows that no progress was made. There are no grades in XXXX or XXXX for the fall 2013, even though XXXX participated in those subjects in the fall 2013 (R. 2844-2854; Exs. P-B, P-J).

Also on cross-examination, XXXX stated that the progress reports do not reflect the grade levels at which the Student was functioning in XXXX or XXXX. The fall 2012 Observations and Comments indicate that the Student needed to work on XXXX (R. 2856-2861; Exs. P-B, P-J).

Also on cross-examination, XXXX confirmed that XXXX does not conduct formal assessments of their students using a standardized testing evaluation, but that they keep portfolios of the students’ work and assess where they are functioning relative to the work in the portfolio at the beginning of the year (R. 2843-2844).

XXXX stated that XXXX received a request from the District for the Student’s school records on July 2, 2013. She also remembered having a discussion with someone at the District during the course of a CSE meeting regarding the XXXX program. XXXX stated that XXXX’s practice, when there is a request for documents accompanied by parental consent, the office assistant would forward the records to the school district requesting them. She did not testify, however, that records were forwarded from XXXX to the District regarding this Student (R. 2706-2713; Ex. P-CCC).

XXXX stated that she attended an IESP meeting at XXXX for the Student on April 9, 2013, in preparation for the XXXX school year. She stated that XXXX services were recommended XXXX, which was not a substantial amount of time, but it was just a support which was a bonus, but not necessary for the Student. She also stated that XXXX recommended XXXX and XXXX thought it would be a good supplement to what XXXX did in his classroom. She then stated that it was not a significant need, and it was almost like a bonus to what XXXX did in the classroom, but that there was no XXXX as part of XXXX’s XXXX classroom per se. XXXX also testified, on the next day of hearing, that she was again mistaken, that XXXX were instituted by XXXX in April 2013, at the Parent’s request. The documentary evidence shows that XXXX did not modify the Student’s XXXX IESP to reflect a recommendation for XXXX to commence during the XXXX school year (R. 2713-2714, 2721-2724, 2738-2749; Exs. P-L, P-QQ).

On re-cross examination, XXXX confirmed that XXXX’s IESP for the XXXX school year did not contain any XXXX, XXXX, or XXXX goals, even though XXXX was functioning below grade level in each of those areas during the XXXX and the XXXX school years (R. 2921-2923; Ex. P-L).

XXXX testified that she received written invitations from XXXX to participate in the Student’s CSE meetings, but she did not receive invitations from the District to participate in its CSE meetings. She later stated that the District contacted her and she participated for a portion of a CSE meeting by phone. She then stated that XXXX was called to participate in the District’s June 19, 2013 CSE meeting and she advised the CSE that she could not participate because she did not have consent from the Parent, who is her sister, to participate. XXXX did have a recollection of participating in a telephone call in the fall of 2012 (R. 2754-2759).

On cross-examination, XXXX testified that she participated at the CSE meeting held by XXXX on December 17, 2012, and she recalled a discussion between the Parent and the XXXX CSE about the issue of classification. She stated that she did not offer an opinion over the classification issue, but that XXXX ultimately did not change the Student’s classification from XXXX (R. 2870-2874; Ex. P-QQ).

XXXX testified about what educational services the Student needed going forward for the XXXX school year. She stated that XXXX benefits from XXXX (R. 2759- 2774).

On re-cross examination, XXXX confirmed that a meeting was held at XXXX to develop an IESP for the Student for the XXXX school year, and that she was present. She stated that at the Parent’s request, the Student was given increased time to work with a special education teacher from XXXX. She also stated that the XXXX CSE asked the Parent whether she planned to place the Student at XXXX for the XXXX school year, and she responded that she had not yet decided and was looking at her options. In addition, she stated that the Parent relayed to the CSE that if the Student returns to XXXX, she would be interested in having XXXX services increased. Although XXXX did not participate in the discussion at the CSE, she stated her opinion at the hearing that she did not believe that it was necessary for the Student to work directly with a XXXX for the XXXX school year, but that it would be a bonus which might help

XXXX (R. 2939-2946).

CONCLUSIONS OF LAW

Two purposes behind the Individuals with Disabilities Education Act (“IDEA”) [20 U.S.C. Sections 1400-1482] are (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique 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. Section 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S.Ct. 2484, 2491 (2009); Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)].

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 206-207; Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. While school district are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [A.C. c. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.D.N.Y. 2007); see also O’Toole v. Olathe District School Unified School District No. 233, 144 F.3d 692, 701 (10th Cir. 1998)]. 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. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. Appx. 20, 2008 U.S. App.

LEXIS 17947].

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. Section 1415(f)(3)(E)(i); 34 C.F.R. Section 300.513]. 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 School District, 142 F.3d 119, 130; 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 School District, 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 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 U.S. Dist. LEXIS 9873, at *46]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 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 (“LRE”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular 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. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d 111, 114 (2d. Cir. 2008); Gagliardo v. XXXX, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.D.N.Y. 2008)]. Also, a FAPE must be available to an eligible student “who needs special education and rXXXXted services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade” [34 C.F.R. Section 300.101(c)(1); 8 N.Y.C.R.R. 200.4(c)(5)]. The proper inquiry as to the appropriateness of an IEP is whether the IEP was reasonably calculated to confer educational benefit at the time the CSE devised the IEP. Antonaccio v. Board of Education of the XXXX, et. al., 281 F.Supp.2d 710, 724- 725 (S.D.N.Y. 2003); Application of the Board of Education of Harrison Central School District, Appeal No. 04-034.

The IDEA permits education in more segregated settings such as dedicated special education classrooms, the home, hospitals and private institutions ‘when the nature or severity of a child’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily’ [Viola v. XXXX, 414 F.Supp.2d 366, 376 (S.D.N.Y. 2006); Board of Education of Poughkeepsie City School District v. O’Shea, 353 F.Supp.2d 449, 454 (S.D.N.Y. 2005) [quoting Walczak, 142 F.3d 119, 122 (2d Cir. 1988)].

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. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)], establishes annual goals rXXXXted to those needs [34 C.F.R. Section 300.320(a)(2)(i); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see Application of the Department of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Department of Education, 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]. Subsequent to its development, an IEP must be properly implemented [8 N.Y.C.R.R. Section 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087].

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 [Education Law Section 4404(1)(c); see M.P.G. v. New York City Department of Education, 2010 WL 3398256 at *7 (S.D.N.Y. August 27, 2010; Application of the Board of Education, Appeal No. 10-097; Application for a Review of a Determination by a Hearing Officer, Appeal No. 10-123; Application for a Review of a Determination by a Hearing Officer, Appeal No. 10-101)].

It is well settled that 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, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim [Florence County School District Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education, 471 U.S. 359, 369-370 (1985)]. 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 [471 U.S. at 370-71; Gagliardo v. XXXX, 489 F.3d 105, 111 (2d Cir. 2007); Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE [Burlington, 471 U.S. at 370-71; see 20 U.S.C. Section 1412(a)(10)(C)(ii); 34 C.F.R. Section 300.148].

In a recent decision, the United States District Court for the Southern District of New York held, in Mr. and Mrs. A. o/b/o D.A. v. New York City Department of Education, 769 F.Supp.2d 403 (S.D.N.Y. 2011), that where parents have satisfied each of the Burlington factors, the Court’s “broad discretion to grant such relief as ... is appropriate” under 20 U.S.C. Section 1415(i)(2)(c)(iii) includes the power, in a proper case, to award retroactive direct payment of private school tuition. The Court stated that within this Circuit, a number of courts have stated or suggested in dicta that a direct tuition remedy is available where parents have presented a meritorious Burlington claim but lack the financial means to pay private school tuition out-of-pocket, citing the Northern District of New York’s decision in Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y. 1998).

In a recent SRO decision, Application of a Student with a Disability, Appeal No. 11-041 (June 9, 2011), the State Review Officer referenced the holding in Mr. and Mrs. A. v. New York City Department of Education, Id., as a case of first impression, where the Court held that “[w]here ... parents lack the financial resources to “front” the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. The Court held that in fashioning such relief, administrative hearing officers retain the discretion to reduce or deny tuition funding or payment requests where there is collusion between parents and private schools or where there is evidence that the private school has artificially inflated its costs. Id. The SRO assigned to the parents the burden of production and persuasion with respect to whether they have the financial resources to “front” the costs of the private school. He noted that the District Court did not establish what should be considered as part of parents’ “financial resources” for purposes of determining their ability to pay the costs of tuition for a private school. The SRO stated that it is unclear whether a determination of a parent’s financial resources should take into account only his or her annual wages or whether it should also consider items such as cash or its equivalents that the parent has on hand, the parent’s ability to access financing, other investments, the unrealized earning potential of a nonworking parent, or the value of luxury items belonging to the parent just to name a few (citing Connors, 34 F.Supp.2d at 806 n. 6).

A private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370], i.e., the private school offered an educational program which met the Student’s special education needs [see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp.2d at 419]. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement [Carter, 510 U.S. at 14]. The private school need not employ certified special education teachers or have its own IEP for the student [Carter, 510 U.S. 7; Application of the Board of Education, Appeal No. 08-085; Application of the Department of Education, Appeal No. 08-025; Application of the Board of Education, Appeal No. 08-016; Application of the Board of Education, Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-105]. Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” [Gagliardo, 489 F.3d at 112; see M.S. v. Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)]. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement ...” [Gagliardo, 489 F.3d at 112; Frank G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions)]. Parents need not show that the placement provides every special service necessary to maximize the student’s potential [Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 (citing Berger v. Medina City School District, 348 F.3d 513, 522 (XXXX Cir. 2003)(stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”)]. A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a handicapped child’” [Gagliardo, 489 F.3d at 115 (emphasis in original), citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89].

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

[Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65].

The final criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA [Burlington, 471 U.S. at 374; M.C. v. Voluntown Board of Education, 226 F.3d 60, 68 (2d Cir. 2000)]; see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”]. Such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” [Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530, 533 (N.D.N.Y. 2001), citing Town of Burlington v. Department of Education, 736 F.2d at 773, 801-02 (XXXX Cir. 1984) aff’d 471 U.S. 359 (1985). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent’s conduct precluded the CSE’s ability to develop an appropriate IEP [Warren G. v. Cumberland County School District, 190 F.3d 80, 86 (3d Cir. 1999); see Application of the Board of Education, Appeal No. 04-102; Application of the Board of Education, Appeal No. 04-026.

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense [20 U.S.C. Section 1412(a)(10)(C)(iii)(I); see 34 C.F.R. Section 300.148(d)(1)]. This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools” [Greenland School District v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)]. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with the statutory provision [Greenland, 358 F.3d at 160; Ms. M. v. Portland School Committee, 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City School District, 348 F.3d 513, 523-24 (5th Cir. 2003); Rafferty v. Cranston Public School Committee, 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial School District, 2007 WL 3085854, at *13 (E.D. Pa. October 22, 2007)].

In a recent decision of the United States Court of Appeals for the Second Circuit, R.E. et.al, v New York City Department of Education, 694 F.3d 167 (2d Cir. 2012), the Court held that courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider “retrospective testimony” regarding services not listed in the IEP. However, the Court rejected a rigid “four-corners rule” that would prevent a court from considering evidence explicating the written terms of the IEP. In the R.E. case, parents challenged the use of testimony by Departmental personnel about the educational program the student would have received if he or she had attended public school, which the Court termed “retrospective testimony.” The Second Circuit held that retrospective testimony about what would have happened if a student had accepted the Department’s proposed placement must be limited to testimony regarding the services described in the student’s IEP. Moreover, such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the IEP. Id., at 174-175. In addition, testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP in a Burlington/Carter proceeding. Id. 185-186. The Second Circuit did, however, reject a rigid “four corners” rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP. Id. at 186.

The SRO has held that educational programs from prior school years can be reviewed to determine the appropriateness of a program recommendation for a current year, even if a parent did not request an impartial hearing with respect to the prior school years. Application of the Board of Education of the Red Hook Central School District, Appeal No. 00-053 (November 15, 2000). The SRO has also held that educational programming for prior years is useable as a frame of reference for an IHO’s determination even if the parent did not request an impartial hearing in those prior years. Application of the Board of Education of the Pine Plains Central School District, Appeal No. 00-072 (November 6, 2000).

As a preliminary matter, the District asserts that it was under no obligation to develop an IEP or offer FAPE for the XXXX school year (i.e., the Student’s XXXX grade year), in that the Parents made clear their intention to keep the Student enrolled in a private school located in another school district, citing a an OSER Guidance Memorandum. However, the United States District Court for the Southern District of New York has held otherwise. In J.S. v. Scarsdale Union Free School District, 826 F.Supp.2d 635, 665 (S.D.N.Y. 2011), the Court found that a district of residence has an obligation to offer FAPE to a student who attends a private school outside of the district of residence, finding that “a district of residence’s obligations do not simply end because a child has been privately placed elsewhere ... rather, the IDEA’s obligations may be shared.” In E.T. v. Board of Education of the Pine Bush Central School District, 2012 U.S. Dist. LEXIS 167977 (S.D.N.Y., November 26, 2012), the Court also held that a district of residence retained its IDEA obligations to a student who attended a private school outside of the confines of the District, finding that two school districts may have IDEA obligations to the same disabled child, citing District of Columbia v. Abramson, 493 F.Supp.2d 80, 85-86 (D.D.C. 2007), in which the court affirmed the administrative officer’s finding that simply because another school district had “child find responsibilities of its own,” where a child was enrolled in an out-of-state private school, the district of residence still had to “fulfill its own responsibilities as the LEA of residence to evaluate the student and make FAPE available.”

The E.T. Court stated that other courts have repeatedly found that the IDEA does not give a district of residence “carte blanche to cut [a disabled child] loose, without any duty to even assist in the transfer of his IEP to [another] district, even when the parents elect to place that child in a private school within another district,” citing Ms. K., 2006 U.S. Dist. LEXIS 78705, 2006 WL 3081555. The Court went on to hold that the pertinent provisions of the IDEA “are obviously designed to prevent parentally placed students from falling through the cracks and losing the federal funded special education services [to which] they are entitled” which is why a district of residence’s FAPE obligation does not disappear when parents unilaterally place their children elsewhere. The Court found that even though a student’s parents requested services from the district of location, while attending a private school outside of the district of residence, the district of residence nevertheless remained obligated to provide the Student a FAPE. The Court also found that the issue of the parents’ intent is a question that informs the balancing of the equities rather than whether the district had an obligation to the child under the IDEA. I therefore find that the District had an obligation to draft an IEP for the XXXX school year and, in any event, they did so.

The Parents raise a number of issues in their Due Process Complaint Notice (Ex. IHO-3), and I will address each issue in seriatim.

1. Violation of Child Find.

The Parents assert that the Student did not receive initial eligibility testing until April 2010, at the Parents’ request, and that the delay caused XXXX (Ex. IHO-3 at p. 4). The District argues in its Post-Hearing Brief that the Parents’ allegation of a child find violation is barred by the statute of limitations (District’s Brief at pp. 6-7).

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within 2 years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. Section 1415(f)(3)(C); see also 20 U.S.C. Section 1415(b)(6)(B); Educ. Law Section 4404(1)(a); 34 C.F.R. 300.511(e); 8 N.Y.C.R.R. 200.5(j)(1)(i); Application of the XXXX for a Review, Appeal No. 11-114 (December 23, 2011); Application of a Student with a Disability, Appeal No. 11-155 (January 19, 2012).

The Parents filed their Due Process Complaint Notice on September 30, 2013, in the Student’s XXXX grade year (Exs. IHO-3, D-41). However, they raised many issues at the hearing dating back to the Student’s XXXX, XXXX, and XXXX grade years. As such, I will consider claims made by the Parents beginning from September 30, 2011. Insofar as the Parents’ child find claim accrued no later than the date upon which the Student was initially classified (i.e., on April 13, 2010), I find that their claim is time-barred. However, even if the claim was not time-barred, I find that the District met its child-find obligations to the Student.

The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made [Handberry v. Thompson, 446 F.3d 335, 347-348 (2d Cir. 2006); E.T. v. Board of Education of the Pine Bush Central School District, 2012 WL 5936537 at *11 (S.D.N.Y. November 26, 2012); A.P. V. Woodstock Board of Education, 572 F.Supp. 221, 225 (D. Conn. 2008), aff’d 370 Fed. App’x 202 (2d Cir. March 23, 2010); see also 20 U.S.C. Section 1412(a)(3)(A); 34 C.F.R. 300.111; 8 N.Y.C.R.R. 200.2(a)(7); Application of the XXXX for a Review, SRO Decision No. 13-087 (January 31, 2014)]. The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State “to ensure that they receive needed special education services” (20 U.S.C. Section 1412(a)(3); 34 C.F.R. 300.111(a)(1)(i); Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537 at *11; see 20 U.S.C. Section 1412(a)(10)(A)(ii); see also 8 N.Y.C.R.R. 200.2(a)(7); New Paltz Central School District

v. St. Pierre, 307 F.Supp.2d 394, 400 n. 13 (N.D.N.Y. 2004). The “child find” requirements apply to “children who are suspected of being a child with a disability ... and in need of special education, even though they are advancing from grade to grade [34 C.F.R. 300.111(c)(1); see 8 N.Y.C.R.R. 200.2(a)(7); D.K. v. Abington School District, 696 F.3d 233, 249 (3d Cir. 2012); J.S. v. Scarsdale Union Free School District, 826 F.Supp.2d 635, 660 (S.D.N.Y. November 18, 2011)]. To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children [34 C.F.R. 300.111(a)(1); 8 N.Y.C.R.R. 200.2(a)(7)].

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child [citations omitted]. A district’s child find duty is triggered when there is “reason to suspect a disability and reason to suspect that special education services may be needed to address that disability [citations omitted]. To determine that a child find violation has occurred, school officials must have overlooked clear signs of a disability and have been negligent by failing to order testing, or have no rational justification not to evaluate [citations omitted]. States are encouraged to develop “effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education” [citation omitted]. Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district’s response to intervention program [8 N.Y.C.R.R.

200.4(a); Application of the XXXX for a Review, SRO Decision No. 13-087 (January 31, 2014)].

The evidence shows that the District was aware of the Student beginning in his XXXX year, when XXXX was administered XXXX. The XXXX tests XXXX. The Student scored in the XXXX Stanine, reflecting a weak performance on the set of tasks (Ex. D- 79). The Parent testified that she first noticed the Student struggle academically during XXXX year, when XXXX teacher mentioned XXXX struggled with XXXX. She also stated that the Student received XXXX program, called XXXX (R. 3040). XXXX testified that the Student’s XXXX teacher raised concerns at the building level about XXXX (R. 215-216). XXXX estimated that the Student was XXXX during XXXX year (R. 216).

In the Student’s XXXX grade year, XXXX was recommended for additional XXXX by XXXX and XXXX (Ex. D-67). XXXX and XXXX continued to be issues for the Student (R. 221-226, 429-436). In November 2009, the Parent shared concerns about the Student’s progress with XXXX, but stated that XXX (R. 436-437). XXXX stated that District staff tried to give the Student support while respecting the family’s wishes as well, and determined to proceed through XXXX rather than an initial evaluation (R. 3852-3853). In addition to receiving XXXX instruction in the mainstream, the Student received XXXX support, as part of XXXX, by XXXX (R. 3821-3827, 3908; Ex. D-90).

In the Student’s XXXX grade year, XXXX continued to receive XXXX. The Parent ultimately referred the Student for evaluation by the CSE on or about February 1, 2010 (R. 1865-1869, 3054, 3057-3058; Exs. D-1, D-2, D-3, D-4, D-9, D-75, D-76, D-88,

D-88A, P-GG).

I find that the District did not violate its child find responsibilities to the Student. Although the XXXX staff believed that a referral to the CSE was appropriate, they deferred to the Parents’ wishes not to place the Student in special education, while assisting the Student at the building-level. In addition, the record reflects that the Student had issues with XXXX during XXXX grade years, and I find it was reasonable for the staff to attempt to determine whether the Student had learning issues that needed to be addressed through special education, or whether XXXX (R. 501-502). [8 N.Y.C.R.R. Section 100.2(ii); 8 N.Y.C.R.R. Section 200.2(b)(7); Application of the XXXX for a Review, SRO Appeal No. 13-087 at p. 19 (January 31, 2014)].

2. Failure to Properly Classify.

The Parents assert that the CSE failed to properly classify the Student as XXXX, despite the recommendations of private doctors, and that classifying the Student as XXXX does not appropriately capture or describe the Student’s most significant deficits and led to program and service recommendations that ignored the Student’s greatest needs (Ex. IHO-3 at p. 4).

Although the Student’s eligibility for special education and related services as a student with a disability is not contested by the parties, XXXX classification as a student with XXXX is in dispute. The evidence shows that in connection with the Student’s initial referral, the Parent requested that the District release the results of testing to XXXX, and she gave XXXX permission to discuss any information concerning the educational needs of the Student, including any XXXX issues (Ex. D-2). The CSE had in its possession a letter from XXXX, stating that the Student suffers from XXXX which adversely affects XXXX ability to succeed in a regular classroom without intervention (Ex. D-13). XXXX apparently issued two letters dated April 12, 2010; a letter submitted as a Parents’ exhibit, also by XXXX, sets forth the Student’s diagnosis of XXXX, but also states that the Student “requires special services under a 504 plan to help ensure adequate education.” The Parent testified that she never saw either of XXXX’s letters until the hearing process began (R. 3310-3311; Exs. D-13, P-EE).

The Parents state that the District had in its possession two reports by XXXX, diagnosing the Student with XXXX and characterizing the Student’s XXXX as a secondary phenomenon. XXXX testified that he did not see either of the reports prior to the hearing, as part of the Parents’ document production. Neither of XXXX’s reports are stamped received by the District (R. 1295-1296, 1298-1299; Exs. P-X, P-CC). A review of XXXX’s evaluation dated July 7, 2010, shows that XXXX (Ex. P-CC). On May 16, 2012, XXXX (Ex. P-X). XXXX did not appear for testimony.

XXXX appeared for testimony and was qualified as an expert in XXXX (R. 2162). She conducted a XXXX evaluation consisting of a 1 hour interview where she collected pertinent background information that would be helpful for her to know going into the evaluation, in order to create the test battery. She also had the Parent fill out background history and a number of report measures. She administered 5 hours of testing to the Student, with breaks (R. 2164-2168).

XXXX testified that based on the results of her testing, she could not diagnose the Student with a XXXX disability, given XXXX (R. 2268-2269). She also did not diagnose the Student as XXXX (R. 2267). She testified that her findings were consistent with the Student’s diagnosis of XXXX (R. 2267). She also diagnosed the Student with a XXXX (R. 2268). XXXX stated that she did not believe that the Student should be classified as XXXX instead of XXXX, since they impact each other, and XXXX needs accommodations to address XXXX and XXXX issues. She also stated her opinion that a classification of XXXX does not capture the XXXX (R. 2321-2322).

A CSE is called upon to identify all of the student’s special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified [34 C.F.R. Section 300.304(c)(6); 8 N.Y.C.R.R. 200.4(b)(6)(ix)]. The particular disability classification that a student receives “will, in many cases, be substantively immaterial because the IEP will be tailored to the child’s specific needs.” Application of a Student with a Disability, Appeal No. 11-100 (October 21, 2011). A student’s special education programming, services and placement must be based upon a student’s unique special education needs and not upon the student’s disability classification. Application of a Student with a Disability, Appeal No. 09-126 (December 22, 2009).

I find that the hearing record demonstrates that the District fulfilled its obligation under the IDEA and federal and State regulations to identify, locate, and evaluate the student, who was suspected of being a student with a disability, and that the CSE’s decision to classify the Student as XXXX did not compromise the Student’s right to an appropriate education, significantly impede the parents’ opportunity to participate in the development of the IEP, or cause a deprivation of educational benefits. Application of a Student with a Disability, Appeal No. 11-100 (October 21, 2011). I also find that the hearing record supports the Student’s classification as XXXX by virtue of a XXXX, based upon the opinion of XXXX and the test results of XXXX. I note that XXXX’s testing did not exist at the time of the Student’s initial classification. Moreover, the District did not receive parental consent to release XXXX’s report until June 24, 2013, more than one year after the evaluation was conducted (Exs. D-45, P-XX).

3. Failure to develop an appropriate program for at least the XXXX and XXXX school years that adequately addressed the Student’s specific academic, physical, social and emotional needs.

The Parents assert that the programs offered for the XXXX and XXXX school years mirrored those offered in XXXX and XXXX, programs that failed to target the Student’s specific deficits, allowing the Student to plateau in some skills and regress in others and ignored XXXX (Ex. IHO-3 at p.4).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. The evidence shows that the CSE had the following evaluations and reports at the time it made its recommendations on May 11, 2012 for the XXXX school year: a XXXX dated March 12, 2010 (Ex. D-8); a XXXX dated March 14, 2010 (Ex. D-6); a XXXX dated March 5, 2010 (Ex. D-7); test results from the XXXX dated March 1 and March 2, 20123; test results from the XXXX dated March 1, 20124; test results from the XXXX dated January 25, 20125; test results from the XXXX dated March 4, 2010 (Ex. D-6); and test results from the XXXX dated February 10, 2012 (Ex. D-6). a. The XXXX school year

A review of the IEP for the XXXX school year shows that the Student’s strengths and weaknesses in the areas of academic achievement, social development, physical development, and management needs accurately reflect the results of evaluations to identify the Student’s needs. Academically, the Student continued to function XXXX, as indicated in the XXXX results. The IEP pinpoints the areas of difficulty that the Student has in XXXX. In the area of XXXX, the Student continued to make “wonderful progress,” XXXX continued to advance in XXXX, and XXXX performed well on the XXXX, falling within the XXXX Stanine, reflecting XXXX performance on the set of tasks assessed (compare Exs. D-35, D-79, D-80). The Student still had difficulty completing XXXX assignments because of XXXX, and XXXX continued to need XXXX in order to be successful, as reflected in the XXXX evaluation dated March 14, 2010 (Ex. D-6). The Student’s difficulties with XXXX also affected XXXX abilities in XXXX (Ex. D-24).

XXXX, the Student needed to improve XXXX, as captured in XXXX XXXX dated March 14, 2010 (Ex. D-6). The Student’s XXXX were within XXXX dated March 5, 2010, and XXXX (R. 3176; Ex. D-7). The Student’s management needs included XXXX, as identified in XXXX evaluation dated March 14, 2010 (Ex. D-6); and the need for XXXX, as identified by the XXXX dated January 25, 2012 (Ex. D-24). XXXX agreed that the IEP accurately described XXXX (R. 2385-2395).

I find that the IEP for the XXXX school year accurately reflects the results of evaluations to identify the student’s needs.

An IEP must also establish annual goals related to a student’s needs. A review of the IEP for the XXXX school year includes XXXX (R. 649, 902-903, 1080-1082, 1140- 1145, 2395-2396, 3170-3171, 3176-3177; Exs. D-24, D-70, D-71).

The IEP also contained XXXX goals, including XXXX. XXXX agreed that the goals were appropriate, but she would have added a goal relating to XXXX. The evidence shows that the Student achieved all of XXXX goals for the XXXX school years (R. 2396; Exs. D-24, D-70, D-71).

The IEP contained XXXX goals, including XXXX (R. 2396-2397; Exs. D-24, D-70, D-71).

The IEP also contains XXXX goals, including XXXX (R. 2397). A review of the Student’s Progress Reports for Goals and Objectives for the XXXX and XXXX school years shows that the Student achieved all of XXXX goals, which included XXXX (Exs. D-24, D-70, D-71).

There are also XXXX goals, including XXXX (R. 291-292, 2397; Ex. D-24, D-71).

In addition, the IEP must provide for the use of appropriate special education services. At the CSE meeting held on May 11, 2012, the Committee recommended that the Student continue to receive XXXX (R. 2392-2394, 2397). Both XXXX and XXXX believed that the Student would be appropriately placed in XXXX and XXXX (R. 312- 313, 687-695, 1158-1159).

The IEP also includes Supplementary Aids and Services/Program Modifications/Accommodations including XXXX (R. 2397-2398; Ex. D-24).

State regulations provide XXXX. State regulations also require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs [8 N.Y.C.R.R. Section 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3); see Walczak, 142 F.3d at 133 (upholding a district’s determination to group a student in a classroom with students of different intellectual, social, and behavioral needs, where sufficient similarities existed); Application of the XXXX for Review, Appeal No. 11-025 (April 7, 2011). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom [8 N.Y.C.R.R. 200.6(h)(2); see 8 N.Y.C.R.R. 200.1(ww)(3)(i)(a) – (d)]. The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement [8 N.Y.C.R.R. Section 200.6(a)(3)(ii), (iii)]. Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class [8 N.Y.C.R.R. 200.6(a)(3)(iv); Application of the XXXX for Review, Appeal No. 11-025 (April 7, 2011)].

In order to establish that a student has been properly grouped, it is permissible to demonstrate age ranges or similarity of abilities and needs through the use of a class profile or by the testimony of a witness who is familiar with the children in the classroom in question [see Application of the Board of Education, Appeal No. 08-018 (May 19, 2008); Application of a Child with a Disability, Appeal No. 07-068 (August 29, 2007); Application of the XXXX for Review, Appeal No. 11-025 (April 7, 2011)].

The class profile for the recommended special class for XXXX for the XXXX school year shows XXXX (Exs. D-6, D-89).

The Student’s recommended program must also be provided in the least restrictive environment (“LRE”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, special schooling or other removal of children with disabilities from the regular 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.

For the XXXX school year, the CSE recommended XXXX. XXXX testified that the Student was appropriate XXXX (R. 1937). XXXX states in her evaluation that although the Student has XXXX difficulties, XXXX also has many relative strengths (i.e., XXXX), that need to be recognized and supported as well, in the least restrictive environment (Ex. D-45 at p. 10). XXXX testified that the Student should be in XXXX as part of XXXX program because XXXX (R. 1159). I find that the CSE’s recommendation for XXXX in the XXXX school year was appropriate.

In sum, I find that the CSE’s recommended program for the XXXX school year was reasonably calculated to confer educational benefit. The evidence shows that the Student made progress in XXXX, XXXX, and XXXX during XXXX tenure at the District, as demonstrated by the testimony, the Student’s Progress Reports on Goals and Objectives, and by the results of standardized testing. XXXX compared the Student’s performance on academic testing conducted by XXXX with XXXX performance on academic testing conducted by her as part of the Student’s initial XXXX evaluation. XXXX compared the Student’s scores on the XXXX (R. 301-306; Exs. D-6, D-45).

In the area of XXXX (R. 306-308; Exs. D-6, D-45).

XXXX testified that the Student’s performance on XXXX (R. 308-313; Ex. D-45).

XXXX agreed that based on a comparison of the test scores the Student achieved during XXXX’s administration and her own administration, between the XXXX grade and the end of XXXX grade, the results showed overall academic progress in the areas of XXXX, XXXX and XXXX (R. 2303-2305, 2351-2354, 2360-2364, 2367-2370, 2433-2435; Exs. D-6, D-45).

I find that the Student’s IEP for the XXXX school year was appropriate in all respects.

b. The XXXX school year

As a preliminary matter, the evidence shows that the Student was due for XXXX triennial evaluation on or before March 10, 2013 (Ex. D-41 at p. 1). At the CSE meeting held on June 19, 2013, the Parent signed a consent for reevaluation (Exs. D-41 at p. 2, D-46). The evidence shows that on June 24, 2013, the Student was evaluated by XXXX. As part of her XXXX Report, XXXX attempted to obtain an updated social history form from the Parent. The evidence shows that on the day after the evaluation, i.e., on June 25, 2013, XXXX sent the Parent an e-mail attaching a social history update form for completion by her. XXXX explained that a social history update is part of the reevaluation process, and she asked that the Parent complete the form and return it to her (Ex. D-49 at p. 2). Having not heard from the Parent, on July 20, 2013, XXXX sent an e-mail reminder about the need for a social history update, and she again attached a social history update form for the Parents’ completion. On July 31, 2013, the Parent sent an e-mail to XXXX acknowledging receipt of her e-mails and stated that they did not show up in her Inbox. The Parent apologized and stated that she would do her best to get the social history update to XXXX, as well as the other blue pages that the Student had conscientiously completed shortly after he met with XXXX (i.e., presumably the XXXX). The Parent apologized for “dropping the ball.” She also stated that she did not have a scanner or fax with her in XXXX but would do her very best to deliver the needed pieces for the report (Ex. D-49 at p. 1).

XXXX testified that it is her practice to review her test results with the parent, take a social history, and then present her report to the CSE. In this case, XXXX stated that it was difficult to sit down with the Parent to complete a social history update, since the family was away in XXXX, and she e-mailed the form to the Parent in XXXX. She testified that she never received the social history back from the Parent and the Parent did not follow up with her to discuss the evaluation (R. 967).

XXXX also testified that a secretary contacted her in July 2013 to request the status of her evaluation report, stating that XXXX wanted to schedule a CSE meeting in July to review the results. She testified that she ultimately completed her report without the missing information and sent her final report to XXXX during the first week of the XXXX school year, but that a social history update is an essential piece of the evaluation which the Parent did not provide, and she considered her report to be unfinished (R. 990-997; Exs. D-48, P-VV).

XXXX testified that he chaired the meeting on June 19, 2013, and he began the meeting by reviewing the IEP for the XXXX school year. He stated that he needed materials from XXXX or XXXX, any testing that was updated, and any materials that would be helpful in determining a placement for the Student. He stated his belief that it was important to have performance indicators, report cards, and the IESP created by XXXX. He stated that the CSE had no new information at that time, and that he contacted XXXX and XXXX by telephone in the Parent’s presence during the meeting in an attempt to obtain updated information. XXXX said there was no release from the Parent and they could not send anything to the District. XXXX said they would send a consent form right away, which they did, but the Parent refused to sign it. The Parent also did not provide permission for communications by XXXX or XXXX during the CSE meeting (R. 1039-1046).

XXXX testified that without information from XXXX or XXXX, or any of the information he requested, report cards, progress, etc., the CSE could not develop a program at that point. He also stated at the meeting that the CSE could develop a program, based on knowledge that they had, and there was an agreement that the CSE would update its own testing, which was ultimately performed by XXXX. XXXX testified that being at a stalemate, the District had to have an IEP in place, and that the CSE could always reconvene. The CSE proceeded to discuss the XXXX program and make it their recommendation as of June 19, 2013. He stated that based on the Student’s history in XXXX for XXXX and XXXX, XXXX needs were met and XXXX was making progress. A review of the CSE minutes corroborates XXXX’s testimony (R. 1046-1055, 1491-1503; Ex. D-41).

XXXX testified that he scheduled a CSE meeting for September 18, 2013, and he intended for the CSE to review XXXX’s updated XXXX evaluation and educational records in the context of considering a revision to the IEP for the XXXX school year. The documentary evidence shows that the Parent canceled the CSE meeting in two e- mails to XXXX sent at 9:00 p.m. on the night before the meeting and at 10:39 a.m. on the day of the meeting (R. 1318-1319; Exs. D-41, D-55, D-56, D-57, D-62, D-64).

XXXX testified that he tried to reschedule the canceled CSE meeting for October 9, 2013. The Parent replied that she was confused as to the need for the CSE meetings. The record shows that the Parent did not agree for a CSE meeting to be held in the XXXX school year (R. 1326-1335, 1671-1672; Exs. D-57, D-61, D-62).

Although the District argues that it was under no obligation to evaluate the Student since the District had every reason to believe that the Student was staying at XXXX and was under the jurisdiction of the XXXX, the district of location, and that the testing was an accommodation to the Parent, I disagree, for the reasons set forth in this Decision and Order at pp. 144-146, supra (see District’s Post-Hearing Brief at p. 21).

Although the SRO has held that the absence of updated testing did not deprive a student of FAPE where the CSE had accurate and sufficient information to develop an appropriate IEP [see Application of a Student with a Disability, Decision No. 11-043 (June 14, 2011)], I find this case to be distinguishable in that, in addition to the lack of updated testing, the District had no access to educational records from XXXX or XXXX upon which to develop the student’s present levels of academic achievement and functional performance. XXXX confirmed that the CSE had no new information upon which to base its recommendations for the XXXX school year (R. 1037-1038).

In sum, I find that the District had insufficient evaluations and information about the Student at the time it met to recommend a program for the Student on June 19, 2013, and as such, the IEP does not reflect the results of recent evaluations and educational information to identify the Student’s needs, rendering the IEP inappropriate. Although I understand the District’s position that the Parents interfered with XXXX’s ability to complete the XXXX evaluation and withheld consent for release of records from XXXX, XXXX, and XXXX6, I find that these are issues for a balancing of the equities (i.e., Prong 3 of the Burlington/Carter analysis), and do not negate the fact that the District has failed to meet its burden on Prong 1, to show that its recommendations for the Student for the XXXX school year were appropriate.

Next, I will consider whether the Parents’ unilateral placement of the Student at XXXX was appropriate for the XXXX school year.

A private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15, Burlington, 471 U.S. at 370], i.e., the private school offered an educational program which met the student’s special education needs [see Gagliardo, 489 F.3d 112,115; Walczak v. Florida Union Free School District, 142 F.3d 119, 129 (2d Cir. 1998); Matrejek v. Brewster Central School District. 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007) aff’d 2008 WL 3852180 (2d Cir. 2008)].

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” [Gagliardo, 489 F.3d at 112; see M.S. v. Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)]. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement ...” [Gagliardo, 489 F.3d at 112; Frank G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions)]. Parents need not show that the placement provides every special service necessary to maximize the student’s potential [Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 (citing Berger v.

2013, and at the parties’ informal meeting on September 11, 2013 (R. 1040-1046, 3400-3403, 3693-3694, 3697-3705, 3765-3780). Medina City School District, 348 F.3d 513, 522 (XXXX Cir. 2003)(stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”)]. A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a handicapped child’” [Gagliardo, 489 F.3d at 115 (emphasis in original), citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89].

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

[Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65].

An Impartial Hearing Officer may consider and weigh the restrictiveness of a private school in determining whether the private school was appropriate to meet the student’s educational needs. [See S.H. v. New York City Department of Education, et. al., 2011 WL 609885, *9 (S.D.N.Y. 2011); Application of a Student with a Disability, Appeal No. 11-011 (April 1, 2011)]. In S.H., the court noted that while “parents seeking an alternative placement may not be subject to the same mainstreaming requirements as a school board,” ... “the IDEA’s requirement that an appropriate education be in the mainstream to the extent possible remains a consideration that bears upon a parent’s choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate” S.H., 2011 WL 609885, at *9 (internal citations omitted).

XXXX is not accredited by the American XXXX Society. It is also not approved by New York State to provide special education to students attending the school (R. 2792). XXXX is the only teacher who gives the Student primarily all of XXXX new lessons no matter the subject area, unlike the other students, who receive instruction by teachers on a rotational basis, based on curriculum area. XXXX is not New York State certified in XXXX. During the XXXX school year, there were a total of 90 students attending XXXX, 36 of which were XXXX. In the XXXX, there were 25 students. In the XXXX, where this Student was placed, there were a total of 9 students. There are no specific admission criteria at XXXX and no child has ever been turned away (R. 2511- 2514, 2519-2520, 2802-2803; Ex. D-84).

This Student was the only student in the XXXX grade for the XXXX school year, and XXXX was the only XXXX grade student for the XXXX school year (R. 2917-2918). XXXX testified that the XXXX Approach is specifically designed to help students with XXXX and XXXX difficulties. She did not testify as to what, if any, XXXX was used to instruct the Student in XXXX, a particular area of need for the Student. XXXX’s report dated July 20, 2013, indicates that “XXXX proved to be the area of greatest need” for the Student (Exs. D-6 at p. 6, D-48 at 7-8, P-FFF).

During the XXXX school year, there were no XXXX at XXXX (which is chronologically where the Student should be for the XXXX school year), and that XXXX did not develop a XXXX. For the XXXX school year, this Student would be the only XXXX and another prospective student would be a XXXX. XXXX stated that this would not be a problem, as the Student still had not been exposed to a lot of the XXXX grade XXXX curriculum and XXXX would spend time during the XXXX school year on activities that are XXXX and XXXX grade-based, and on some others that would be XXXX, XXXX, and XXXX grade-based. XXXX is registered by the State Education Department as a XXXX. XXXX confirmed that neither she nor XXXX has XXXX training (R. 2890-2891, 2906-2907, 2985-2986, 2919-2920; Exs. D-86, D-87).

XXXX stated that in the XXXX school year, the Student was placed in a group of 9; that lessons were presented to students 1:1; that everyone in the group had 1:1 instruction at various times in the morning; that if the students were not in 1:1 instruction, each completed an assignment that was laid out for them; that every student worked on something different, and they were all working at different levels (R. 2532- 2540, 2563; Exs. P-HHH, P-III).

XXXX testified that the Student worked by XXXXXXX at a table that faced a wall, away from the class, and all materials XXXX needed were at the table. She stated that the Student spent at least 1-1/2 hours of the 3 hour instructional period in the morning at the desk during the XXXX school year. During the XXXX school year, XXXX used the desk more frequently in the morning session, for approximately 2 hours or more, out of 3 hours. The evidence shows that the Student received limited instruction as part of XXXX school day. In the XXXX school year, XXXX had instruction from a teacher for approximately 25-30 minutes out of the 3-hour morning session. The rest of the time the Student worked independently, with a teacher situated approximately 10 feet away from XXXX, working with other students. XXXX afternoon session lasted for 1-1/2 hours, and the Student worked at XXXX desk for 45 minutes, for the most part independently (R. 2545-2546, 2862-2870).

The record reflects that, although XXXX recommended XXXX for the XXXX school year, there were not always other students with which to place XXXX, and XXXX refused to participate until either the winter or spring of 2014. The Student expressed that XXXX did not want to be part of a XXXX where XXXX, XXXX, and XXXX (R. 2561- 2362).

XXXX stated in her report that the Parents and the Student both reported XXXX. The Parents reported to her that the XXXX, and that XXXX. XXXX also noted that the Student has a history of XXXX, and suggested that the school consider XXXX, as well as continue XXXX. There is no evidence that XXXX or XXXX provided any XXXX to the Student to address XXXX issues of XXXX and XXXX during the XXXX school year (R. 2572-2573; Ex. P-L).

Although XXXX testified that the Student is XXXX and XXXX, she also testified that during the XXXX school year, XXXX (R. 2619, 2728).

XXXX testified regarding the profiles of the other students with whom this Student was placed for the XXXX school year. At the start of the school year, this Student was placed with 8 other students. One student had XXXX. A second student had issues, as well as XXXX issues. One student moved up from the XXXX, and he had XXXX issues and more significantly, XXXX issues. He had XXXX. Another diagnosed child also had XXXX issues. Four students had neither XXXX nor XXXX issues. XXXX’s testimony with respect to XXXX issues of students with whom this Student was placed for the XXXX school year conflicts with the information contained in the profile that she created (R. 2677-2681; Exs. D-91, P-III).

XXXX also reviewed the Student’s XXXX for the XXXX school year. The document was drafted in early to mid-October 2013. The Student’s report card for the spring 2014 was not offered into evidence. XXXX stated that the Student regressed in some areas and in getting back into the swing of XXXX. XXXX also increased between the XXXX and the XXXX school years (R. 2700-2701; Exs. P-B, P-J).

XXXX compared the Student’s progress reports dated March 2013 with November 2013 and stated that there was a decrease in the Student’s functioning in XXXX, which she attributed to XXXX. XXXX also experienced a decrease in XXXX. In the area of XXXX, the Student decreased in XXXX. In the area of XXXX, according to the progress report, the Student did not make progress in the area of XXXX. In the area XXXX, XXXX decreased in XXXX. In the area of XXXX, the report shows that no progress was made. There are no grades in XXXX or XXXX for the fall 2013, even though XXXX participated in those subjects in the fall 2013. The Student used XXXX for XXXX from the time XXXX entered XXXX in the fall 2013 until the spring 2014. Also in the fall 2013, XXXX and XXXX assignments were modified so that the Student had the opportunity to XXXX (R. 2856-2861, 2844-2854; Exs. P-B, P-J).

XXXX also discussed the Student’s functioning at XXXX by comparing XXXX reports from November 2012 and March 2013, and noted similarities between issues seen by XXXX and the District. She noted that the XXXX reports indicate that the Student never XXXX; never XXXX; never XXXX and XXXX was (R. 313-314; Ex. P-J).

XXXX also noted that the report indicated that the Student was on XXXX in XXXX during both the fall and the spring, and that XXXX had a basic understanding in XXXX. She noted that the Student made good growth in the District’s programs, and that XXXX at the time XXXX left the District was good. It is also noted in the fall 2012 report that a goal for the Student was to work on XXXX (R. 314, 317; Ex. P-J).

XXXX does not conduct formal assessments of their students using a standardized testing evaluation (R. 2843-2844). However, the Student was assessed using formal assessments by XXXX, XXXX, and XXXX (Exs. D-6, D-45, D-48).

XXXX was asked to compare the testing results obtained by XXXX on May 18, 2012 with the testing results obtained by XXXX who conducted the Student’s XXXX evaluation on June 24, 2013. In the area of XXXX, the Student performed at XXXX, compared with XXXX performance at XXXX one year later. XXXX testified that XXXX is one of the most important skills that a child can have, because XXXX. She characterized the loss as significant, in that it was more than two standard deviations below where XXXX was functioning one year earlier. She also compared the Student’s performance on XXXX, and dropped to the XXXX percentile, one year later. She characterized the decline as significant and falling within XXXX. She also compared the Student’s functioning on XXXX which involves XXXX, in which XXXX scored in the XXXX percentile, with XXXX performance one year later, at the XXXX percentile. XXXX characterized the decline as significant but expected, given the Student’s decline in XXXX (R. 389-403, 416; Exs. D-45, D-48).

XXXX also testified that the Student’s functioning on XXXX, at the XXXX percentile at the end of XXXX grade, increased to the XXXX percentile one year later. She stated, however, if XXXX. XXXX acknowledged that the Student’s standard score in XXXX increased from XXXX to XXXX; that in XXXX, the standard score increased from XXXX to XXXX, that in XXXX, XXXX standard score increased from XXXX to XXXX; and that in XXXX, the standard score increased from XXXX to XXXX. XXXX acknowledged that scores obtained over successive administrations of the same subtests over time, which are not more than 15 points different, are not statistically significant, but that any changes between scores is still of significance. She also stated that she did not have a discussion with XXXX about the Student’s test results at any time, nor did she have reason to call into question the accuracy of the report. XXXX stated that statistical significance in test scores is one factor that is considered in looking at data, but that it is also important to see that progress is being made in the programs that are put into place (R. 404-405, 421-424, 428, 488, 503-507, 513-515; Exs. D-45, D-48).

XXXX also compared the results of her academic testing, which occurred at the end of the Student’s XXXX grade year, with the results of XXXX’s testing, conducted after the Student attended XXXX for 1 year. She agreed that the Student’s XXXX score decreased on XXXX’s administration (although both scores fell in the XXXX range) but that she did not know why, and it could have been attributed to XXXX. However, XXXX’s report indicates that the Student “XXXX” (R. 2404-2406; Exs. D-45, D-48).

In the area of XXXX, the Student’s score decreased from a standard score of XXXX, in the XXXX percentile, in the XXXX range, to a standard score of XXXX, in the XXXX percentile, in the XXXX range. In the area of XXXX achieved a standard score of XXXX, in the XXXX percentile, in the XXXX range, and XXXX decreased to a standard score of XXXX, in the XXXX percentile, also in the XXXX range; in XXXX, the Student achieved a standard score of XXXX, in the XXXX percentile, at the XXXX range, and XXXX decreased to a standard score of XXX, in the XXXX percentile, also in the XXXX range; in XXXX, the Student attained a standard score of XXXX, in the XXXX percentile, in the XXXX range, and XXXX standard score decreased to a XXXX, in the XXXX percentile, at the XXXX range. XXXX acknowledged that the Student’s scores declined from the time XXXX was a student in the District and when XXXX was a student at XXXX, but that the cause of the decline may or may not be XXXX attendance at the private school (R. 2406-2414; Exs. D-45, D-48).

In the area of XXXX, the Student’s score decreased from a standard score of XXXX, in the XXXX percentile, in the XXXX range, to a standard score of XXXX, in the XXXX percentile. XXXX stated that she had insufficient information to render an opinion as to whether the Student’s decreased XXXX and XXXX scores were attributable to the Student’s unilateral placement at XXXX, but that it was possible because XXXX was not receiving the special education services that were provided at the District (R. 2414- 2421; Exs. D-45, D-48).

XXXX reviewed an IESP prepared by XXXX on April 9, 2013 and stated her opinion that the special education services to be provided XXXX school year were not sufficient, and the Student would need more special education services in order to progress (R. 334-335; Ex. P-L).

XXXX also reviewed the IESP for the XXXX school year, and testified that the amount of XXXX to be provided to the Student, XXXX, is inappropriate for the Student and does not comply with the Commissioner’s Regulations, which requires XXXX (R. 1348-1349, 1355-1358; Exs. P-L, P-QQ) [See 8 N.Y.C.R.R. Section XXXX].

XXXX confirmed that XXXX’s IESP for the XXXX school year did not contain any XXXX, XXXX, or XXXX goals, even though XXXX was functioning below grade level in each of those areas during the XXXX and the XXXX school years (R. 2921-2923; Ex. P- L).

Considering the totality of the circumstances, I find that the Parents have not met their burden of proving that XXXX was an appropriate placement for the Student for the XXXX school year. The evidence shows that XXXX did not provide educational instruction specifically designed to meet the unique academic needs of the Student in the area of XXXX. There is no evidence of the use of XXXX, an area of great need for the Student as of June 2013. The Student did not have specifically designed instruction to address XXXX. The students with whom this Student was placed did not have similar academic levels, and all were working on different levels. The Student was XXXX. XXXX also received limited XXXX. The students with whom this Student was placed had XXXX issues. The Student continued to demonstrate continued difficulties in

XXXX. Finally, the Student regressed in XXXX placement as evidenced by his XXXX Progress Reports and in the results of standardized testing.

4. Failure to offer a program in the least restrictive environment for at least the XXXX and XXXX school years.

For the XXXX school year, I find that the District offered a program in the least restrictive environment, for the reasons set forth in this Decision and Order at pp. 161- 162, supra. For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

5. Failure to develop a program that uses appropriate, XXXX to address [the Student’s] XXXX.

With respect to the XXXX school year, I find that the District developed a program that uses appropriate, XXXX to address the Student’s XXXX. The evidence shows that in prior academic years, the Student was instructed in XXXX, XXXX, and XXXX using XXXX, and there is no evidence that the District would not have continued to instruct XXXX, in line with XXXX’s recommendations (R. 646-648, 1663-1164, 1862, 2348, 3040; Exs. 45, 88, 88-A).

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

6. Failure to develop and implement meaningful and measurable goals and objectives.

With respect to the XXXX school year, I find that the CSE developed meaningful and measurable goals which were capable of implementation, for the reasons set forth as part of this Decision and Order, supra, at pp. 156-158.

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

7. Failure to test in all areas of suspected disability.

With respect to the XXXX school year, the evidence shows that the Student’s XXXX were assessed by XXXX as part of the XXXX that she administered on March 4, 2010. The Student’s performance on XXXX yielded a standard score of XXXX, in the XXXX percentile, in the XXXX range. XXXX performance on XXXX yielded a standard score of XXXX, in the XXXX percentile, in the XXXX range. XXXX performance in XXXXX yielded a standard score of XXXX, in the XXXX percentile, in the XXXX range. In XXXX, the Student achieved a standard score of XXXX, in the XXXX percentile, in the XXXX range (Ex. D-6).

XXXX stated in the body of her report that, “The area that caused the most difficulty for [the Student] was XXXX; within this area [the Student] scored at the XXXX percentile within the XXXX range. [The Student’s] XXXX was at times fine, but because XXXX was unable to XXXX. XXXX skills were in the XXXX range at the XXXX percentile” (Ex. D-6).

The record reflects that the District was aware of XXXX weakness in XXXX; XXXX received remediation in the area of XXXX when XXXX attended the District’s programs; XXXX progressed in the area of XXXX; and that remediation would have continued had XXXX remained in the District’s program (R. 222, 227, 240, 660; Exs. D-

6, D-17, D-20, D-24, D-41, D-70, D-71).

With respect to XXXX evaluation, the evidence shows that XXXX attributed the Student’s difficulties in XXXX to XXXX and XXXX (Ex. D-6). Although the District did not perform XXXX, the record shows that at an IESP meeting held on December 17, 2012, the Parent asked XXXX to perform XXXX; that the request was granted; that the evaluation was conducted on March 14, 2013; that XXXX was not recommended for the balance of the XXXX school year; and that when the services were offered in the XXXX school year, the Student declined the services, because XXXX (R. 2561-2562, 2723- 2724; Exs. P-L, P-M, P-QQ).

I find that although the District did not XXXX, its failure to do so did not impede the Student’s right to FAPE, did not impede the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the Student, or cause a deprivation of educational benefits.

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

8. Failure to recommend XXXX to attempt to ameliorate and/or address [the Student’s] XXXX.

For the XXXX school year, the evidence shows that XXXX was not necessary to ameliorate and/or address the Student’s XXXX, given the District’s other efforts in that regard, as set forth in at pp. 168-169 of this Decision and Order, supra.

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

9. Failure to offer appropriate XXXX, included but not limited to XXXX and for at least the XXXX, XXXX, and XXXX school years.

With respect to the XXXX school year, the evidence shows that the CSE made its recommendations for programming on April 11, 2011. The Parents filed their Due Process Complaint Notice on September 30, 2013 (Exs. IHO-3, D-20). Insofar as the Parents knew or should have known, as of April 11, 2011, the nature of the XXXX, if any, that the CSE recommended, I find that the claim is time-barred.

With respect to the XXXX school year, the evidence shows that the Parent XXXX (Ex. D-24).

The evidence also shows that as of the XXXX school year, the Student’s XXXX were a strength; that XXXX; that XXXX had difficulty XXXX; that XXXX. The CSE listed improvement of the Student’s XXX (Ex. D-24).

The evidence also shows that XXXX, and involved XXXX. I find that the Student did not require XXXX (R. 287-290; Ex. D-24).

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

10. Failure to offer appropriate XXXX.

For the XXXX school year, I find that the XXXX recommended for the Student were appropriate for the reasons set forth at p. 159 of this Decision and Order, supra.

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

11. Failure to offer XXXX.

For the XXXX school year, I find that the Student did not require XXXX. The evidence shows that the Student XXXX (R. 664-666, 2561-2562, 2723-2724).

For the XXXX school year, I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

12. Failure to respond appropriately to XXXX.

A review of the hearing record shows that it contains conflicting information about XXXX. The Parent testified that she made the CSE aware of her concerns regarding XXXX at a CSE meeting held for the XXXX school year. The IEP contains no information with respect to XXXX. It states XXXX. XXXX testified that the Parent never raised an issue with respect to XXXX with the exception of a CSE meeting that occurred after the Student was placed in XXXX for a year, and stated her opinion that the Student was XXXX, as alleged by the Parent. XXXX described XXXX as XXXX. There is also no documentary evidence in the record on the issue of XXXX (R. 290-291, 695, 3117- 3119, 3131-3136, 3146, 3858, 3863-3866; Exs. D-20, D-45).

XXXX described the Student as XXXXl. She stated that XXXX (R. 1858). She stated that once XXXX (R. 1924-1925). Although the Parent stated that XXXX (R. 3110-3112), XXXX stated that she had XXXX. She made no mention of XXXX (R. 2022).

XXXX stated that during the course of her tutoring the Student as part of her XXXX certification after the Student left the District, XXXX made a comment to her that XXXX. She stated that XXXX, but she mentioned it to the Parent (R. 2017-2020).

Assuming for the sake of argument that the hearing record in this case contained evidence specifically showing XXXX, there is no indication from the evidence in the hearing record that XXXX was having an effect upon the Student’s special education services that resulted in the denial of FAPE or that the Student did not receive meaningful educational benefit [See Dear Colleague Letter, 61 IDELR 263 (OSEP August 20, 2013) (noting that district had an obligation to ensure that students who are XXXX continue to receive FAPE pursuant to their IEPs); see also Dear Colleague Letter, 55 IDELR 174 (OCR 2010); see also Smith v. Guilford Board of Education, 2007 WL 1725512 at *4-*5 (2d Cir. June 14, 2007) (indicating that XXXX might, under some circumstances, implicate IDEA considerations)]. There is no indication from the hearing record that any XXXX resulted in the District’s failure to implement substantial or significant provisions of the IEP or that the Student was denied educational benefits or failed to make academic progress. See Application of a Student with a Disability, Appeal No. 13-172 (November 21, 2013).

13. Failure to allow [the Parents] to meaningfully participate in the development of [the Student’s] IEP.

The Parents assert that they requested profiles of the class proposed for the XXXX and XXXX school years, and the request was denied by XXXX.

In Cerra v. Pawling Central School District, 427 F.3d 186, 194 (2d Cir. 2005), the United States Court of Appeals for the Second Circuit held that districts are not obligated to provide parents with student profiles for special classes, particularly when they did not yet exist. The Court held that, unlike an IEP, the Act’s statutory and regulatory provisions do not expressly require school districts to provide parents with class profiles.

I find that the failure to provide profiles did not deny the Parents meaningful participation in the development of the Student’s IEPs. The record also reflects that the Parent stated on a number of occasions her familiarity with the other students with whom this Student would have been placed in the self-contained special classes for XXXX and XXXX (R. 3172).

The documentary evidence also shows that each time the Parent made requests for the Student’s records, the District complied (Exs. D-27, D-28, D-43, D-47).

14. Failure to timely offer a program for the XXXX school year.

I find that I need not consider this issue in light of my finding that the District failed to provide an appropriate IEP for the XXXX school year.

15. Failure to provide XXXX necessary for [the Student] to receive FAPE for the XXXX and XXXX school years.

I find that I need not consider this issue in light of my findings that the District provided an appropriate IEP for the XXXX school year and that the Parents’ unilateral placement at XXXX for the XXXX school year was not appropriate.

I note that the IDEA does not provide for compensatory damages, including lost wages. Polera v. Board of Education, 288 F.3d 478 (2d Cir. 2002); Application of a Child with a Disability, Appeal No. 07-133 (February 4, 2008). 16. Failure to offer XXXX Services [“XXXX”] for at least the XXXX and XXXX school years.

The evidence shows that neither the District nor XXXX recommended XXXX services for the Student for either the XXXX or XXXX school years (Exs. SD-24, SD-35, SD-41, P-L, P-QQ). XXXX also did not recommend XXXX services for the Student as part of her recommendations (Ex. D-45). XXXX, the Student’s XXXX, stated her opinion that XXXX. She stated that XXXX (R. 1094-1096, 1165-1167).

XXXX testified that the Student participated at XXXX, and that XXXX. XXXX expressed that XXXX. Class size varied from week to week, and parents determined the extent of participation of their children in XXXX. XXXX stated that she recommended that the Student participate in the program for XXXX, because XXXX (R. 2572-2577).

XXXX has no XXXX. XXXX has no XXXX. Also, neither XXXX nor XXXX (R. 2384-2785, 2790; Exs. D-82, D-83).

For the aforementioned reasons, I rely on the opinions of XXXX, the District’s CSE, and XXXX’s CSE and I find that the District’s failure to offer XXXX services to the Student did not deny the Student FAPE.

The Parents’ Closing Brief sets forth a claim for XXXX (see Brief at pp. 26-28). I have reviewed the Due Process Complaint Notice (Ex. IHO-3) and I find that although the Parents reference generally Section 504 and the ADA on p. 4 of the Due Process Complaint Notice, nowhere in the Complaint is an issue of XXXX raised. Insofar as a XXXX claim is not contained in the Parents’ Due Process Complaint Notice, I do not consider this claim (see Footnote 1, supra, at p. 53 of this Decision and Order).

Having found that the Parents have not met their burden, I need not make a determination as to whether the Parents’ claim is supported by equitable considerations. The necessary inquiry is at an end [See Burlington, 471 U.S. 359 (1985); see also Gagliardo, 489 F.3d 105, 115 (2d Cir. 2007); M.C. v. Voluntown Bd. of Education, 226 F.3d 60, 66 (2d Cir. 2000); Application of the Board of Education, Appeal No. 10-005].

ORDER

Based upon the above, it is hereby

ORDERED, that the Parents’ application for full reimbursement for the tuition for, related expenses of, and transportation to and from XXXX School for the XXXX and XXXX school years is hereby denied; and it is further

ORDERED, that full reimbursement and/or prospective payment for tuition, transportation, and related expenses for the XXXX and XXXX school years, inclusive of XXXX services is hereby denied; and it is further

ORDERED, that provision of immediate transportation to XXXX for the XXXX school year is hereby denied as moot by virtue of the District’s agreement to provide transportation to the Student for the XXXX school year, made on the record at the Impartial Hearing; and it is further

ORDERED, that reimbursement for any out-of-pocket expenses and lost wages related to the District’s failure to timely provide transportation to and from XXXX for both the XXXX and XXXX school years is hereby denied; and it is further

ORDERED, that reimbursement for monies paid for XXXX is hereby denied; and it is further

ORDERED, that reimbursement for the XXXX evaluation conducted by XXXX dated May 18, 2012 is hereby denied; and it is further

ORDERED, that the Parents’ request for compensatory services for the XXXX school year is hereby denied; and it is further

ORDERED, that the Parents’ request for reimbursement for any out-of-pocket expenses for the District’s failure to provide XXXX services XXXX is hereby denied; and it is further

ORDERED, that the Parents’ request for attorneys’ fees and expenses is hereby denied.

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the Parents and/or the Clarkstown Central School District have a right to appeal this decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the Parents plan to appeal the decision, a notice of intention to seek review shall be personally served upon the School District not less than 10 days before service of a copy of the petition for review upon the School District, and within 25 days from the date of the decision sought to be reviewed, so that a certified copy of the hearing record may be prepared for submission by the School District. If the School District plans to appeal the decision, the District shall file a certified copy of the hearing record together with its petition.

An appealing parties’ petition for review shall be personally served upon the opposing party 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 4 days subsequent thereto shall be excluded in computing the 25- or 35-day period [8 NYCRR Section 279.2(b)].

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DATED: September 8, 2014

New City, New York

____________________________________

WENDY K. BRANDENBURG, ESQ.

Impartial Hearing Officer

Footnotes

[1] I note that testimony was adduced at the Impartial Hearing regarding a request for reimbursement for XXXX’s report. The Due Process Complaint Notice references, as a Proposed Resolution, reimbursement for XXXX’s report “due to the District’s failure to seek out and adequately evaluate [the Student].” As such, I shall only consider the Parents’ request for reimbursement for the evaluation in the context of their child find claim. It is well-settled that a party requesting an Impartial Hearing may not raise issues at the hearing that were not raised in its original due process complaint notice unless the other party agrees [20 U.S.C. Section 1415(f)(3)(B); 34 C.F.R. Section 300.507(d)(3)(i)] or if the original due process complaint notice is amended prior to the Impartial Hearing with permission given by the Impartial Hearing Officer at least 5 days prior to the Impartial Hearing [20 U.S.C. Section 1415(c)(2)(E)(i)(II); 34 C.F.R. Section 300.507(d)(3)(ii); 8 N.Y.C.R.R. Section 200.5(i)(7)(b)]; Application of a Student with a Disability, Decision No. 10-105 (January 3, 2011). 38

[2] Insofar as the Due Process Complaint Notice does not raise an issue with respect to the Parents’ failure to receive a copy of XXXX’s report, I decline to address the issue for the reasons set forth in footnote 1, supra. 51

[3] The XXXX scores are reported on the IEP (Ex. D-24) but were not placed separately into evidence.

[4] Scores from the XXXX are reported on the IEP (Ex. D-24) but were not placed separately into evidence. The record does contain the Student’s results from the XXXX administered in Spring 2008 (Ex. D-79) and Spring 2010 (Ex. D-80).

[5] Scores from the XXXX are reported on the IEP (Ex. D-24) but were not placed separately into evidence. 106

[6] Consent for release of XXXX’s XXXX report and for the Student’s records from XXXX was eventually given by the Parents on June 24, 2013, after the CSE meeting held on June 18, 2013, and a year after the District requested executed releases from the Parents in 2012. The evidence shows that the Parent never signed XXXX’s form, as stated by XXXX during the course of the CSE meeting held on June 18, 115