New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: September 11, 2014

October 22, 2014

November 10, 2014

December 10, 2014

December 11, 2014

January 20, 2015

January 23, 2015

January 29, 2015

February 4, 2015

February 6, 2015

Actual Record Closed Date: May 28, 2015

Hearing Officer: Elise Kestenbaum ,Esq.

CORRECTED

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 11, 2014

Esq. Attorney — Student

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 22, 2014

Esq. Attorney — Student

Parents

District Representative — DOE

District Representative — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2014

Attorney — Student

Impartial Hearing Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 10, 2014

Esq. Attorney — Student

Parents

District Representative — DOE

Psychologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 11, 2014

Esq. Attorney — Student

Parents

District Representative — DOE

Special Education Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 20, 2015

Esq. Attorney — Student

Parents

District Representative — DOE

District Representative — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 23, 2015

Esq. Attorney — Student

Parents

(via telephone) — Student

Dr., (via telephone) — Student

District Representative — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 29, 2015

Esq. Attorney — Student

Parents

Supervisor (via telephone) — Student

Provider (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 4, 2015

Esq. Attorney — Student

Parents

Dr. (via telephone) — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 6, 2015

Esq. Attorney — Student

District Representative — DOE

Introduction: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC § 1400 [f][1] and Part 200 of the Regulations of the New York State commissioner of Education. This matter was brought by , the Parent (“Parent”) on behalf of , the student (“Student”) through their attorney, , Esq.,by filing An Impartial Hearing Request dated July 15, 2014. P-1.

The Parent is alleging that her son, , was denied a free and appropriate public education (“FAPE”) for the 2013-14 and 2014-15 school year and is seeking for the 2014-

15 school year a minimum of hours of

( ) services; related services of and ),

( ), ( ) and ( );

Instructor ’s class; program supervised by a or similarly experienced provider; consulting teacher services to provide training to the teachers and staff at ’s school; hours of Parent training per month by providers, hours of Parent training per month by an provider; transportation with ; school year; and compensatory services for the 2013-14 and 2014-15 school years. Although the relief requested included, in the alternative, funding for school, the Parent is no longer requesting this.

There were nine (9) days of hearings in this matter. Hearings were conducted on September 11, 2014, October 22, 2014, December 10, 2014, December 11, 2014, January 20, 2015, January 23, 2015, January 29, 2015, February 4, 2015, and February 6, 2015.

Extensions were granted in this case making the final compliance date June 5,

2015.^[1] Briefs were prepared by the parties and were due on March 13, 2015. A list of Exhibits is attached as Exhibit A. The Parent, the District and the Impartial Hearing Officer all submitted exhibits.

Background:

This case involved a year old student. During the 2012-13, 2013-14 and 2014-15 school year, attended .

With respect to the 2014-15 school year, an Individualized Education Program (“IEP”) was developed on June 24, 2014. Prior to this, a triennial meeting was held on March 27, 2014. A program was recommended for the Student at that time, however when the Parents and their advocate and service providers disagreed, the committee agreed to defer the case to Central Based Support Team (CBST). Subsequent to the meeting, Mr. was advised that he did not have the authority to defer the case and the meeting was reconvened on June 24, 2015. Pursuant to the June 24, 2014 IEP, the following recommendations were made:

1. , times per week, , period each time;

2. , times per week, , period each time;

3. , times per week, , period each time;

4. , times per week, , period each time;

5. , , times per week, each time;

6. , , time per week, each time;

7. , , time per week, each time;

8. , , time per week, each time;

9. - , , times per week, each time;

10. - , , times per week, each time;

11. , , , ; and

12. Specialized transportation. According to his IEP, would receive a program and was mandated to receive his related services of , , and - for the summer. D-2

Pursuant to a Pendency Order dated October 7, 2014, the parties agreed that Pendency was based on the Second Amended Findings of Fact and Decision of IHO Israel S. Wahrman, Esq. dated July 24, 2013. P.B; Tr. 18; IHO – I. Based upon that decision, was continuing to receive the following:

1. class2;

2. , , times per week, each time;

3. , , time per week, each time;

4. , , time per week, each time;

5. - , , times per week, each time;

6. - , , times per week, each time;

7. , , , ;

8. hours per week of training for the Student’s special education teacher and to be provided by an individual with credentials and experience which demonstrates their proficiency in ;

9. hours per week of Training for the special education teacher and to be provided by an individual with credentials and experience which demonstrates their proficiency in

;

10. hours of services;

11. hours of parent training in conducted by a professional with expertise in this area; and

12. hours of Parent training in techniques conducted by a professional with expertise in this area.

The Parent filed a Due Process Complaint on July 15, 2014.D-1. I was appointed as an Impartial Hearing Officer on July 15, 2014.

Position of the Parties

Parents’ Case

The Parent called six (6) witnesses, , Dr. , ,

, Dr. , and the Parent, and placed twenty-four (24)

documents in evidence. P-A-P-G; P-R-P-U; P-X-P-KK.

Parent’s first witness was Ms. . Ms. is employed by

(“ ”) and as a (“ ”) and supervises several

2 This November 2013 IEP provided for a class, however the Parent did not agree with this so the administration accommodated the Parent and placed the Student in an class. Tr. 83-84. In addition the IHO Order provided that “In the event that there is a dispute with the parent with regard to the type of class that the IEP team offers for and the Parent files a request for a due process hearing with regard to the ” P-B. cases. She is currently a candidate for (“ ”) and has completed all the requirements including completing hours of . Tr. 721. Ms. has a dual certification in special education for birth through and through . Tr. 721. She has been working with since he was years old. Tr. 722. She is presently servicing him through . Tr. 722. She has training through lectures, direct instruction from her supervisor and ongoing training. Tr. 722-723.

During the 2013-2014 school year, Ms. provided with hours of services, hours directly. Tr. 724. Her colleague, also from , covered the remaining hours. She also did of parent training and hours of training for the , special education teacher, and teacher at school.

Tr. 724-725. She observed in his classroom setting, talked to his teacher and and discussed his areas of need and worked on conducting , and skills through and teaching him at his level. Tr. 725. For the 2013-14 school year, Ms. testified that she observed ’s main deficit is ; he did better with . She testified that she spoke mostly to ’s during her time in the classroom. Tr. 730. She explained that she taught the teachers how to use the “ ” model for his . Tr. 731. This model worked on ,

, and

. Tr. 732. With respect to ’s

from beginning of 2013 to the end of the 2014 school year, Ms. indicated that there was a big change from the beginning of 2013 where .

Tr. 734. She stated that he is . Tr. 734. She

stated that .

Ms. testified that both her, the teacher and the . Tr. 738.

She did, however feel that if she received more hours in the classroom, she could work more on academics and support him. Ms. testified that she engaged with ’s teachers in the classroom. With respect to working with ’s , Ms. thought that she was good, however, an person would be able to constantly and work with his : “ ” Tr. 740. She stated that needs She stated that “ ” Tr. 741. She felt that the explained that she spent most of her time with

Tr. 745.

Tr. 745. She explained that “ ” “

” is still an issue. Tr. 751. Included in her services, Ms. prepares quarterly reports reviewed by her supervisor, Ms. .

Ms. attended the June 2014 IEP meeting and recalled that the Parent asked for a continuation of ’s placement to be in the classroom with more .

Tr. 753. She spoke about what they did in the classroom and stated that he needed more support. Tr. 753. She also indicated that a setting with has helped improve, especially in the area of . Tr. 754. At the meeting, Ms.

recommended receive hours in hours, in order to work more on his academics, including hours to work more on : “[r]ight now, it is not enough time to take him ‘ ’ to other settings.” Tr. 756. These hours would include parent training. Tr. 756. Further, she testified to her recommendation for an additional more class hours for academics, per day. Tr. 757. She also testified that needed a or an at all times. Tr. 757.

During the June 2014 meeting, the Parent asked for the continuation of his placement in the class and more . Tr. 753. She believed he needed hours of services including hours to take him outside for settings.

Tr. 756. Also he Ms. stated she disagreed with the District’s recommendation for a program since he would not be . Tr. 761. She went on to explain that during the 2014-15 school year, continued to improve as far as from last year. Tr. 764. Ms. stated that she worked with Ms. , the special education teacher, during her hours in the classroom to talk about how the week went, what the areas of need were, what the progress was and what else they needed to do. Tr. 770. Ms.

also . Tr. 770. When speaking to Ms.

, Ms. recalled her saying, “ ” Tr.

774. Ms. also testified that, despite this progress, he still needed and an person who has training to do the modifications right there instead of waiting a whole week. Tr. 774.

Ms. testified that she disagreed with a summer placement. Tr.

776. She agreed needed services but recommended continued services with parent training. Tr. 777. She said that for the 2014-15 school year, had difficulty at the beginning of the year. Tr. 764. During the 2014-2015 school year, Ms. is in the class a week for hours. Tr. 770. Ms. further testified that she believed that his current placement is appropriate due to the progress he has made. Tr. 783.

On cross-examination, Ms. stated that despite making progress, he still had areas of need and was not there yet to start decreasing his hours. Tr. 892. She stated that she has observed the implement the skills she has taught her. Tr. 887.Ms.

reiterated that would not be able to function in an setting without support. Tr. 892. She further testified that when a student begins to show improvement they may terminate services but it is on a case-by-case basis. Tr. 899.

In the case of , he made progress “

” Tr. 901.

Ms. stated that her objection to a setting is that he will not be introduced to . Tr. 897. She stated that if the services he receives in school and are decreased he would regress. Tr. 903. She also said that usually when she is in the classroom with both teachers, Ms. is teaching and the teacher is prepping for her next class. Tr. 904.

The next witness was . She is a Ph.D. and expert and ’s Supervisor. She is a at the doctoral level since 2001. Tr. 789. Dr. works in private practice as a consultant for many schools in New York, New Jersey and Connecticut as well as for parents, conducting evaluations for children with special needs, which includes observations of the student. Tr. 792. She observed students in other classes in NYC and is familiar with programs. Tr. 794. She is an expert and ’s superviser and also teaches courses in and programs and she also supervises interns in NYC schools.

Dr. worked with in school on multiple occasions and providing parent training every months starting in late 2013 and extending into

2014. Tr. 795. She conducted an evaluation on before meeting him but observed him on a couple of occasions in the fall of 2013. Tr. 797. Dr. observed in his class and identified some “ ”. In his class last year there were kids including kids with special needs and only special education teacher. Tr. 801. She indicated that in a true class, there should be a teacher and a special education teacher present for the entire school day. Tr. 803. There was no special education teacher in class from September through December of the 2012-13 school year. Tr. 803. In her report dated February 20, 2013, she noted did not have a or and it was noted in his IEP that he did not need one. Tr. 810.

However, according to her observations, she felt he needed one because he did have , his own availability to learn as well as the instruction of the other students in the class. Tr. 811. As a result , Mr.

conducted both for the 2012-2013 school year, however, she stated she did not know if they were being used in ’s class. Tr. 812-13.

Based on her observations, Dr. noted the difference in between and in class. Tr. 821. She recommended hours of instructions to support his learning in school. Tr. 824. She stated these additional hours would provide the opportunity to . She stated that he could learn if her were made available to what was going on in the classroom. Tr. 825. According to Dr. , a less restrictive classroom is important because has “deficits in skills with peers and that was an area that required more effective intervention. Tr. 825. She noted that instead of a , should have a special education teacher who has greater capability, who effectively intervenes for a student who has in the classroom. Tr. 828. Even if the District offered a special education teacher in the classroom for a full day, Dr.

testified she would still recommend to have a teacher because with the other special education kids in the class, she would not be able to provide the level of intervention that he required. Tr. 828. In addition she felt that should all be modified. Tr. 828. She also stated that the would do training with since she stated that when she observed him in 2013 his

. Tr. 832.

In her report, Dr. made her recommendations at both the November 2013 and June 2014 IEP meetings. Tr. 830. She recommended a program because documented “regression” and she thought there would be “regression during the last three and a half weeks of the summer in which he had no services.” Tr. 834. She based this on the fact that he did not have an effective program during the 2012-13 school year. She testified that similar regression was documented by Ms. during vacations and days off from school. Tr. 836. Dr. indicated that the last time she observed was in the Fall of 2013. Tr. 837.

According to Dr. , the November 2013 IEP meeting (which she attended)

was held to discuss implementing the IHO Order. Tr. 839; P-2. She stated that the District agreed that would be more effective but that they could not write on his IEP. Tr. 839. During this meeting she discussed her report and recommendations. Tr.

839. She testified that because the District could not really implement any into the classroom, she did not think they accepted her recommendations at the time. Tr. 840. Dr.

did not prepare another written report after the first . Tr. 841

In the June 2014 IEP meeting Dr. also provided her evaluation report.

Based on her former observations of , she presented the same recommendations. She felt her recommendations would not have changed, stating would have required [her recommendations] on an ongoing basis as he still continued to have the same level of need in the classroom that he had previously. Even though he was showing improvement he still continued to need support in the classroom.” Tr. 842. An alternative recommendation would be to have a and have a teacher during academics. Tr. 842-843. Dr. testified that according to Ms. , is doing better this year, that there has been a lot more support, more instruction with a special education teacher and he is learning the content and material more quickly and effectively with the supports in place. Tr. 843-844.

According to Dr. , they recommended at class but she felt should stay in an class because she did not feel should be in a class that did not have more because “ ” Tr. 844. She also stated that it was her understanding that a larger number of students in a class are .

Dr. testified that it appeared that the District already made a decision to recommend a . Tr. 846. She did, however, state that Ms. presented a case as to why she thought a class was appropriate for Tr. 877. She didn’t recall whether she was at the meeting in March when CBST was discussed. Tr. 847. Dr.

testified she believed the recommendation was based on ’s scores and she thought scored based on the methodology of testing and stated, “the scores didn’t really correspond with [ ’]s .” Tr. 849. Dr.

suggested the use of test for a student like

“

” Tr. 850.

On cross-examination, Dr. acknowledged that her report was nearly two years old and that she did not have any current information regarding the student’s performance in school aside from what Ms. reported to her. Tr. 854. She reiterated her recommendation to have the supervision over the whole program including academics and social interventions, including collaboration with ’s teachers as well as the program and parent training. Tr. 865.

On redirect, Dr. noted that a class would be larger than his current class of out of students, however she did not recall being in ’s class when it was . Tr. 867.

Next to testify for the Parent was Ms. . Ms. works as the Program Director for a special education agency called and has a part-time position as the supervisor with . Tr. 913. She has a Master’s degree in psychology, licensed in adult and is certified as a teacher in special education for students birth through grade and . Tr. 915. She is also certified as a school building leader and school district leader and also a and licensed in New York. Tr. 915.

Ms. was introduced to in 2006 as the Clinical Coordinator of and , while working for (“ ”). was a student at that time. Tr. 917. Subsequently, Ms.

acted informally as a parent advocate for , beginning when he turned . She has attended all of his IEP meetings. Tr. 920. She was not involved in overseeing his program until she became his official superviser in the summer of 2013. Tr. 920.

During the 2013-14 school year, Ms. was supervising ’s case through . Tr. 920. Pursuant to the IHO order (P-2), beginning in September 2013, was receiving hours services and hours a week of training at school as well as of parent training. Tr. 921. Ms. was assigned as the to and would go into the classroom hours a week. Tr. 923. She testified that the school changed ’s in October 2013 and Ms. has been working with the new to this day. With respect to Ms. ’s services, Ms. testified, “[Ms. ] was doing a little bit of everything, as much as you can in hours.”

“ ” “ ” “ ” Tr. 923-

924.

Ms. noted ’s strength was his , however, his were poor. An additional strength is ’s interest in , however due to issues he wasn’t accessing his education and there was an increasing gap in ’s . Tr. 926. Ms. set up a with his and teachers to help him attend and reinforce him. With respect to his progress, Ms. noted improvement of over the course of that year due to hours, working with Ms. and his and working with the , such as the . Tr. 930.

Ms. had frequent interactions with ’s Parent, “ ” as well as daily communication with his teacher, Ms. . Ms. is not permitted in the school so she can only see at his . Tr. 935. She also is familiar with Ms. ’s quarterly reports, which were submitted into evidence from 2013 and 2014 and recommendations discussed during IEP meetings. Tr.939; P-T.

Ms. attended the November 2013 IEP meeting to discuss the IHO Order (P-

2), primarily to decide whether should have a or . Tr. 942. Ms. and ’s Parent agreed he should have a provider. Tr. 942-43. Despite agreeing to a teacher, Mr.

had to confirm with his supervisor and so they did not finalize the IEP that day. Tr. 945.

Ms. stated that it was her understanding from the meeting that Ms. was to replace the , pending confirmation from ’s supervisor. Ms.

stated that the District ultimately decided not to have a professional, however, was still receiving hours of services and continued to be assisted by a . Tr. 950-951. The reason the meeting took place in November even though the IHO Order was issued in July was to give the teachers time to get to know him and see what he was like in the school, however, most items were implemented prior to that time.

Tr. 952.

Despite meeting to go over the terms of the IHO Order, Ms. believed the goal of the meeting was frustrated because they did not ultimately implement what the team had decided was in the best interest of pursuant to the Order. Tr. 951; P-2. Ms.

testified that a is not qualified to collect and interpret the data and is not trained to modify the program. Tr. 954-55. Because training is only hours a week, they are only able at a time, however, if there was an in there throughout the day, there would be a number of things and addressed, as opposed to . Tr. 955; Tr. 56-57.

Ms. attended the March 2014 IEP meeting to discuss the following school year. She testified that everyone agreed progress from September to March was slow. Tr.

948. Her recommendation at that meeting was for more hours in school, however, due to ’s slow progress, the school recommended a program. Tr. 960. Ms.

stated that the teachers agreed with ’s Parent that this might not be the best placement for and that there was not an appropriate public school placement. Ms.

testified that she and the Parent agreed to Mr. ’s recommendation of a deferral to CBST because was not making significant progress. Tr. 962. There was not further discussion as to what type of private program placement they would consider.

Tr. 964. Ms. did not know how far along in the process Mr. got with the referral to CBST. Tr. 965.

Ms. also attended the June 2014 IEP meeting. She stated that the private placement was not approved and they reconvened in June to discuss ’s placement. Tr.

970. At this meeting she recalled Mr. ’s recommendation was for a . Tr.

970. Ms. testified that she disagreed with this recommendation because as compared to their observation of at the March meeting, made “some great progress” from March to June. Tr. 970. She stated that his “ ” evolved to a point where they are now using a “ ” “ ” Tr. 970. She testified that is at a point where

“no longer

” Tr. 971. She further stated, “[ ] is by , , .” Tr. 972. It should be noted that he only has the special education teacher for and . Tr. 973. She stated that the June meeting differed from the March meeting due to the progress made. Tr. 973. They still felt that that there was a large gap and that he needed more supports. Tr. 973. Despite requesting additional supports, Ms. stated that the decision for a without continuing his services was the only option presented.

Tr. 979. Specifically, she recalls Mr. stating that he couldn’t put on the IEP. Tr. 979. Ms. testified that the let the team discuss placements and then he stated the recommendation. Tr. 980. He gave them a draft of the IEP at the beginning of the meeting but placement was not filled in. Tr. 981. She said that she didn’t leave with an IEP but that they left knowing that consensus was that was now recommended for the . She indicated that the IEP was sent . Tr. 981. With respect to afterschool services, Ms. testified that Mr. said that we are not here to discuss after school series only school services. Tr. 982. She said that she has never had a meeting where services were put on the IEP. Tr. 982.

Ms. testified that for the 2014-2015 school year, ’s placement remained under pendency. continues to receive hours of services and hours at school. Tr. 982. Ms. testified as to his transition into this school year. She stated it was helpful he was in an class with the same special education teacher and and although some of his returned, they were able to “ .” Tr.

983. With respect to the 2014-2015 school year, Ms. noted that “[ ] continues to be by . That has continued to increase.

Now that he is settings for the most part and , we’re able to work on some other skills,” “ .” Tr. 984.

.” Tr. 984.

Speaking specifically to progress, Ms. stated that although the “gap”

Tr. 988.

“[ ’s]

from that March to June has .” Tr. 988. In Ms. opinion

“ ” “[ ] needs a teacher to be able to do that.” Ad Tr. 991. Ms. stated is that another factor to consider is that he benefits from the methodology. She further explained that even in a class, she thinks needs because that is his method since he was years old. Tr. 991. Like his current class, there are still kids in a

, only “ ” “

” Tr. 992.

With respect to Ms. ’s current recommendations, she testified needs an increase in his services of hours, including parent training and hours to maintain consistency in order to close the gap. Tr. 992. She further recommended an additional hours at school per week to cover hours per day on multiple subjects. She noted areas of “ ” Tr. 994. Ms. also recommended for for a total of hours a week to prevent regression. Tr. 998. She believed he would benefit from an class in , but since it doesn’t exist he should ideally be put in some sort of program with . Tr. 968.

On cross, Ms. was asked about ’s progress in light of the current hours. Tr. 1001. She recalled that when the team met in June there was talk about the rapid rate of progress made between March to June, however, there was minimal progress prior to that. Tr. 1002. Ms. testified that Mr. was told that wasn’t being referred to CBST because that wasn’t the “ ”

“ ” Tr.

1002-03. She acknowledged that is making progress this school year but that it is hard to gauge whether the gap is getting smaller because the other kids are making progress as well and she did not know his specific grade levels at that time since they were in the middle of IEP meetings where they would normally discuss them. Tr. 1006.

She identified, on cross, the areas of progress included his and his . She added that a big area of need continues to be although he can now

. Tr. 1006.

On cross, Ms. stated that she thought needed to be around “

”

. Tr. 1014. Ms. testified that was entitled

to “compensatory hours,” which she defined as making up for the hours that he should have had previously, that he doesn’t have now. An example she provided was Tr. 1016. She stated that as a result, they haven’t been able to work on “ ” skills. Tr. 1017. She testified that they did not talk about skills at their IEP meetings. Tr. 1017.

On redirect, Ms. testified she felt was entitled to those compensatory hours he didn’t receive in the 2013-2014 school year to help close the gap in his academics since he didn’t have a teacher. When asked to define his progress, Ms. clarified that although has improved since March 2014 with his hours a week of and his hours , “I don’t believe it’s what I would consider meaningful progress.” She went on to define “meaningful” progress, as progress that “ ” so he can “keep on his educational path that’s going to be beneficial, as opposed to kind of moving now backwards, going to getting more restricted.” Tr. 1031.

The Parent’s next witness was . Mr. is an consultant for , providing evaluation and services to students with disabilities and their families and educational teams. He has a Master’s degree in applied psychology. Tr. 1037. He has the ( ) professional certification. He testified he has over twenty years of professional development training workshops and attending conferences. Tr.

1038. He is also an Adjunct Professor in the special education department at . Mr. testified he has experience working with schools and agencies for kids of all ages with disabilities, mostly hired by the district. Tr. 1039-1040.

Mr. explained that is defined as “

” Tr. 1041. His services include

“

” Tr. 1041.

Mr. testified that he conducted an evaluation of , pursuant to the IHO Order , paid by the District. Tr. 1044; P-B. The evaluation was performed at ’s school beginning with classroom observation of in his natural learning setting. Tr. 1044. He then met with to test a variety of to address supports for , and .” Tr. 1044. Subsequent to his evaluation, in the fall of 2013, Mr. began working with on implementing .

Tr. 1045. Mr. recommended be provided with a number of technologies to support him such as, , , and , which each assist programs. Tr. 1045. According to Mr. , his recommendations were made for specific areas as they were revealed as areas of challenge for through speaking with his family, his educational team, and reviewing his reports. Tr. 1046.

During the 2013-2014 school year, Mr. worked with between and hours a month and provided his services to his and teachers as well.

Tr. 1047. His support included and

’s

. Tr. 1047. Mr. testified he set up and , programs and he worked in conjunction with ’s to help improve his skills. Tr. 1048. During ’s evaluation, Mr.

observed he had but that did not always come through with .

Tr. 1049. He testified that all students should be proficient in and found that was able to . Tr. 1050.

With respect to the 2013-2014 school year, Mr. testified that initially there was a slow start but “[ ] did make quite a bit of progress. He progressed to the point where he had mastered using and .” Tr. 1050. More specifically, stated, “

” Tr. 1051.

During the 2013-2014 school year, Mr. testified he spoke with ’s and teachers regarding the impact of the and noted his improvement over the year. Tr. 1051. He also spoke with Ms. at ’s ,

. Tr. 1054.

He provided Ms. and ’s mom with training and to set up at his that he was using in class and testified he worked with a month or every other month for approximately hours. Tr. 1055.

Mr. testified that there were no major program changes for the 2014-2015 school year. Tr. 1056. As far as Mr. knows, they are not working on any programs during this school year. Tr. 1058. He testified that he usually consults with the classroom and special education teacher for that information. Tr. 1059. Mr.

explained that they continue to utilize these programs to improve is skills and are expanding the use of . Tr. 1059. Mr. testified that ’s use of , program, is helping to support ’s and also provides him with a method that is a good match for him. Tr. 1060. Mr. testified that he is working with the school and in the same way he had been last year but with slightly fewer hours because was already in place. Tr. 1063.

Mr. testified that he has spoken with ’s this school year to discuss strategies for helping increase his independence . She confirmed was producing good work as a result. Tr. 1062. Mr. also testified to speaking with Ms. who had seen improvement and believed it was helping with his school work. Tr. 1065.

With respect to his recommendations going forward, Mr. testified that the current supports should be sufficient for the rest of this school year as well as next year, “assuming that he stays in the same school.” Tr. 1065. He also stated that hours per month of services should continue at school with hours every other month of services for , which is more than currently provided. Tr. 1065-66.

On cross-examination, Mr. testified that during his hours a month in class assistance, he works with to see how he’s doing and to provide additional training and coaching. He also works with his teachers to learn about upcoming projects that might require some customization on ’s and also works with his to discuss how is doing with and to brainstorm things to try to help to improve his skills in that area. Tr. 1069. Mr.

also testified that he though should continue to use these programs as they are supporting him but would reconsider their use if it appeared to have the opposite effect.

Tr. 1072. He further testified that he believed for this year required this level of support. Tr. 1075.

’s Parent testified next. The Parent testified that her son was currently in the , class at . Tr. 1090. During the 2013-2014 school year, was in the class at the same school. Tr. 1091. She testified that he has attended for three years beginning in the , in 2012. Tr. 1091. In the 2013-2014 and 2014-15 school years, ’s class included a teacher, and a special education teacher for periods ( , and ). Tr. 1091. The

Parent testified that the Student is diagnosed with . Tr. 1091. The Parent received

Services for at the age of , , including hours of services with Ms. and minutes of , and times a week. Tr. 1094. This was for a few months before entered . Tr. 1095. After this, the Parent testified they started receiving hours of through . Tr. 1095. At age , entered public school. Tr.

1095. The Parent testified that received hours of services through sequential impartial hearing orders, beginning in . Tr. 1096-97. never stopped receiving services as a result of pendency. Tr. 1097.

The Parent next testified as to ’s abilities over time. At the time that started with , at age , he was . Tr. 1098. She recalled making a lot of progress between ages and where he started

. Tr. 1099. The Parent testified that they had to get outside what the Department of Education (DOE) was offering based on the recommendation of their . Tr. 1099. Between and , the program director at , which was very successful. Tr. 1099. The Parent testified that she thought it was important to have these services in the school when started in 2008 because he was making a lot of progress at the time. The Parent explained that all of the services provided through his program were not going to be accessible to in public school because none of his teachers in school were trained. Tr. 1101-1102. The Parent requested services in order for to progress more and catch up with the other students in his classes, however, they did not receive any hours or in school. Tr. 1102. When started he was assigned a , hours of ,

, and . Tr. 1102. The Parent testified that when started school she had to come in to train the . Tr. 1103.

When asked about ’s academics during the 2013-2014 school year, the Parent testified that was able and he needed help . Tr. 1107. At that time, was still

. Tr. 1108.

Although was in the , the Parent took out of from the and he had to at because they did not offer an class in . Tr. 1109. The Parent explained that during the 2013-2014 school year, was not at level for . Tr. 1110. For the 2014-2015 school year, his level improved but was not at level. Tr. 1111. With respect to ’s skills during the 2013-2014 school year, the Parent testified, “ ” Tr. 1111. As a result the mother requested that the school replace the , which they did in September. Tr. 1112.

The first Committee on Special Education (CSE) meeting was held in September 2013 to implement the July 2013 IHO Order. Tr. 1113; P-B. Present at the meeting was the vice principal, the school psychologist, Mr. , ’s and , and the special education teacher. The was not there. Ms.

the attorney and Ms. were present along with the Parent. Tr. 1127. The meeting was held to put the IHO Order in place and put it in an IEP. Tr. 1127. The Parent recalls support for an professional from the teacher and ’s . She stated,

“ ”

The Parent testified that they left the meeting with the idea that an teacher was going to start with on the first day of school, two days after the meeting. Tr. 1130.

The Parent did not receive an IEP when she left that meeting because the District still had to confirm with their supervisor. Tr. 1131. The mother explained her understanding from that meeting was that everybody confirmed Ms. would start services in school the beginning of September but that it took 10 days to process the IEP paper so they first have to communicate with their supervisor and then write the IEP and hand it over. Tr.

1134. The Parent testified that it was not until she spoke to the vice principal in person, that she learned that their supervisor did not suggest an teacher and instead suggested a and that everything would be settled through the lawyers and the DOE. Tr. 1135. They decided over that time to have the professional at school for hours a week to train the teachers and the . Tr. 1136.

No IEP was produced at the September meeting and the school supervisor rejected the recommendation and instead assigned a . Tr. 1139. Ms.

testified that after weeks of communication between her attorney and the District, Ms.

started after the third week of September. Tr. 1140. According to Ms. , the was not applying her training and so Ms. complained and the school replaced the in October. Tr. 1140. The subsequent had experience with kids and could be trained by Ms. . She testified the has an Associate’s degree in education. Tr.1141. The same is still there for this year. Tr.

1142.

The Parent then described the November 2013 IEP meeting. She testified that at this meeting she agreed that the District will perform a full evaluation of D-7; Tr.

1143-44. Present for this meeting was Ms. , Ms. , the school psychologist, Mr.

, the vice principal of special education, , and ’s teachers, Ms. and Ms. . Tr. 1145. The meeting was held to discuss signing the evaluation and implementing the IHO order. The Parent testified that they discussed increasing hours beyond hours, to hours. Tr. 1147. Ex. B. The mother testified that the only people that said that “[ ] needed extra support were the teachers because they knew [ ] better than anybody else.” Tr.

1151. The Parent stated that she never received an official IEP, stating that the District wanted to wait until they completed a full evaluation of Tr. 1151. did, however, receive hours of services and the hours of training of the teachers and started at end of September. Tr. 1154.

The March 23, 2014 IEP meeting was next held to discuss what to do for the 2014- 2015 school year and to review Mr. ’s evaluation. Tr. 1167; P-2. Mr.

discussed the psycho-educational evaluation and in light of ’s scores, “ ” Tr. 1168. The Parent testified that was already sent to a school for the program and placed in a special education class. Tr. 1171. She stated that as a result she witnessed “regression.” Tr. 1170. The

Parent testified that during that time, was placed in the program for only days of the program. Tr. 1173. However, during the 2012-2013 school year, was placed in the program. The Parent testified that the class was ’s level. Tr. 1178.

The Parent testified that she requested a private evaluation, which the District paid for. Tr. 1170. The Parent stated that if they had an option for a private school they would accept that. Mr. recommended deferring to the CBST but it never happened. Tr. 1184. There was also no discussion about additional supports for in his class. Tr. 1181. At this time, the Parent testified that was scoring on a to level and he scored higher on than and .

Tr. 1182. According to the District’s evaluation (Ex. 7), was at a level, was a , a . and for was at a . Tr.118.; D-7. It was unclear to the Parent why Mr. recommended a program but opined that he knew that the special education kids are usually referred [there]

because they are specialized. Tr. 1184. Additional meetings were held with ’s teachers in April and May 2014. The Parent indicated that the teachers disagreed with a placement and thought he was making some progress. Tr. 1185. The teachers recommended a program based on his skills in the report. The Parent strongly opposed thus and she suggested a helping during the school day. Tr. 1186. The special education teacher felt that he specifically needs help with in the classroom. Tr. 1198. The teachers decided needed help in some of his classes so Ms. switched from to

. Tr. 1189.

The next IEP meeting was held in June 2014. Present at the meeting was the Parent, Dr. , Ms. , Ms. , Mr. , and ’s ,

, and as well the vice principal. Tr. 1190. Based on ’s progress, Mr. recommended a class with ’s own . Tr. 1190. The Parent disagreed but testified she would take a look how the looked but preferred that stay in the class because of his progress.

She testified that would benefit more from extra hours and the class and that Ms. and Dr. both noted that his progress was due to the . Tr.

1192. The Parent added that Ms. also thought would be beneficial for Ms. said that as of June that she disagreed with and that should be recommended for a class in the school with a . After this discussion Ms. told the Parent that she thought needed class size. She also indicated to the Parent that he would benefit from a teacher.

Tr. 1194. The only options the Department offered was either a class or a class. Tr. 1195. She stated the District did not have the authority to provide hours. Tr. 1195. The Parent also testified that the District did not refer to CBST because Mr. said that the option was rejected by his supervisor and that had to first go through a before requesting the CBST meeting. Tr. 1196.

According to the Parent’s testimony, for of 2014-2015, was recommended to receive , , and in a program. Tr. 1201. did not attend a 2014 program because all the schools were full or too far away. Tr. 1205. As a result, the Parent stated only received hours of through pendency and did not receive his related services.

Tr. 1202. In the previous summers, received his related services in the schools. Tr. 1203. The Parent rejected the recommendation for placement for the 2014-2015 school year because she believed needed to stay in an class. Tr.

1207. She did, however, visit the program the day after the meeting. Tr. 1206.

In September 2014, the Parent received a private evaluation from Dr.

who recommended stay in program. The mother disagreed with the District’s evaluation. Tr. 1208. The Parent met with Dr. to review the results and they discussed how his scores are than the District’s evaluation. Tr.

1210. The Parent testified that in Dr. ’s opinion, is “a child that doesn’t belong in programs that have kids in the class, and he doesn’t belong in a with all kids with IEPs. He is willing to [be] , and he is willing to , and he’s willing .” Tr. 1210. Dr. ’s recommendation was to keep in an class where he has peers with extra support. Tr. 1211. The Parent stated that the District did not take any steps to implement any part of Dr. ’s recommendations into ’s program. Tr. 1211.

For the 2014-2015 school year, continued in an program with a and hours of training as well as hours of services under pendency. Tr. 1212. She provided the District with Dr. ’s report, however, she said that they have not implemented any of her recommendations this year.

Tr. 1211. She further testified that is progressing in in that he can now and . He is able to . In terms of , he needs and . Tr. 1213-1214 . She stated that as the work becomes more challenging, he needs more . The Parent testified that she spoke with his and that she requested more hours with Ms. . The indicated that he needs the support for his skills, for and for hours. Tr. 1215.

Similarly, the Parent speaks with ’s special education teacher, Ms. from time to time and she indicated that with kids in the class, , but when Ms. is in the classroom, he is . Therefore, the Parent stated that if they had Ms. for to hours a day would make substantial progress. Tr. 1218.

The Parent testified that she received a promotion in doubt letter last year but has not received one yet this year. Tr. 1219. She said at that time Ms. indicated that he needed a lot of support and . Tr. 1220. After the letter, he made progress between March and June. The Parent testified that the teachers have seen that has helped , however, they are not sure if it’s going to fill the gap but it’s going to help him progress. Tr. 1223. She stated that the gap is “ ” She said he needs help but the gap is smaller. Tr.

1224.

According to ’s progress report dated January 16, 2015 (P-II)

puts forth effort into his work and is making progress but that overall he is performing level. Tr. 1225. Yet in some areas is performing level, such as with and some areas of , and . Tr. 1226.

The Parent testified that she believed was entitled to “ ” bridge the gap in what he did not receive in terms of Tr. 1231. This included all the hours and

On cross, the Parent testified that she would like to have additional hours because there is “regression” when he goes back and “he forgets all academic skills…”. Tr. 1253. She would also request hours during the school day because “ ” Tr. 1254. The Parent testified she disagreed with the goals of the IEP because they recommended a and did not include additional hours. Tr. 1261

The Parent’s next witness was Dr. . Dr. is a and Director of the . Her role is to evaluate children with a wide range of , and set up programs for them at the program or working with individuals outside. Tr.

1264. According to Dr. , a minimum of hours of is necessary to make any kind of progress, and that’s …per week. Tr. 1268.

Dr. prepared a report after meeting with , and conducting a exam. She the met with the Parent to discuss a plan. Tr. 1271; P-

HH. Dr. testified that she performed the - rather than a because the District performed a within the same year and did not want to repeat the same exam. Tr. 1274; P-HH. To explain the discrepancy in results between the exam she administered and the District, Dr. testified that they “ ” Tr. 1274. She indicated that these tests are not “

” “ ”

Tr. 1275. Upon further comparison, Dr. testified that she recalled there only being a brief description of

“

” Tr. 1280. She further testified that one would find a different level of functioning scores of a Tr.

1276.

When asked to discuss Dr. referred to the report regarding his skills and stated, “[t]his boy is absolutely educable there’s no question at all about that.” Tr. 1279; P-HH. As a director of a school and a , Dr. testified she would not base a recommendation for a school program for an child solely on testing. “ ” Tr. 1281. She testified based on scoring/testing that reads on a level ( ) but he doesn’t

. Tr. 1282.

Dr. testified that unlike an professional, the is not trained in and doesn’t know how to “

[ ], and he’s never really had that. He’s only had a in school with him.” Tr. 1282. The methodology works in the classroom for Tr. 1283. She testified that needs the “ person. He’s not going to get an person – a person in a class.” Tr. 1286. Dr.

testified, “

” for the to provide the necessary services. Tr.

1287. Dr. stated that “

” Tr. 1289.

Dr. indicated in her report that she would like a program of intervention for in an class. Tr. 1293-94. She stated a is a very restrictive class for Tr. 1295. At the hearing, Dr. recommended that services increase to hours per week. Tr. 1300. Dr. stated she did not observe in his school or meet with any of his teachers. Tr. 1300.

On cross-examination, Dr. indicated that hours per week was the minimum amount of hours you would offer an child across the board. Tr.

1308. Dr. acknowledged that the methodology is the only methodology that promotes and stated, “if you have an in [their] teaching him academically you’re going to kill two birds with one stone. I mean they’re also skilled in facilitation of .” Tr. 1313.

District’s Case

The District called three (3) witnesses, , and , and placed fourteen (14) documents in evidence. D-1-D-14.

The first witness was . He is currently employed by the District as a school psychologist and has his New York State certification in this area.

Tr. 64; Tr. 66. As the school psychologist, he is the IEP team case manager, observes and tests students, meets with parents and service providers and works on strategies to help students in their academic settings. Tr. 65.

He is familiar with because he has been at for several years and he has worked with him, tested him and observed him. Tr. 66. During the 2013-14 school year, was in . Tr. 67. Mr. was familiar with the IHO Order dated July 4, 2013(P-2) and set up a reconvene meeting on September 3, 2015 in order to implement it. Tr. 73. Mr. stated that they used the IEP from June 4, 2013 and revised it. Tr. 74-75. The purpose of the September meeting was to add the requirements of the Order since no new testing had been done. Tr. 76.

Based upon the IHO Order, the District provided the Student with a special education program for the 2013-14 school year. Tr. 78-82; P-2 Mr. stated that the District developed a and for the 2013-14 school year. Tr. 82.

Mr. testified that although the IEP provides for a classroom for the 2013-14 school year, the Parent did not agree with the classroom so the administration accommodated the Parent and placed in an class. Tr. 83-84. Mr.

stated that during the reconvene meeting, the CSE discussed the possibility of assigning a instead of a , however, he indicated that it was an administrative decision and not a decision the team could make.

Tr. 84. Mr. testified that there was no mandated on the IEP except for the hours dictated by the Order which included homework hours and a certain number of hours in school. Tr. 86.

Mr. testified that he conducted a Psycho-educational evaluation of with the help of , the social worker between January and May 2014. D -7.

They used the and the . Tr. 96. His full scale was in the range with a score on which was in the range. With respect to his , his estimated grade level was generally between and . Tr. 96. His score was in where he was in the while in , he was in range. Tr. 96-97. His and were in the level, and his word on a level. His age equivalencies were between and years of age. Tr. 99. Mr.

indicated that is but . Tr. 100. He

also indicated that is a candidate for alternate assessment due to the fact that his abilities were in the range. They also did the and he measured in the range in these (i.e. ,

, , etc,). Tr. 102; D -8.

Mr. also testified that he discussed ’s report (D-

5) with the provider prior to the March 27, 2014 IEP meeting (triennial) and she advised him that is making progress particularly in the and he still has problems with his and . Tr. 107. He stated that the triennial began at the March 27th meeting and continued at the June 24th meeting. Tr. 108. At the March 27th meeting, the was recommended. Tr. 110. The date of the original psycho-educational report was January 29, 2014 so it would be complete for the triennial; however, after the was included, the date was May 23, 2014. Tr. 111. At the March 27, 2014 meeting, placement was discussed. The Parent was vehemently opposed to a placement so CSE suggested deferring the case to CBST. Tr. 112. The

CBST deferral never occurred because Mr. ’s supervisor advised him that he did not have the authority to defer the case and should give a recommendation under the umbrella of the DOE. Tr. 113. Accordingly, a second meeting was scheduled for June 24, 2014 to give closure to the triennial, put all the material together, and make an offer within the DOE’s continuum. Tr. 113. He stated that “the whole area of deferment was no longer on the table”. Tr. 113. The Parent and the advocate (Ms. )

indicated that they disagreed with everything, the IEP, and the testing. Tr. 114. The primary change made at the June meeting as a result of the testing was that would qualify for alternate assessment. Tr. 115. Mr. testified that the June 24, 2014 IEP refers to his and that ’s impedes him from learning in an setting and demonstrating what he knows. Tr. 117. He also said that his . Tr. 117. There is a for the 2014-15 school year but it is not actually part of the IEP. He stated that the is implemented by the and his teacher. Tr. 118. Mr. indicated that the is implemented but there have been changes. First, there was a board and now they are using cards. Tr. 119.

On the June 24, 2014 IEP, the recommendation was for a class in the areas of , , , and in addition to related services. Tr. 120. Mr.

indicated that this program was recommended as a result of speaking to his teachers and related service providers and seeing his progress. He stated that “[ ]

. Also, he is level. The works

. The suggests students, teacher and .

[G.] has his own as well…” Tr. 121. The other programs considered were the and the ; CBST was off the table since the supervisor said it could not be done. Tr. 122.

Mr. testified that the Parent and her team wanted to put on the IEP; however, is a methodology and he stated that it cannot be put on an IEP. Tr.

125. At the end of the meeting, the Parent requested a new evaluation. Tr. 126.

On the FNR dated June 29, 2014 (D-10), which was mailed to the Parent, the FNR states that an class and a in a school were considered and that the reason for the rejection was that needed more instruction to address his educational needs. Tr. 127. Mr. stated that this should not have been on there; it was written at the March meeting and wasn’t changed.

Tr. 127-128; D-10.

On cross examination, Mr. stated that for the June 4, 2013 IEP meeting, he was the psychologist and Ms. , the assistant principal ran the meeting. Tr.

149. The June 4, 2013 IEP was the final IEP and should have been sent to the Parent by the family worker. Tr. 152; Tr. 154; D-11. Mr. stated that the Parent always requested but the first time he remembered a discussion of vs. a teacher was at the September 2013 meeting. Tr. 165. hours were never on the IEP. Tr. 167. Every year they would get hours of by impartial hearing. Tr. 168. Mr. stated that an IEP was developed at the September 3, 2013 IEP meeting based on the IHO Order (P-B) and he remembers seeing it. Tr. 172.

Typically, at an IEP, the district representative takes notes and then after the meeting, the notes are put into the IEP and sent to the Parent. Tr. 174. Mr. reiterated that the purpose of the September 3rd meeting was to put into effect the IHO Order, it was not to create a new IEP. Tr. 182; P-B. Tr. 182. Mr. indicated that the IEP was revised and updated and certain mandates in the IHO Order were put into effect. Tr. 184.

Mr. indicated that only certain people at the September 3, 2013 meeting thought that needed an , it wasn’t everybody on the team that agreed. Tr. 191.

The was put on his IEP each year. Tr. 192. Mr. stated that the issue at the IEP meeting was whether to put a teacher for him specifically in the classroom or have a trained and a teacher to train the and this required administrative approval. Tr. 194. According to Mr. , the did not believe that belonged in an class but didn’t give an opinion on a school. Tr. 202.

Mr. stated that only got related services for the 2014-15 because for him to get instructional support, it would be a program and the Parent won’t send him there. Tr. 215. Mr. testified that the CSE never recommended that he be in an class. Tr. 232. The special education teacher only for and , there is no special education for and .

Tr. 233. Mr. did not recommend for subjects because he thought he needed more than that and so did his teachers. Tr. 234. After the March 2014 IEP meeting, Mr. opened up a CBST deferral document, which is the program used to bring forth information and create the IEP. He opened it up to start putting in materials but was waiting for the social history to be completed. Tr. 342. He did not contact his supervisor (Mrs. ) because he did not know that he needed her permission to defer to CBST. Tr. 343. In order to defer to CBST, the supervisor stated that she would have needed to be consulted before the IEP meeting. When discussing placement recommendations for the June IEP, Mr. testified that was not thriving in the classroom. Tr. 384. He also testified that “a in the classroom is like giving a student his own teacher…it’s not on the continuum of an academic setting and…it is far more restrictive, because the child is isolated from the rest of the classroom by having his own personal teacher”. Tr. 385. Mr. testified that a without the is less restrictive than an with a . Tr. 391. Mr.

stated that “since was entitled to a program, they thought it would be good for him to continue getting academic help in the summer”. Tr. 396. Therefore, they put him in a program in the summer; however, for 2014-15 they did not since the Parent did not want a program so they just gave him related services. Tr.

366. At the June 2014 meeting, they handed the Parent a draft from the March meeting and minor changes were made. Tr. 399. The main change was placing him in a class. Mr. testified that “the reason the was recommended was because the teachers believed he would do well in that setting. It moves a little slower, which needs, and that if he was going to have alternate assessments, that could work. Tr. 401.

He stated that the members of the school team thought that the was the best setting. Tr. 402. Mr. felt a teacher in an class was far too restrictive.

Tr. 401. After the June meeting, Mr. testified that he sent the final draft of the IEP to the Parent with the prior written notice. Tr. 403; D-10; D-2.

A was prepared to begin September 4, 2014. D-14. The teachers and the came up with the target . Tr. 411. He got data from them. Tr.

411. The in evidence is not the actual . Mr. stated that he would have used the data in Exhibit 3, which is a , to create the .

Tr. 417. Mr. stated that the actual and were provided to the Parent with the IEP. They are not Exhibits 3 or 4. Tr. 418. Exhibit 14 is a based on Dr.

Fiorelli’s report and it was included in the final draft of the IEP in November 2014. Tr.

423.

The next witness was . Ms. is a special education teacher with the District. She collaborates and creates IEPs for students, modifies lessons in the classroom, works with small groups, does observations, takes conference notes and collects data. Tr. 496. She works with students classified with , . Tr. 496. Prior to this, she was a teacher with the District. Tr. 496.

She is familiar with because she has been in his class for this year and last year at . Tr. 497. He is presently in the . During the 2013-14 school year, he was in an class. Tr. 497. Ms. was in the classroom for periods a day and she and implemented supports for . She also used to support him with both and ,

, and . Tr. 503. She is there for periods of the during the day, periods and period. There are periods of core subjects and . Tr. 503-504. During 2013-14 school year, had a . Tr. 504. Both Ms. and the received and training.

Ms. was present at the November 13, 2014 IEP meeting. Tr. 506. The services listed were those discussed in the IHO Order. P -B. Although she was not at the September 3, 2013 IEP meeting, she became aware of the IHO Order within the first or second week of school. Tr. 507. The professional was in the classroom once a week for hours. Tr. 509. The professional, Ms. , taught them strategies including the , , ,

, etc. Tr. 509. The school system provided that would , i.e. , , etc. With

. Tr. 512. It was a great support for and he didn’t need it at the end of the year. Tr. 512. There was no until May of 2014 and Ms. was involved with preparing it. Tr. 511.

For the 2013-14 school year, there were students in ’s class.

participated in instruction with and . Tr. 513. At the beginning of the 2013- 14 school year had difficulty and

, , , , ,

, etc. He had difficulty with ,

, and . Tr. 513 – 514; Tr. 515. His deficits were addressed in class by using the strategies provided by the instructor and the programs recommended by Dr. . ’s strengths were in , ,

, and . Ms.

testified that his progressed a great deal during the 2013 -14 school year. The teacher, Ms. and the and all used the same strategies. Tr. 516. Ms. stated that “[ ’s] and his he made great progress with both. He made marginal progress with

”. Tr. 516.

A CSE meeting took place in March 2014 and Ms. attended. She believed it was to discuss testing accommodations for the 2013 -14 school year. Tr. 518. A CBST placement and a placement were discussed. Tr. 519. The reason he was referred to CBST was because the parties couldn’t come to agreement. Tr. 522. The recommendation was objected to and then it was referred to CBST. Tr. 522.

Ms. stated that it ultimately was not referred to CBST. Tr. 523.

Ms. testified that she participated in the June 24, 2014 CSE meeting and specifically worked on his goals. She stated that during the 2013-14 school year, progressed in and made personal progress in . Tr. 525. They used as assessments. improved from to a level. Tr. 527. In , he also progressed in solving with and he was no longer .

Tr. 529. She discussed his goals and needs with his service providers and every week would discuss them with Ms. . At the June meeting, was recommended for a placement in a school. She stated that both Ms. and her co-teacher disagreed with the setting but felt that would do better in their school in a setting. Tr. 530. She did not feel the was appropriate because of

“ ”.

Tr. 530. The Parent disagreed with the placement but agreed to look at the class in their school. Tr. 531. Ms. stated that is a student and receives his related services over the summer. Tr. 531. was promoted to but did not meet his grade expectation however met his goal expectations. Tr. 532.

Ms. is also the special education teacher in his class. Tr.

533. He is receiving his mandated services. Tr. 533. She stated that ’s has improved in that and , . He works but is placed in . is making progress according to his goals and still needs modifications to meet his grade standards. Tr. 537. Ms.

thinks that makes personal gains in the program but would benefit from a classroom where the ratio of students to teachers is less and he will receive more

.

On cross, Ms. testified that she got her special education license in 2002 and that she took some classes on working with students with and has receive training from Ms. , the specialist. At the CSE meeting dated November 12, 2013, Ms. was not present. Ms. testified that they tried to call her. At the meeting, the team agreed that having an teacher in the classroom would be helpful regarding Tr. 547. She knew the was not placed on the IEP but she didn’t remember why. Tr. 549. Ms. testified that if were receiving additional amounts of services, it would be helpful to increase his progress. Tr. 549. She also indicated that made progress in in the class in the 2013-14 school year and marginal progress in . Ms. stated that was evaluated by Mr. last year and that the evaluation stated that his levels and was and he needed assessment and a class. Tr. 551. Ms. also stated that Ms. was helpful to Tr. 549. She stated that during the 2013-14 and 2014 -15 school year would have benefitted from a special education teacher during . Tr. 558. She also said that if had an increase in the kind of training they were receiving in the class, she believed he could remain in the class. Tr. 560.

Ms. testified that in a class they use the same curriculum, however, in the smaller setting, he will receive the , the personalized modification of the instruction to his goals while being aligned with the . Tr. 577. She also indicated that one of the adults in the room is a special education teacher. Tr. 577. She stated that he needs an teacher to make progress but if the special education teacher in the class has training it would be helpful or if he continued to have a trained hours a week, it would be helpful. Tr. 577.

Ms. testified that according to his levels at this time, with his modification, he would qualify for the because he is now in his . Tr. 579. In he just needs a lot of support and in he was at a grade level last year. Tr. 580.

The next witness was . Tr. 596. She was the teacher for in an class for the 2013-14 school year. Tr. 602. There were students in her class and had IEPs. Tr. 606-607. Her responsibilities include instructing and teaching children using the standards; instruction and modifying the curriculum based on student needs. Tr. 603.

She teaches children with IEPs and without. Tr. 603. She has a Master’s degree in and is certified by New York State. Tr. 602.

At the time that was enrolled in her class, she was aware of the IHO Order.

D-B. It was given to her by her administrator. Tr. 605.

Ms. stated that was

. Tr. 607. At times during certain instruction, if it was rigorous for him, he . He worked with his the whole time he was being instructed in the classroom and there was constant communication between Ms. , the special education teacher and the . Tr. 607.

Generally, in the class there is instruction, use of and , , and . Tr. 609. In addition to the foregoing, uses , has a , and uses certain methods to decrease . He participates in instruction. Tr. 611.

At the beginning of the 2013-14 school year, was on a level. He was able to and is now able to . Tr. 611. In

, he has and

. Tr. 612. The standards for that required level of thinking challenged Modifications were made with the to accommodate his needs. Tr. 612. Ms.

worked with him on instruction and Ms. worked with him on instruction. Tr. 613. In the setting, Ms. identified certain strengths. was able to ;

; ;

. Tr. 613. In , he made strides in

.

. Tr. 614.

In terms of his , at the beginning of the year, he would

. Tr. 614.

Towards the middle of the year, they were using strategies to use and and that would help. Tr. 615. When , the would use a with as well as the and . Tr. 615.

Ms. testified that she was aware of the IHO Order (P-B) and that during the 2013-14 school year received his mandated related services and the support of a . Tr. 615. She also testified that she, the , the special education teacher received formal training from Ms. . Tr. 616. They were specifically given strategies to keep him on task. Tr. 616. She stated that the most helpful strategies included the and the to help with the production of work in the classroom. Tr. 617; Tr. 623-24. The District also arranged for the teachers and to receive training with Dr. .

Tr. 617; Tr. 623-24. The training involved introducing them to programs that catered to

’s needs.

Ms. testified that she was at the CSE meeting dated November 12, 2013.

Tr. 622; D-12. She stated that the CSE members discussed ’s academic progress during the meeting, but she didn’t remember the final outcome of the meeting. Tr. 622.

Although the program recommendation was for a program, was in an class. Tr. 625. From her knowledge, this was the recommendation the previous year and the Parent wanted him to stay in the classroom. Tr. 626. The goals on the IEP were prepared by Ms. . Tr. 630. She believes that they were modified from the June IEP. Tr. 630. With respect to the goal on page 7 of Exhibit D-12 regarding and , she stated that this goal was implemented and the student demonstrated progress in that he was able to . Tr. 631-632. She also had input on the goal on page 8 regarding . Tr. 632. She stated that they used the strategies with respect to this. Tr. 632.

Ms. testified that she was also present at the June 24, 2014 IEP meeting.

Tr. 633. With regard to the student’s Present Levels of Performance, the team used assessments, the classroom observations, conference notes, and assessments at the end of each lesson to see if he grasped the skill at hand. Tr. 633.

In terms of ’s , everything was modified and he . Tr. 634. The recommendation for the Student at the June meeting was a class based on his academics and the progress he made during the year. Ms. testified that based on observation, he worked better in and working with the and therefore, she believed the environment of being in a class would have been more successful for The other options considered were and a instruction. Tr. 637. Ms. stated that she does not believe belongs in an class because he thrives when and in the class the lessons are all modified to suit the needs of the children and he is .

Tr. 638. She stated that with students in a class it is difficult for and the skills and modifications he needed are difficult to accomplish in the setting. Tr. 638. At the meeting, the Parent disagreed with the recommendation. Tr. 639. Although ’s personal goals were met, based on the standards, he did not meet grade expectations. Tr. 640. He did, however, make limited progress with regard to the curriculum. Tr. 640. There were areas he was able to accomplish like , yet in he was only able to , . In essence, she stated that his progress is limited based on what is expected from the whole group. Tr. 641.

On cross, Ms. testified that she does not have her Master’s degree in special education nor is she certified in special education. Tr. 644. She stated that in her class there were students with IEPs. Tr. 645. When the class . Tr. 645. Therefore, although Ms. primarily caters to the IEP students and the other students that , the students may be any group in areas where their skill levels are more advanced. Tr. 645. Usually groups are with or students and also had his . Tr. 646-647. She stated that groups comprised a majority of the day since every lesson required instruction afterwards. Tr.

647. Therefore, Ms. was with him for , and . Tr. 647. For

( a week) and ( times a week), Ms. indicated

that she is the only teacher. Tr. 648. Therefore, she is alone with periods a day ( each period). Tr. 648. During those periods, Ms. serves as a teacher for other students. Tr. 649. There were usually or students in ’s group. Tr. 652. Ms. was helpful, as the provider, to provide assistance to during the 2013-14 school year. Tr. 653. Ms. testified that if had a person like Ms. in the classroom, he would “ ”. Tr. 656. She stated that if she were able to have a

“ ”. Tr. 656.

On cross, Ms. indicated that her administrator, Ms. provided her with the IHO Order and told her to review it. P-B. She did not discuss the Order with the staff prior to the November 12, 2013 CSE meeting except Ms. . Tr. 658-659.

Ms. stated that Ms. created the IEP for that meeting, but Ms.

had input. Tr. 659. Ms. stated that at the meeting, she mentioned that she thought a or special education teacher, , in the classroom would be helpful for Tr. 660.

Ms. ’s testified that before the received training, she tried with ’s , however, the training was helpful. She felt that the fact that he was familiar with the strategies from and also knew

Ms. was helpful. Tr. 662. She stated that in the area of , a could not support him in the same way as a special education teacher.

Tr. 663.

At the November CSE meeting, they did not clarify what they meant by a “ ”. Tr. 666. Ms. testified that she did not remember whether the IEP team discussed that it would be helpful for to receive a teacher as opposed to a . Tr. 665. She did recall that both Mr.

and Ms. were unable to agree to a teacher without permission. Tr. 665.

She did say “I remember the idea of [ ] having a was sufficient enough.” Tr. 666. She stated that she “was under the impression that the would fit the qualifications based on number 3[of the IHO Order]”. Tr.

667. This was discussed in terms of a program and she agreed with that placement at the meeting. Tr. 668. She stated that the IEP team discussed the and hoped it would be within the school because they all loved Tr. 669.

For the March 27, 2014 CSE meeting, Ms. attended and had feedback into drafting of that IEP. Tr. 671. She recalled that Mr. recommended that be placed in a school. Tr. 671. She stated that she agreed with this recommendation because it was a specifically special education district. Tr. 671. She stated that the Parent was upset about putting her child in that environment and on a nonprofessional level, she understood her point of view. Tr. 672. Ms. did not recall what happened at the end of the March meeting; she believed the June meeting was a reconvene. Tr. 674.

Ms. stated that was at a level that he had made progress in his and he had made progress . Tr. 677.

She stated that he was recommended for a program despite his progress due to that were evidenced when he wasn’t . Tr. 677. She stated that after the mother voiced her opinion, Ms. wasn’t for the program.

She believed he wouldn’t thrive in that environment but would thrive in , within the school he was familiar with. Tr. 678. She stated that Mr. had more knowledge than her to make the recommendation since he has more knowledge about and what needed and frequently observed in the classroom. Tr. 679.

On his report card, Ms. testified on cross examination that he level standards in several areas like and . P-GG. He also received in several areas; however, his curriculum was modified in these areas. Tr. 687.

On redirect, Ms. testified that when Ms. was not present, the way she addressed the needs of the students with IEPs was by giving instruction. Nothing was modified but she provided more and for those students with IEPs. She also made sure those students were

. Tr. 688.

With , Ms. stated they used and

. Tr. 689. They made

sure he and used when teaching ,

, and . Tr. 689. Also was modified for him. Tr. 689.

Ms. testified that benefitted from the class but she could not gauge progress because all of his instruction was modified. Tr. 691.

Ms. stated that the was there to guide through instruction, and . Tr. 691. She said it is not typical for students in an class to have a special education teacher and that most special education students or students would benefit from a special education teacher in classroom. Tr. 691.Ms. testified that all students in a class have IEPs but they address different needs.

Findings

Two purposes of the IDEA (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C.

1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. Of Educ., 553 F3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent.

Sch. Dist., 346 F3d 377, 381[2d Cir. 2003; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211 at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman v. Parma City Sch. Dist., 550 U.S. 516 , 525-26 [2007]; A.H. v. Dep’t of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. Of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F.

Supp.2d 415, 419 [S.D.N.Y. 2007] aff’d 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see, Rowley, 458 U.S. at 189). The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and …affords the student with an opportunity greater than mere ‘trivial advancement’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v.

Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see, Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir.2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. Of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. Of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

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

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

With respect to the 2013-14 school year, I have reviewed all of the testimony and documentary evidence and find that the District met its burden with respect to FAPE.

For the 2013-14 school year, the placement of was based on IHO Order

13954, originally dated July 12, 2013. Tr. 70; P-B. In accordance with said Order, a reconvene meeting was held on September 3, 2013 in order to implement the Order and on November 12, 2013, another reconvene meeting was held to further discuss and finalize the IEP in accordance with said Order. D-12; P-B. Ms. , a witness for the Parent testified that the reason there was an additional reconvene meeting in November was to give the teachers time to get to know and time to get to know him and see what he was like in school. She did, however, testify that most items were implemented at the beginning of the school year. Tr. 952. It should be noted that a CSE meeting took place on June 4, 2013, and an IEP was developed, however, the District convened a team and revised and updated ’s IEP for the 2013-14 school year based upon the Order. D-

12; P-B. In accordance with the Order, was enrolled in an classroom and received , and , along with a who received and training. He also received an enhanced , an , bus with . Tr. 80.

hours per week of and training were provided to the Student’s teacher and , four hours of Parent training was provided to the Parent in the areas of and techniques. Tr. 82.

It should be noted that with respect to the class, the IHO Order provided “The DOE should offer a special education program in which will receive an appropriate education. The class need not necessarily be an ( ) class.” I credit the testimony of Mr. that the IEP team believed that required a program, but the school accommodated Parent’s request for the class, and kept the Student in the class he had been in. Tr. 84; 668. In fact, in this regard, the November 12, 2013 IEP provides for the class. It is clear from the Parent’s testimony and that of Ms. , and Ms. , Dr. , that they all wanted in an classroom with a special education teacher specifically assigned to him not a . In the IHO Order, it states “In the event that there is a dispute with the parent with regard to the type of class that the IEP team offers for and the Parent files a request for a due process hearing with regard to the type of class offered, placement will be a continuation in the class, the type of class he has been attending…” P-B. This is the reason why during pendency, the Student was placed in an class and not a as agreed by the CSE team at their November 2013 CSE

meeting.

With respect to the , the Order provided “ The DOE shall assign a or professional to be available to work [ ]

individually with as needed. This individual shall be provided with ongoing training in and in the use of , to be arranged by the DOE.” P-B. Mr.

testified that at the reconvene meeting a was considered instead of a . Tr. 84. He also testified that not everyone on the team agreed that a would be appropriate, but the team agreed to go to the administration with this and they determined that it should be a . Tr. 194. Based upon the specific language in the Order, whether the Student was placed in an class or a class was discretionary, as was whether the Student required a or a “ ” and what was meant by that. It should also both the would receive

Therefore, there was no issue in this regard concerning implementation.

In addition to the foregoing, the Order provided “ shall be developed as part of IEP and shall be periodically updated during the course of the school year. An individual with expertise in shall be included in the team that develops the ” P-B.

Mr. , Ms. and Dr. all testified to the creation of the . In fact there is a in evidence as Exhibit D-14 which appears to have been prepared before the November CSE meeting and incorporates the into its plan, which is the system that was being used at that time. In fact, Ms. clearly stated that she taught the teachers how to use the “ ” model for ’s during the 2013-14 school year. Ms. testified that Ms. taught them strategies including the , ,

, , etc. Tr. 509. In addition, in the November 2013 IEP, it states that there is a . D-12. There is, however, confusion in the testimony surrounding whether the was used and when it was created, yet it is clear that that supports and interventions were in place and other strategies to address his .

Furthermore, based on the testimony of Ms. , Ms. , and Ms. , interventions to directly address his were being utilized on an ongoing basis and he was making some progress in those areas as a result. Tr. 509-512; 514-516; 614-

615; 725, 730-733. In addition the interventions were being changed over time due to his progress. Ms. specifically stated that by the end of the year, the was no longer necessary. Tr. 512. In fact, Ms. stated that his “

” “ ” “

” Tr. 570.

Therefore, based on the foregoing, for the 2013-14 school year, the Order was properly implemented and the District met its burden of proof with respect to FAPE.

With respect to the 2014-15 school year, I have reviewed all of the testimonial and documentary evidence and find that the District has failed to meet its burden of proving that it offered a special education program and related services that were reasonably calculated for him to receive educational benefit. The District has not shown that the special education services offered to in the June 24 2014 IEP would have met his unique needs and that he would have received educational benefit.

Procedurally, a CSE meeting was scheduled for March 27th 2014 and a placement recommendation was made at that meeting to defer the case to CBST. Following the meeting, Mr. informed the Parent that the case could not be deferred to CBST because Mr. did not receive supervisor approval before the meeting and is now required to come up with a placement on the continuum. As a result another meeting took place in June and Mr. testified that this CSE was not authorized to defer to CBST. Although all parties participated in the meeting, this action, in essence deprived the parties from participating in the placement decision as authorized by the regulations.

In this regard, the IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child” (20 U.S.C. 1415[b][1]). Based upon the foregoing,

FAPE was not provided for the 2014-15 school year.

In addition to the foregoing, substantively, the District failed to document with any specificity why the program recommended for in the June 24 2014 IEP would meet ’s special education needs. D-2. Although mandated for a class for ,

, , and , the child received pendency and was placed in an class for the 2013-14 and 2014-15 school years at the Parent’s request. With the pendency program in place, services included the class, program for hours a week, a , related services, and other supports, the Student has made minimal progress. Therefore, without the services and other supports, as outlined on the June 24, 2015 IEP, the placement would surely not be appropriate for

D-2.

Based upon the record, the Student’s receipt of ten (10) hours of services are necessary and appropriate as are the consulting teacher services to provide training to the teachers, the and the staff at school. No evidence was provided to justify the diminution of these services which the Student has been receiving for several years and has been receiving educational benefit from. Ms. testified that if the services he receives in school and were decreased, he would regress. In fact, Ms. , Dr.

, Dr. and the Parent spoke to the increase of these services. Therefore, the removal of these services would be without merit. They indicated that the services are necessary to support his learning in school and the collaboration between and the school is important for his progress.

The Parent asserts that methodology is appropriate for this student and should have been listed on his IEP. Generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher (Rowley, 458 U.S. at 204; M.M. v.

Sch. Bd. of Miami-Dade County, 437 F.3d 1085, 1102 [11th Cir. 2006]; Lachman v.

Illinois State Bd. of Educ., 852 F.2d 290, 297 [7th Cir. 1988]; Application of the Bd. of Educ., Appeal No. 11-058; Application of the Bd. of Educ., Appeal No. 11-007;

Application of a Student with a Disability, Appeal No. 10-056; Application of the Dep't of Educ., Appeal No. 08-075; Application of a Child with a Disability, Appeal No. 07-

065; Application of a Child with a Disability, Appeal No. 07-054; Application of a Child with a Disability, Appeal No. 07-052; Application of a Child with a Disability, Appeal No. 06-022; Application of a Child with a Disability, Appeal No. 05-053). In this particular circumstance, however, the evidence indicates that the use of the methodology is important for this child and is needed to help him at this time with his . Due to the continued need for the provider to provide training to the teacher and and the continued need for services, this methodology should be listed on his IEP for these purposes. There is no indication that this is the only appropriate methodology for this student, accordingly, it should not exclude the introduction of other methodologies that the teacher deems appropriate to meet this child’s needs.

In addition, the Student continues to benefit from the support he is presently receiving. No evidence was provided to indicate that these services should be decreased or removed. In fact the testimony indicates that he is continuing to receive academic benefit from these services in school and .

It is clear from the testimony of all parties that the Student needs more support than he is currently getting in an class with a , hours of services, related services and other supports and services. Ms. indicated that he made progress but needed more support in the classroom ( to more hours a day) and ( to more hours a week) in order to work on and . Tr. 753. Dr, testified that based on her observation, would need a professional throughout the day and hours of services. Tr. 1286; tr. 1308. Her teacher, Ms. testified that he would be more successful in a class (Tr. 637) and Ms. felt he would do better in a

Setting. Tr. 530. In looking at the placement as opposed to an class, Mr.

, the school psychologist that has worked with, observed, and tested the Student over the last few years stated that the recommendation for a class is appropriate since becomes , and the class is and , which is important for Tr. 121; Tr. 401. Although there was a discrepancy between his Psycho-educational testing and that of Dr. , the CSE did not base their determination for a class on this, but took into account all factors. Tr. 120-122. Mr. stated that the other members of the school team including the teachers and the thought that the classroom was the best setting for Ms. specifically stated that he does not belong in an class because of the number of students in the class, the pace and the need for more and that he . Tr. 531; Tr. 537; Tr.

638. Ms. testified that a class would provide him with a special education teacher; would allow him access to the same curriculum ; would be modified to meet his goals in a setting where he would receive more . Tr. 577. Ms. also indicated that he continued to benefit the training from the supervisor two times a week and the hours. Tr. 577

Mr. indicated that ’s impedes him from learning and impedes his peers from learning. Tr. 117. Dr. indicated that he needed to have his own special education teacher in the classroom because he needs someone who can effectively intervene for a student who has in the classroom. Tr. 828.

Ms. testified that although of ’s strengths is his interest in , due to issues he wasn’t accessing his education and there was an increasing gap in ’s . Tr. 926. She also stated that she would not characterize his progress as “meaningful”. 1030. Ms. indicated he has made limited progress and has not met expectations in his class. Tr. 640. Ms has noted progress but has only seen “marginal” progress in . Tr. 516. Ms. stated that he would qualify for the class because . Tr. 579. On his June 2014 IEP it indicates that he is at a instructional level for and a instructional level for . D-2. On his Progress Report for the 2013-14 school year, he received ones (Far level standards) in , and and (does not meet level standards) in and for his final grades. P-G. Even the Parent indicated that the gap is large and he needs a lot of academic support. Tr. 1223-1224. In this regard, Ms. testified that although is making some progress, it is hard to gauge whether the gap is getting smaller because the other kids are also making progress. Tr. 1006. Although Dr. and Dr. are experts in their field, Dr. acknowledged that her report was nearly two years old and she did not have any current information regarding ’s performance in school other than what Ms. told her (Tr. 854) and Dr. had never observed in school nor met with any of his teachers. Tr. 1300. Therefore, I credit the testimony of his teachers with respect to placement and progress since Ms. has been in the classroom with him for two years (2013-14 and 2014-15) and Ms. for one year

(2013-14). In addition, Mr. has had an active role in observing, testing, and working with over the past few years.

State regulations provide that a placement is intended for students "

" (8 NYCRR 200.6 ). Management needs are defined by State regulation as "

" (8 NYCRR

200.1[ww][3][i][d]). Despite the Parent’s assertion that the student required an class with a special education teacher trained in , a review of the hearing record demonstrates that the recommended placement in a in a school with his own with other support services would enable the student to receive educational benefit.

It is clear that the Parent wanted the Student to have a special education teacher with him all day in an class instead of a in a class. Ms. , the student’s teacher indicated that although it would be helpful for to have a special education teacher working with him, it would be helpful for any type of student to have such a teacher. Tr. 656. The IDEA ensures an “appropriate”education, “not one that provides everything that might be thought desirable by loving parents” (Walczak, 142 F.2d at 132, quoting Tucker v. Bay

Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted], see Grim, 346 F.3d at 379). Although Dr. felt that an class would be helpful for the , as did Ms. and Ms. , he was not receiving appropriate academic benefit from being in that class, and his teachers and the school psychologist who observed him on a daily basis, agreed with this. This does not negate the fact that he needs to be educated to the maximum extent possible and be given opportunities for in programs in his school with nondisabled students to the maximum extent appropriate.

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

LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR

200.1[cc], 200.6[a][1]; see Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 [2d Cir. 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2012];

Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 [2d Cir. 1998]; Patskin v.

Bd. of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the regular education environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (20 U.S.C. § 1412[a][5][A]; see 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.6[a][1]; Newington, 546 F.3d at 112, 120-21; Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993]; J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008]; Patskin, 583 F. Supp. 2d at 430; Watson v. Kingston City Sch. Dist., 325 F. Supp.

2d 141, 144 [N.D.N.Y. 2004]; Mavis v. Sobol, 839 F. Supp. 968, 982 [N.D.N.Y. 1993]).

The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home" (8 NYCRR 200.1[cc]; 8 NYCRR 200.4[d][4][ii][b]; see 34 CFR 300.116). Consideration is also given to any potential harmful effect on students or on the quality of services that they need (34 CFR

300.116[d]; 8 NYCRR 200.4[d][4][ii][c]). Federal and State regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services (34 CFR

300.115; 8 NYCRR 200.6). The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement (34 CFR 300.115[b]).

To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1)

whether education in a regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate (Newington, 546 F.3d at 119-20; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-

50 [5th Cir. 1989]).

A determination regarding the first prong (whether a student with a disability can be educated satisfactorily in a regular class with supplementary aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class" (Newington, 546 F.3d at 120; see North Colonie, 586 F. Supp. 2d at 82; Patskin, 583 F. Supp. 2d at 430; see also Oberti, 995 F.2d at 1217-18; Daniel R.R., 874 F.2d at 1048-50). The Court recognized the tension that occurs at times between the objective of having a district provide an education suited to a student's particular needs and the objective of educating that student with nondisabled peers as much as circumstances allow (Newington, 546 F.3d at 119, citing Daniel R.R., 874 F.2d at 1044). The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student's condition and the school's particular efforts to accommodate it (Newington, 546 F.3d at 120).9 If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from a regular classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate (Newington, 546 F.3d at 120).

The teachers, Ms. and Ms. indicated that although they felt justified in removing him from the class, they felt that keeping him in a school instead of a program would allow the student to be included with to the maximum extent appropriate. It is understood by all parties how important it is for the Student to be , and the progress he has made in this area, however all of the parties that testified also agree that he requires . The program will provide him with classroom, , with a special education teacher in the room, in addition to his . Mr. testified that “a in the classroom is like giving a student his own teacher…it’s not on the continuum of an academic setting and…it is far more restrictive , because the child is isolated from the rest of the classroom by

.” Tr. 385. The Parent’s request for an class with a special education teacher for the 2014-15 school year is too restrictive and was not appropriate for this child due to the need to place him in an environment which is reasonably calculated to enable to obtain meaningful educational benefit in the least restrictive environment.

Another support that was left off of the June 2014 IEP was parent training and services. State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate (8 NYCRR

200.4[d][2][v][b][5]). State regulations further provide for the provision of parent and training for the purpose of enabling parents of students with to perform appropriate follow-up intervention activities (8 NYCRR 20 200.13[d]).

Parent counseling and training is defined as: "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program" (8 NYCRR 200.1[kk]).

However, Courts have held that a failure to include parent training and counseling on an IEP does not constitute a denial of FAPE where a school provided "comprehensive parent training component" that satisfied the requirements of the State regulation (see M.N. v.

New York City Dep't of Educ., 700 F. Supp. 2d 356, 368 [S.D.N.Y. March 25, 2010], or where the district was not unwilling to provide such services at a later date (see M.M., 583 F. Supp. 2d at 509 [S.D.N.Y. 2008]; but c.f., R.K. v. New York City Dep't of Educ., 2011 WL 1131492, at *21 [E.D.N.Y. Jan. 21, 2011] adopted at 2011 WL 1131522

[E.D.N.Y. Mar. 28, 2011]). In the instant matter, the provision of parent training and counseling was not included in the June 24th IEP and should have been since the testimony indicates that the Parent requires training and counseling and the school does not have its own comprehensive training program.

With respect to Parent’s request for compensatory services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]).

Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v.

Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005]

[finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be 8 reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v.

Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]

[holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

In the instant matter, the Student was receiving a program under pendency including the hours of services, parent training, training for ’s teachers and in and , and other supports and services.

Accordingly, although there was a denial of FAPE, there is no need for “make up” services in this circumstance.

Although a program was included on the June 24, 2014 IEP, the Student was only provided with his related services for the . In this circumstance, based on the testimony regarding regression, it is important that continue to receive his hours of services to meet ’s needs in the areas where he is expected to experience regression.

Based upon the foregoing, the District did not provide FAPE to for the 2014-

15 school year and shall be entitled to the program and services set forth in the order below.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that within two weeks of receipt of this order the CSE shall convene and revise and update ’s IEP for the 2014-15 school year as follows:

1. The Student shall be placed in a class: for , times per week, for a period each time; for , times per week, for a period each time; for , times per week, for a period each time; and for , times per week for a period each time for the remainder of the 2014-15 school year.

2. For related services, the Student shall receive the following: ,

, times per week for each time; , , time

per week for each time; , , time per week for each time; , , time per week for each time; - , , times per week for each time; and - , , times per week for each time.

3. The District shall assign a to to be available to work with him throughout the day. The and the Student’s teachers shall be provided with ongoing training in and in the use of as set forth in paragraphs 4 and 5 herein.

4. The training in shall be provided to ’s teacher and on a weekly basis and shall be carried out by an individual with credentials and experience to demonstrate their proficiency in . The amount of such training shall be at least hours per week.

5. The training in shall be provided to ’s teachers and as needed but no more than hours per month and shall be carried out by an individual with credentials and experience to demonstrate their proficiency in . The District shall continue to provide with a and the specialist shall continue to update the materials and devices needed by , in collaboration with his teachers, and related service providers.

6. The District shall provide the Parents with Parent training for hours per month in the areas of , techniques including , and other areas that are needed. The parent training shall be conducted by professionals with expertise in these areas.

7. The District shall continue to provide services for a minimum of hours per week.

8. An and a shall be developed as part of ’s IEP and shall be periodically updated during the course of the school year. An individual with expertise in shall be included in the team that develops the .

9. The Student shall receive a program for the 2014-15 school year. For the summer of 2015, the Student shall receive all of his related services set forth in paragraph 2 herein and shall continue to receive services for a minimum of hours per week for the to meet ’s needs in the areas where he is expected to experience regression.

10. transportation with . With respect to the 2015-16 school year, the CSE shall convene in order to create an IEP appropriate for said year. Dated: June 5, 2015 Corrected Date: June 17, 2015 (Correction Made to evidence list)

ELISE KESTENBAUM, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period. ” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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

DOCUMENTATION ENTERED INTO THE RECORD

District’s Exhibits

No. Date Document Pages

1. 7/15/2014 Impartial Hearing Request 18

2. 6/24/2014 IEP 27

3. 6/4/2014 ( ) 2

4. 2014/15 ( )

5. 3/20/2014 - Evaluation 2

6. 3/27/2014 and Report 2

7. 5/23/2014 Psycho-educational Evaluation Report 8

8. 5/2/2014 Report 9

9. 3/27/2014 Annual Review Plan 3

10. 6/29/2014 Prior Written Notice 4

11. 6/4/2014 IEP 24

12. 11/12/2013 IEP 29

13. 11/12/2013 Classroom Observation 1

14. 10/2/2013 1

Parents’ Exhibits

A. 7/15/2014 Impartial Hearing Request 18

B. 7/4/2013 Second

C. 6/5/2012 IEP 15

D. 11/4/2010

E. 6/14/201 IEP 14

F. 10/10/2014 Progress Report 1

G. 6/20/2014 Report Card 2

H. VOID

I. VOID

J. VOID

K. VOID

L. VOID

M. VOID

N. VOID

O. VOID

P. VOID

Q. VOID

R. 11/15/2013 Progress Report 4

S. 1/3/2012

T. 3/15/2014 Progress Report 4

U. 6/3/2013 Progress Report 4

V. VOID

W. VOID

X. 4/19/2013 Evaluation 12

Y. 1/26/2013 Dr. – Evaluation 5

Z. 2/20/2013 Dr. Program Review

& Recommendations Report 10

AA. undated District Programs 2

BB. 5/15/2014 3

CC. 2/26/2014 CBST Memo 1

DD. undated CBST Guidelines 1

EE. undated DoE Report 26

FF. misc. dates SEISIS Logs 6

GG. 2013 – 14 Final Report Card 2

HH. 10/16/2014 Psycho-educational Evaluation 12

II. 1/16/2015 Progress Report 2

JJ. misc. dates E-mails between Parent’s Counsel and

Implementation Unit 1

Impartial Hearing Officer’s Exhibits

No. Date Document Pages

I. Undated Subpoena 1

II. 10/31/14 District’s Objections to Subpoena 2

III. 11/10/14 Revised Subpoena 1

IV. 10/7/14 Order on Pendency 5 V 3/13/14 NYC Department of Education

Closing Brief 26

VI 3/13/14 Parent’s Closing Statement and

Memorandum of Law 29

VII Misc Dates. Compliance Decisions 9

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Footnotes

[1] The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted. (Tr. 20 ;259;586;1078; IHO-IV ).