Northport-East Northport Union Free School District, Impartial Hearing Decision

IN THE MATTER OF THE IMPARTIAL

HEARING OF. ___ BY ____

SED Case No.: 503675

PETITIONERS,

V. DECISION

Northport-East Northport union free school district,

RESPONDENT

DECISION

Appearances: Thivierge & Rothberg, PC Gaines, Attorneys for Petitioner by Christina

D. Thivierge, Esq. Ingerman and Smith, LLP Attorneys for the Respondent by Christopher Venator, Esq.

On May 4, 2017 the parent of _____(“Petitioner”) filed this request for an impartial hearing against the Northport- East Northport Union Free School District (“ District”) pursuant to 34 CFR §§300.507, 300.508, 8NYCRR §200.5(i) and 200.5(j). _____ is currently 11 years old and has been diagnosed as having Pervasive Development Disorder (“ PDD-NOS” ) . _____ has been classified as Other Health Impaired. At the time of the impartial hearing _____ was attending fifth grade at the Vincent Smith School. The petitioner alleges the District failed to provide _____ a free and appropriate public education (“FAPE”) by recommending _____ remain in a 12:1:1 placement for the 2016- 2017 school year. The petitioner claims this placement was not appropriate because the class setting was too large. Accordingly the petitioner unilaterally placed _____ in the Vincent Smith School after the District recommended to continue _____ in the 12:1:1 class at the Pulaski Road School. The petitioner seeks as a remedy prospective tuition payments, reimbursement, compensatory and remedial relief.

The District placed _____ in a 12:1:1 program at the Pulaski Road School during the 2015-2016 school year. The District asserts _____ made good academic progress in all areas. during fourth grade in the 12:1:1 program at Pulaski.

FACTS

Ms. _____ the mother of _____ testified that she noticed speech delays in _____ when he was nine months old. Due to these delays Ms. _____ had _____ evaluated. When _____ was two years old he was identified as being on the Autism spectrum Disorder. He received Early Intervention services and attended pre-school at the Building Blocks Program. In 2011 _____ aged out of early intervention he entered the Pulaski school where he was enrolled in a full day special education kindergarten class. The Committee on Special Education (“CSE”) classified _____ as being other health impaired. _____ was enrolled in a full time special education program and received speech, and occupational therapy (“OT”). 1 _____ continued in a 12:1:1 self contained class for first, second, third, and fourth grades.

Martha J. White, is the school psychologist at the Pulaski school. Dr. White testified she has known _____ since kindergarten when he transitioned from the pre school program. She has observed him many times in the self-contained classroom , worked with him “via” the classroom teacher , did his reevaluation and chaired the Committee on Special Education (“CSE”) meetings during his annual reviews. ( Tr. 14) Dr. White administered the Wechsler Preschool and Primary Scale Intelligence (“WPPSI”) cognitive assessment to _____ in April 2011 when he was entering kindergarten. At that time _____’s verbal skills were within the average range (25%), but his nonverbal reasoning skills were well below average, (6%). Overall _____’s cognitive abilities were in the low average range (10%).

On February 10, 2014 Dr. White conducted a psychological evaluation administering the Wechsler Intelligence Scale for Children – Fourth Edition (“WISC-IV”). The Full Scale

_____ did not receive OT services during the 2013-2014 school year because the District was not able to the prescription from the family.

IQ (“FSIQ”) is derived from a combination of ten subtest score. _____’s FSIQ score was 94 , and his general cognitive ability is within the average range (34%) of intellectual functioning measured by the FSIQ. In 2011 full scale score on the WPPSI which measures basic skills was 81 . _____’s verbal comprehension (55%) , and perceptional reasoning skills (55%) were in the average. The verbal comprehension index measures verbal reasoning and concept formation.

_____’s performance on the verbal subtests demonstrates various verbal abilities. He performs better on verbal skills. _____’s has a good vocabulary and his strengths were his verbal skills and abstract reasoning. _____ performed best on the Vocabulary and Similarities subtests, out performing most students in is age . These subtests required _____ to explain the meaning of words in isolation, demonstrating word knowledge, verbal comprehension, an ability to verbalize meaningful concepts and retrieve information from long-term memory . _____ scored 13 on the Vocabulary scaled score. On the Similarities subtest _____ was required to orally explain how word pairs were similar examining _____’s ability to abstract meaningful concepts and relationships from material verbally presented. _____’s Similarities scaled score of 14. (Dis_____ Exh. 2)

_____ showed a significant deficit in working memory (6%). _____’s ability to sustain attention , concentrate, and exert mental control is in the borderline range and a weakness relative to his nonverbal and verbal reasoning abilities. (Tr. 24-25)

Comprehension is also an area of weakness for _____ The Comprehension subtest provides a general measure of verbal reasoning, and _____’s ability to understand social situations, social judgments and knowledge of conventional standards of social behavior. _____ struggles with abstract language skills. _____ was required to provide verbal solutions to everyday problems and to explain reasons for social rules and concepts. _____’s Comprehension scaled score was a 5. Dr. White stated _____ struggles with abstract language skills.

Academic testing of _____ was conducted by Mara Wilson _____’s second grade teacher. She used the Kaufman Test of Educational Achievement , Second Edition (“KTEA-II) to measure _____’s academic achievement. Dr. White testified regarding the results of this test. She indicated _____’s reading skills were within the average range. His reading composite score was in the 79 percentile. _____ scored within the 21 percentile in the Written Language Composite which was average. _____ showed extreme deficiencies in math. His math composite score was in 2 percentile, which is the lower extreme. _____ was in a 12:1:1 class in second grade and it was recommended that he continue in this placement in third grade.

Ms. Myung was a special education teacher at Pulaski Road during the 2015-2016 school year. She was assigned the fourth and fifth grade self-contained 12:1:1 class. There were ten students in the class. _____ was one of her fourth grade students during the 2015-2016 academic year. Ms. Myung stated academics were difficult for _____ She described _____ as having focus issues. She said he moved around the classroom a lot , he would focus on other things not his work. To address _____’s focus issues Ms. Myung indicated she had a standing desk with a fidget bar in the class where _____ would be permitted to go whenever he felt the need. There was also a trapezoid desk that could be lowered to the floor with a cushion he could kneel or sit at the sea_____ Ms. Myung said she also used a smart board and would pull up different websites based on the curriculum. _____ found the ability to interact with the smart board and visualize the content interesting which helped him to maintain focus. The students worked in small groups, where _____ received one on one attention.

Ms. Myung testified regarding _____’s progress and meeting the goals set forth for him on the IEP. The first reading goal for _____ was when presented with information or text, _____ will be able to answer why questions, make inferences, predictions and make corrections. Ms. Myung worked with _____ to develop inference skills with isolated tasks and using shorter text used highlighting skills to find information in tex_____ According to Ms. Myung _____ achieved his goal.

_____’s second reading goal was to be able to identify connections, narratives poetry , drama to other texts ideas, perspectives personal events and situations when presented with third grade level text from content area subjects. ( Dist. Exh. 10 ) _____ made gradual progress. _____ is very auditory, Ms. Myung would use audio tapes so _____ could listen to the lesson. ( Tr. 92) _____ is more successful when he listens to a story. _____ can read text and decodes better when reading. However, ____ often reads fast, skipping over words, resulting in a loss of content. Myung worked on developing _____’s comprehension by having _____ slow down, breathe, and stop at punctuation marks. _____ requires constant refocusing and redirection. _____ is a successful reader when focused. Ms. Myung concluded _____ met this goal.

Writing was not one of _____’s favorite subject _____ He had a difficult time gathering his ideas and writing them down. _____’s first writing goal was to write a complete sentence that included an example or detail. Ms. Myung worked with _____ on pre-writing skills using color coded cards and a notebook. She worked with the _____ on setting up his notebook where he would reflect what he was thinking on the left side based on the information on the card. _____ would have adult assistance on how to turn his ideas to sentences, then build the sentences into paragraphs. Ms. Myung utilized the writing A-Z online program for the smart board. ( Tr. 95) In the beginning of the year _____ would get upset if he had to write more than one or two sentences. By the end of the year _____ was able to reach his goal to write a full sentence when prompted and reminded to stay on task. _____ needed a lot of teacher support, and was not able to function independently. (Tr. 41 and 51)

Goal three required _____ to write a complete sentence that includes an example or details. In the beginning of the school year _____ would get very frustrated when he had to write more than one or two sentences. By the completion of the school year he was able to reach his goal with prompting. Goal four was for _____ to edit and revise and strengthen writing with moderate assistance. Similar to the other goals, _____ met the goal by being able to successfully edit short text with frequent refocusing and direction. _____ also worked better with editing using a computer.

_____ also demonstrated deficiencies in math. _____ could remember math facts, but it was a struggle for him to maintain his focus and be able to extract key details or information to solve problems. (Tr. 98) Ms. Myung worked with _____ on how to highlight key words, to understand the questions. They also worked on multiplication facts throughout the year. _____ was able to solve multiplication problems within 100 which was the fifth goal. _____ was able to memorize most of his multiplication facts and successfully us a multiplication chart _____ _____ still relied on adult supervision to stay on task. ( Exh. 10)

The other math goal, six, was for _____ to solve two-step problems using addition, and subtraction. _____ was able to achieve this goal by memorizing math facts, using the multiplication chart and adult intervention to keep him focused.

_____’s social/ emotional/ behavioral goal was to express a negative emotion at school (e.g frustration, anger, anxiety, sadness, impulsivity and use a coping mechanism ( perspective-taking, assertive- communication, deep breathing, problem –solving, planned positive activities appropriately ) to maintain acceptable school behavior. _____ wanted to succeed and he wanted approval and praise knowing he was doing right _____ was very sensitive and was hard on himself. _____ was a hard worker, but his focus difficulties created challenges for _____ in academic areas. _____’s progress in this area was inconsistent, and he continued to struggle with self-control. Little noises or changes added to _____’s stress and his behaviors were outside of his self control. _____ was not able to obtain this goal. ( Tr. 100, Exh. 10)

Although _____ was able to obtain most goals set forth on his IEP, Ms. Myung admitted _____ was not academically on grade level. _____’s report, District Exhibit 11 states in most categories that _____ did not demonstrate knowledge and understand grade level concepts. _____ required support 2 _____ made slow progress because of his

_____ scored Level 1 , well below proficiency on the state-wide exams in English Language Arts (“ELA”) and math, and demonstrated a minimal understanding of science.

impulsivity. He performed better when focused, and _____ tried to use the strategies worked on in class to address his impulsivity and anxiety. _____ was a little more nervous at the end of the year. _____ mind would wander and it took him longer to get through the material. _____ did not receive counseling for his emotional issues, because Ms. Myung would handle the situation in the moment when _____ could relate to what happened as opposed to counseling once a week either individually or in a group. (Tr. 113)

_____’s reading was a year and a half below grade level as of January 2016. He always read out loud, and it is extremely challenging for _____ to read silently. His strength is decoding and the ability to read with the appropriate intonation. _____ has problem with comprehension since he has a tendency to read very quickly and skip words. He is able to answer literal questions about the text but has difficulty responding to questions that go beyond the text raising inferences about the text _____ has delayed in receptive, expressive, and pragmatic skills and mathematics.

In mathematics, _____ understands place value through the hundred thousands, and can add and subtract multiple digit numbers. _____ was working on 2- digit multiplication and long division . _____ has memorized most of his multiplication facts.

On May 2, 2016 the District conducted an annual review of _____ The CSE included Martha White, District Chairperson, Dawn Myung, Special Education Teacher, and Ruth Gaines, Speech Therapist_____ District recommended that _____ continue in the special class, 12:1:1, with individual occupational therapy once a week, to address _____’s fine motor delays , speech and language therapy twice a week in a small group and parent counseling/ training once a month. Ms. White opined _____ was making nice progress with a small group, eight students.

The IEP developed for _____ forth, fifth grade continued the services _____ was receiving in the fourth grade but did not include a goal to address _____’s social emotional needs. Ms. Myung testified that the CSE considered including a goal for _____’s social emotional issues but concluded _____ responded better while working on responses to situations as they occurred on a daily basis in the classroom with students with similar emotional or social concerns. ( Tr. 121)

The CSE concluded that _____ had a varied cognitive profile according to the WISC-IV. The IEP stated _____’s verbal and non-verbal reasoning skills were within the average range. He has significant weakness in his working memory which impacts his ability to listen to, hold on to, and manipulate information processed aurally or through hearing. _____ has difficulty staying on task and cannot work independently because of his need to be refocused and redirected to tasks. _____ works better in a small group and on a one-to-one basis.

Ms. _____ attended the CSE meeting where the IEP for _____ was developed. She testified that during the meeting the CSE discussed the goals for _____ for the 2016-2017 school year. Ms. _____ stated the CSE recommended a 12:1 class, which is the same program recommended in prior years. Ms. _____ stated nothing changed, most of the things remained the same, the CSE just added a few goals. ( Tr. 428) _____ has shown no signs of improvement . Ms. _____ testified that _____ is not able to write, he reads a book but does not understand what he has read. She indicated they were moving him from grade to grade notwithstanding that _____ couldn’t count, read or write. (Tr. 432) Ms. _____ had concerns about this placement because of the mixture of high and low functioning students. She indicated that _____ had started mimicking some of the behaviors of some of the students in his class and had started to act out at home. _____ struggled doing homework and would cry. _____ did not understand the school work and was frustrated with Ms. _____ when she tried to was help him do homework. Ms. _____ discussed these behaviors with the CSE and that she needed help with _____ since she was not a teacher. ( Tr. 451) The CSE recommended parent counseling training for Ms. _____ 3 Ms. _____ concluded _____ needed more help, and decided to look around.

3 Ms. T testified that she went to Ms. Weiss to explain _____ did not understand, he is frustrated with her. She explained she is not a teacher, she is a mom and needed help. Ms. _____ discovered the Vincent Smith School online, read about the school, and went to visit it in the summer 2016. Ms. _____ selected the Vincent Smith School because of the small class size , and the services the school provides . She opined because of the student class ratio _____ could get the help he needed. I He was accepted to the school after he after Mr. Baldi and the admissions committee reviewed the IEP and other documents submitted by _____’s mother, interviewed _____ and evaluated him in August 2016. Mr. Baldi testified they showed _____ around the school and they realized after about an hour and a half of seeing _____ they knew he would be a good fit in the class. “ There were a few kids we knew were coming , and we thought he would be a good match socially, emotionally, and academically for those kids.” (Tr. 198) _____ was distractible and the other boys matched his profile. _____ needed a small classroom where he was able to receive individualized instruction. _____ was again assigned to Ms. Myung’s class for fifth grade. There were seven students in the fifth grade class. _____ was in this class for a month during the 2016-2017 year before he transferred to the Vincent Smith School October 5, 2016.

John Baldi, the head of the Vincent Smith School testified regarding the school. Mr. Baldi stated Vincent Smith School is a small independent tuition based school for grades 1 through 12. The tuition at the Vincent Smith School is $46,750 per year and the school offers the same diploma offered by other independent schools. It is a special needs school serving students with a variety of disabilities including learning disability, ADHD, children on the autism spectrum and students with receptive-expressive language disorders. The school’s mission statement is it is okay to learn differently, and the school provides a small nurturing environment and supportive classroom of no more than four students. The school provides individualized instruction and attention to children that are easily distracted and needs redirection. The Vincent Smith School provides a full academic curriculum with all the major subject areas and related services. The school has, in addition to subject matter teachers, a school psychologist, social worker,

She indicated they didn’t understand her and recommended parent counseling like she had the problem. counselor, occupational therapist, two reading and speech teachers . Staff at the Vincent Smith School must have special education certification 4, and certification in their content area.

Lois Dierlam is the Dean of Students at the Vincent Smith School. She testified regarding the curriculum used at the Vincent Smith School and _____’s program at the school. She indicated the school uses a writing curriculum, STEP Up to Writing which is a research based program, SPIRE for reading which is an Orton-Gillingham based program, and Jump Math. All of these programs are multisensory and researched based. Currently there are 50 students enrolled in the school. The lower school class size is no larger than four students, the upper school class size can not exceed eight students. The students in the lower school have SPIRE reading, another reading program, math, writing, science, and social studies. The students also have physical education, computer, art and music. There are nine, forty minute periods with the ninth period for clubs, such as robotics, legos and woodworking. All students take social skills class once a week. The social skills class focuses on learning about empathy, self-advocacy, right things versus wrong things, bullying, autism, and situations that may have come up in school. ( Tr. 232- 236) Ms. Dierlam was questioned whether _____ could focus in a class with six students. She stated _____ has difficulty focusing with three students in the class and it would be difficult in a bigger class. (Tr. 248)

_____’s biggest deficits were his distractibility and difficulty focusing, and reading comprehension. _____ worked with SPIRE everyday, and he worked with the Harcourt reading program, and Step Up to Writing. The SPIRE program has a major comprehension component . Ms. Mulvehill the reading teacher worked with Ms. Gensch _____’s teacher regarding reading and comprehension strategies. _____ progressed regarding decoding, but continued to struggle with comprehension. _____ was beginning to read longer paragraphs and answer questions about them. As for writing, _____ made

The art teacher and one other teacher are not certified special education teachers.( Tr. 218)

some improvement from the beginning to the end of the year. _____ would write quick sentences in the beginning of the year. By the end of the year _____ started using a graphic organizer which enabled him to brainstorm then write the details in the graphic organizer. _____ is still working on adding details when he writes.

_____ had math everyday. _____ was good at following math when there was a specific rule but struggles but he with concepts. _____ was able to add and subtract slowly. He worked with Jump Math program, the lessons gradually build on each other. _____ was able to understand perimeter and time. _____ had science and social studies every other day, speech therapy three times a week, and OT once a week. He also had art, gym, music and computers. _____ did not like music because of the noise made by the instruments, but he was able to remain in the class. _____ participated in gym.

_____ gets anxious and overwhelmed even in a small group. He has difficulty focusing in a class with three students. _____ needs to be redirected frequently. Ms. Dierlam opined that the teacher would have a difficult time keeping _____ focused in a larger class. The Dean worked with Ms. Gensch to address his anxiety issues. Ms. Dierlam and Ms. Gensch worked as a team to calm _____ down , and for him to understand when he was getting anxious. _____ was given tools for example a stress ball or a balloon to blow up to help him with his stress . _____ did not know how to “jump in” or initiate a conversation. _____ was able to interact and appropriately play with his peers. _____ was able to maintain his attention when he was engaged. Ms. Gensch used multisensory engaging activities that would maintain his attention.

_____ was also recommended for Occupational Therapy once a week for thirty minutes. Ms. Efstathiadis is the occupational therapist at the Vincent Smith School who provided services for _____ She actually provided services to _____ once a week , forty minutes each session on a one to one basis. Ms. Efstathiadis testified that _____ has a lot of hand weakness and his fine motor skills are limited. For example _____ could not open a water bottle. Secondly, _____ could not cross “midline” which means if something was on his right side he would use his right hand if it is on the left hand he would use his left hand. _____ was able to tie his shoe laces, but could not put on his socks. He also had deficits in his visual tracking skills. _____ would turn his body to look at an object instead of just turning his head. _____ appeared to be right dominant using his right eye to see, and right foot to kick. ( Tr 356-359)

Ms. Efstathiadis worked with strengthening _____’s hands giving him hand manipulatives. _____ had a lateral grasp. Ms. Efstathiadis was working on a pincer grasp or the ability to pick up items using the index finger and the thumb and strengthening his wrists. _____ writes with increased pressure which causes hand fatigue. She also encouraged _____ to cross his midline by reaching for items with his right hand. _____ would do strengthening exercises using the therapy ball. _____ did a lot of activities on the dry erase board, and gross motor things on the floor. _____ did strengthening exercises where he was required to cross midline.

Ms. Efstathiadis testified regarding _____’s anxiety issues. She attested _____ . shuts down when he gets anxious. _____ gets anxious when he is surrounded by auditory stimuli like a lot of noise. _____ would take a deep breath and not be able to exhale. She worked with _____ on exhaling by using a balloon. _____ would blow into the balloon which would also help him to calm down. (Tr. 356)

_____ did progress during the school year. _____ learned how to identify when he felt anxious and was shutting down. He would request a balloon to help him calm down. He can cross the midline and reach for an object with his right hand. _____ is also able to open a water bottle.

Karen Gelb is the speech therapist at the Vincent Smith School. She meets with _____ twice a week for forty minutes in a small group. The CELF-4 a Descriptive Pragmatics Profile is a checklist that identifies nonverbal and verbal deficits that may negatively influence social and academic communication in context was administered to _____ by his classroom teacher. _____ received a score of 108 on the Pragmatic Profile. His score did not meet the criterion score greater than or equal to 136. ( Parents Exh. F) Ms. Gelb found _____ to be very delayed in his ability to understand spoken language, understanding context, and to pay attention to somebody speaking. _____ has difficulty answering questions, expressing himself in a way that was intelligible. Ms. Gelb worked with _____ on developing conversation with a speaker and a listener. The first task was to get _____ to develop eye contact_____ (Tr. 379) _____ has poor eye contact and when he glanced at the person during a conversation he would be praised. Ms. Gelb stated the first job of a listener is to look at the speaker and then show that they are listening. The listener is asked to comment or ask a question to demonstrate to that person you heard what they said. This activity was repeated with _____ Ms. Gelb would verbally praise and acknowledgement was used frequently to reinforce when _____ used appropriate eye contact with the speaker or listener. (Tr. 380, Parents Exh. F)

Ms. Gelb also worked with _____ to talk about anything other than familiar topics. During the beginning of the school year, it was hard for _____ to talk about topics he was not familiar with or used to talking about struggled during conversations and it was very hard for him to switch and respond , for example “ What did you do?”

_____ also had problems with morphology and syntax, thinking of the right word and understanding the meaning of the word. _____ has difficulty placing words in a meaningful order. If _____ did not know the right word, he would make up a word instead . _____ could not put words together or express a thought in a manner that was understandable and made sense to the listener. (Tr. 383) _____ could not organize his thoughts, and Ms. Gelb used visuals and pictures to help him organize his thoughts.

She also worked with _____ on developing written language skills starting with building his vocabulary. _____ was required to write sentences, capitalizing the first letter of the sentence, thinking of the right word, and using the word in the appropriate order that is intelligible and make sense. _____ worked on sentence completion, sentence construction, sentence comprehension, and word recall tasks to expand expressive and receptive language skills. (Parent’s Exh.F)

Ms. Gelb testified _____ made progress during the 2016-2017 school year. At the beginning of the year _____ had difficulty talking about topics he was not familiar with, or switching during a conversation. _____ would hold his head because he could not switch. _____ is no longer holding his head and having a difficult time shifting. I. T has improved in his ability to listen and make relevant comments when someone is speaking. The pragmatic language goal developed by Ms. Gelb was for _____ was for him to be able to attend for two turns, listen to what the speaker said and make a relevant commen_____ If _____ was the speaker he was required to look at the listener , and respond to questions asked by the listener.

_____’s auditory comprehension and his ability to answer questions improved. _____’s goals was to answer questions of a short paragraph, two to four sentences orally presented. _____ initially would wander after the second sentence. _____ learned how to listen for important information in a short paragraph read out loud.

Additionally _____ was not able to write short clear concise sentences reflecting his ability to organize thoughts in his mind and express them on paper. His sentences were not related, and replete with made up words. Ms. Gelb stated _____’s vocabulary improved and he was not using unrecognizable words by the end of the academic year. Ms. Gelb concluded _____ has made progress but he continues to demonstrate difficulty writing clear concise sentences.

Ms. Dierlam testified regarding the reading goals on the IEP for _____ for the 2016-2017 school year. The first goal states “ [w]hen presented with narrative and/ or informational text from I_’s content area subjects on his instructional reading level, I__ will answer who, what, where, when why, and how to demonstrate the understanding of key details in a tex_____” Ms. Derlam indicated this goal should be more specific. _____ was able to answer these “w” questions when he reads short text, three lines or less. He struggles when the text gets longer. _____’s reading comprehension goal should indicate how many sentences or the length or the paragraph _____ should be able to read and answer the question.

The second reading IEP goal states, “When recounting stories or after reading instructional level text, student will state the main idea, central message, lesson or moral.” Ms. Derlam attested that the teachers work with L.T on identifying the main idea or central message. However _____ is not be able to identify the moral of a story because of his emotional intelligence level. She reiterated the focus should be on developing _____’s ability to recognize the main idea, characters, plot and summaries.

_____ will write a narrative using details to describe the event using temporal words such as first next, and then as the third goal. Ms. Dierlam finds this goal appropriate and skills the teacher was working on with _____ The fourth goal is for _____ to write an opinion piece stating the reason for the opinion and using connecting words as because, and, also. Ms. Dierlam said _____ would not be able to write his opinion about a text until he is able to understand what happened in the narrative as indicated in goal three.

The first speech and language goal on the IEP was for _____ to comprehend complex sentences. Ms. Gelb opined understanding complex sentences was very broad. She questioned how the goal could be measured , is it one sentence, two paragraphs auditory or reading. (Tr. 405) Ms. Gelb indicated she was not working on complex sentences, since _____ had difficulty understanding basic sentences.

Under the math goals _____ will use basic operations in addition, subtraction, multiplication and division to solve problems. Ms. Dielam indicated _____ could execute the basic math computations with extended time, but _____ had problems with fluency and speed. _____ needs to develop the ability to independently work on resolving problems using math facts.

In February 2017 Herman Davidoviez, Ph.D conducted a neuropsychological evaluation on _____ Dr. Davidoviez conducted the Weschler Intelligence Scale for Children – Fifth Edition (WISC-V) . Dr. Davidoviez”s report found _____ to be very distractible and required a great deal of refocusing. He concluded that _____’s scores on the WISC-V were variable with scores ranging from low average to borderline with an overall Full Scale score of 79 which falls in the borderline range at 8 percentile. The General Abilities Index was 86 which falls in the low average range at 18th percentile, and the Cognitive Proficiency Index, 69 was in the mild range of impairment in the 2nd percentile. The Cognitive Proficiency Index reflects short term working memory and clerical speed which are problems for _____ He scored in the average range, 45 percentile on the Verbal Comprehension scale. _____’s score on the Visual Spatial scale was in the low average range at the 10th percentile, while non-verbal problem solving skills were in the borderline range at the 8th percentile. Dr. Davidoviez indicated _____’s score on the Verbal Comprehension scale was misleading. _____ exhibited average to low average conceptual language abilities, on the WISC-V. Although _____ was able to define words, he had problems with his expressive language as demonstrated by and pragmatic skills. _____ the questions measuring syntactic formulation . _____ had to respond to several scenarios presented to him. His general vocabulary was good, and his retrieval score was adequate, however _____ struggled with the spontaneous retrieval of words. _____ also demonstrated variability in language understanding. _____ scored normally when measuring semantic understanding and could respond to fact -based questions. _____ had difficulty with inferential understanding, and non literal understanding.

_____’s word recognition and phonetic decoding in isolation was satisfactory. When _____ was required to read passages on an oral reading tests the rate of speed and accuracy was adequate. _____’s comprehension skills varied when answering questions. He performed better on oral reading and relied on memory to answer fact based questions and respond to questions requiring inference. _____ had difficulty with silent reading. His spelling skills were poor, but knew the mechanics of writing sentences and combining them to create more complex sentences.

_____ had difficulty writing a sentence spontaneously an when asked to write an essay he wrote discrete sentences stating facts with no organization or a continuous narrative. _____ had problems with math with both computational skills and problem solving.

The Childhood Autism Rating Scale-Second Edition ( CARS-2) was also administered to _____ . _____ .was found to have mild characteristics of autism , primarily social, linguistic pragmatic and communication skills. (Parents’ s Exh. B) _____ has a Learning Disability demonstrated in his difficulty with reading comprehension , writing, and math with problem solving. _____ has language based problems. Dr. Davidovicz opined that the Vincent Smith does provide _____ with an appropriate educational setting because the classes are small in a highly – structured environment. 5

Ms. _____ testified regarding _____’s progress at the Vincent Smith School. She stated _____ is learning and it is evident by the homework. _____ is doing his homework more independently, and sometimes he teaches Ms. T how the teacher taught him. (Tr. 436) _____ is now requesting help when he does not understand something, and Ms._____ is able to work with him to do his homework.

DISCUSSION

The Individuals with Disabilities Education Act (20 U.S .C §§1400-1482) was enacted to ensure students with disabilities are afforded a free appropriate public education, FAPE which emphasizes special education and related services designed to meet their unique needs through an individualized education program §§ 1401(29), (14) The rights of children with disabilities and their parents are protected (20 U.S.C § 1400 [d] [1][A]-[B]. ( Forest Grove School District v. _____A.,557 U. S. 230 (2009); Bd. Of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982] )

The IDEA §612(a)(3) also requires each state to have in effect policies and procedures to ensure the State identify, locate, and evaluate all children with disabilities residing in the State regardless of the severity of the disability, attending private schools, wards of the state or homeless. IDEA Part C refer to Early Intervention services for children from birth to a child’s 3rd birthday. After turning age three ( to age 22) a child may be found eligible for specialized instruction and service under IDEA Part B, Special Education. This includes all children who are suspected of having a disability, including children who receive passing grades and are "advancing from grade to grade." (34 CFR 300.111(c)) The law does not require children to be "labeled" or classified by their disability. (20 U.S.C. 1412(a)(3)(B); 34 CFR 300.111(d). Identification of a child with disabilities should done in a timely manner.

A FAPE is offered to the student when a school district complies with the procedural requirements of IDEA, and an IEP is developed by a CSE in accordance with IDEA procedures that is reasonably calculated to enable the student to receive educational benefits. (Rowley, 458 U.S. at 206-07. ) The “reasonably calculated” standard recognizes the CSE must craft an educational program based on a prospective judgment relying on professional expertise and the opinion of parents or guardians. The IEP must aim to enable the child to make progress and to set a plan for pursuing academic and functional advancement Rowley explores what appropriate progress is for a child in a regular classroom with an IEP, which includes “reasonable calculated to enable the child to achieve passing marks and advance from grade to grade”. (458 U.S. at 204) Rowley declined to establish any one test for determining the adequacy of educational benefits conferred upon all children under the Act 458 U.S. at 202 However Rowley did not provide guidance for a child not fully integrated in a regular class and not able to achieve on grade level. “A FAPE must be available to an eligible student who needs special education and related services, even though [student] has not failed or been retained in a course or grade, and is advancing grade to grade” ( 34 C.F.R § 300.101 [c] [1]; 8 NYCRR 200.4[c][5]; Application of a Child with a Disability, Appeal No. 11-005 ) Clearly an educational program providing “merely more than de minimis “ progress from year to year has not been offered a FAPE. The IEP must be designed for the child to make progress appropriate in light of the child’s circumstances. Appropriate progress will be determined on a case by case basis. ( Endrew F. v. Douglas County School Dist. 580 U.S. (2017) An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs . ( 34 C.F.R § 300.320[a][1] ; 8 NYCRR 200.4[d[[2][i]; Application of a Child with a Disability, Appeal No. 11-005) Parents who believe their child have been denied FAPE may request an administrative review of the school district’s determination, enroll their child in a private school and request retroactive reimbursement . The board of education may be required to reimburse parents for their expenditures for private services if the education offered by the board of education was inadequate or inappropriate. ( Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369-70 [1985]; Florence County Sch. Dist. Four v. Carter , 510 U.S. 7[1993] In determining if the parents are entitled to retroactive reimbursement for the cost of private school the Supreme Court in in Burlington ( 471 U.S. at 370) established a three prong test (1) was the program recommended by the board of education appropriate and provided a FAPE (2) was the private placement appropriate to meet the child’s needs and( 3) in fashioning a relief, the impartial hearing officer must weigh “equitable considerations” to determine the reasonableness of the parents’ actions . ( See also Carter 510 U.S. 7, 12-13) The district has the burden of proof regarding the appropriateness of its placement or that it has provided a FAPE. Parents seeking tuition reimbursement for a private school placement has the burden of proof as to the appropriateness of its’ unilateral placement ( Educ. Law § 4404 [1][c]; Frank G. v. Bd. Of Educ., 489 F.3d 356at 363, RE , 694 F.3d at 184-85, M.P.G. v. NYC Dep_____ of Educ . (2010 WL 3398356 (2010), _ Application of a Child with a Disability, Appeal No. 14-162, Application of a Child with a Disability, Appeal No. 11- 005) “If the parent lacks the financial resources necessary to front the costs of private school tuition, the parent may request direct retroactive payment to the private school.”); A.R. ex rel. F.P. v. New York City Dep't of Educ., No. 12 Civ. 4493, 2013 WL 5312537, at *10–11 (S.D.N.Y. Sept. 23, 2013) (Crotty, J.) (agreeing with “Judge Gardephe's well-reasoned opinion in Mr. & Mrs. A. that a court's broad discretion to grant such relief as is appropriate under 20 U.S.C. § 1415(i)(2)(C)(iii) includes the power, in a proper case, to award retroactive direct payment of private school tuition” (internal quotation marks and alternations omitted)).

DISTRICT’S POSITION

The District claims _____ was provided a FAPE. The IEP developed by the CSE after the May 2, 2016 meeting recommended that _____ continue in a 12:1:1 special education class at Pulaski Road Elementary School, with occupational therapy individual occupational therapy once a week, speech and language therapy twice a week in a small group and parent counseling/ training once a month. Relying on the testimony of Ms.

Myung the District argues the 12:1:1 program was successful for _____ Ms. Myung opined since _____ made progress in her fourth grade class, there was no need to consider a different program in fifth grade. She stated _____ was successful academically and socially and that he showed improvement _____ (Tr. 112) Ms. Myung indicated _____ had attention issues, was impulsive, and he often needed to be redirected. She developed classroom strategies to address _____’s attention issues , for example allowing him to walk around the classroom and work at a standing desk. Ms. Myung used the Smart Board extensively because the visualization helped _____ to focus, and the Smart Board was interactive and interesting for _____ ( Tr. 88-89) She worked with _____ on a daily basis in small groups and on a one-on-one basis.

Ms. Myung said _____ achieved most of his IEP goals. He achieved both reading goals and progressed about a year from Level M to Level O . Ms. Myung also stated _____ achieved his writing goals with prompting and adult support and math goals .

Relying on the Court’s decision in Rowley the District argues the services recommended for _____ was sufficient to provide _____ some educational benefit supported by the testimony of Ms. Myung and Dr. White. The services recommended by the school district does not need to meet or exceed the services provided by the private school in which the student has been unilaterally placed by the parent . To require a school district meet this standard would be burdensome and contradict the purpose of the IDEA which is to provide a “basic floor of opportunity” (Rowley, supra, 458 U.S 176 at 201 ) . The District contends the basic floor under Rowley is to provide a “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”( Rowley Id. at 203) The Second Circuit in Walczak v. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) at 130) held the placement must provide progress, not regression and the progression must be more than trivial advancement. The District claims it’s placement recommendation for _____ exceeds it’s responsibilities under Rowley and Walczak.

PARENT’S POSITION

The Parent proffer’s several arguments in support or her contention that the District failed to offer a FAPE to _____ The Parent claims the District had placed _____ in a 12:1:1 special class for years, although he fails to meet with any success. To support this contention the Parent relies on _____’s scoring a Level 1, well below proficiency in ELA and math on the state-wide examinations, (Parent’s Exh. C) and his fourth grade report card illustrated that in most subjects he “Does not yet demonstrate knowledge/understanding of grade level concepts and skills taught. Requires support _____” (Dis_____ Exh. 11) The Parent contends _____ was reading almost two years behind grade level when the CSE convened in May 2016. In 2014 according to the WISC-IV, _____’s Full Scale Score was 94, which was within the normal range. In February 2017 _____’s Full Scale IQ as measured by the WISC-V was 79 which is within the Borderline range. The Parent’s cite the difference in the score as proof that _____ had regressed.

The Parent further argues that the District did not provide a FAPE because it failed to conduct a Functional Behavior Assessment (FBA) or develop a Behavior Intervention Plan (BIP) for _____ A school district must consider the use of positive behavioral interventions to address behaviors that may impede the student’s ability to learn. 20 U.S.C §1414(d)(3)(B)(i). The District must develop a FBA, providing detailed information about a student’s problem behaviors and a BIP which includes strategies to reduce these behaviors. (8N.Y.C.R.R § 200.22(a)-(b). The IEP notes that _____ ‘s “classroom behavior can interfere with his instruction,” and _____’s “behavior is an area of concern regarding self-control and self-management.” ( Exh. 7) _____ gets upset and becomes anxious when things did not go as he wanted. The District’s witnesses indicated _____ did not need a FBA or BIP. Dr. White testified _____’ was distractible and frustrated , and Ms. Myung stated _____ was more distractible and would move around more during the last quarter of the 2015- 2016 school year. The District had one behavioral goal on the 2015- 2016 IEP which was not met. The 2016-2017 IEP did not include any social behavioral goals or supports to address _____‘s negative behavior. The District did not recommend counseling for _____ as a related service.

The Parent also challenges the level of related services provided to I.P. _____ demonstrated significant speech delays which impacted his educational performance. _____ had difficulty remaining focus, and was delayed in his ability to pay attention to the speech and the language services provided to _____ were reduced from three sessions per week to two. Similarly, _____ presented delays in fine and gross motor skills where he was not able to open a water bottle and needed adult assistance to eat lunch. _____ had O.T only once a week. Finally the Parent claims the District’s recommendations were predetermined and she was denied effective participation in the IEP meeting. She indicated the District just recommended the same services and did not consider her concerns.

To determine whether _____ received a free appropriate public education is twofold. It must be determined whether the District complied with the procedures set forth in the IDEA, and second whether the individualized educational program developed through the Act’s procedures were reasonably calculated receive educational benefits. (Rowley 458 U.S at 206-07; R.E v. New York City Dep’t of Education 695 F. 3d 167, 189-90 [ 2d Cir. 2012; M.H v. New York City Dep’t of Educ. 685 F. 3d 217, 245 { 2nd Cir.2012)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

CARTER/BURLINGTON TEST

PRONG ONE- FAPE

I find the District did not provide _____ a FAPE under the criteria set forth under Rowley . The record reflects _____ had deficits in comprehension, writing, pragmatic language and inferences and math. _____’s biggest deficits were his distractibility, difficulty focusing, and reading comprehension. _____ has been in a special education class 12:1:1 since first grade. The District claims _____ has made progress that exceeds the standards articulated in Rowley and Walczak . The District’s position is not reflected by the record. The District refers to the testimony of Ms. Myung to support the it’s claim of FAPE. Ms. Myung was _____’s fourth grade teacher. She testified that _____, was one of ten students in her class where she worked with him daily one-on-one or in small groups. (Tr.81) She admits _____ has attention and focus issues that has impacted his academic achievements. _____ became anxious with little noises or changes or when things did not go his way. As noted in the IEP in effect for _____ in fourth grade he struggled with self-control and self management. Ms. Myung worked with _____’s focus and anxiety issues by constantly redirecting him to focus on tasks. If _____ was reading, she would make sure he slow down and focus. Ms. Myung allowed _____ to move around the class room and work at a standing or kneeling desk to address his anxiety and impulsivity. By the end of fourth grade _____ had become more distractible and frustrated and his movement around the classroom had increased. Ms. Myung concluded _____ was not able to function independently and needed a lot of teacher support. (Tr. 41 and 51) Notwithstanding _____’s focus deficits, anxiety and impulsivity issues the District failed to recommend _____ for counseling. Ms. _____ complained to the District about _____’s frustration and behavior issues. The CSE still developed an IEP for 2016-2017 that did not provide counseling as a related service, and failed to require functional behavior assessment (”FBA”) or the development of a behavior intervention plan,(“BIP”) or goals addressing _____’s anxiety issues. Ms. Myung said _____ did not have behavior issues in class and would not benefit from counseling because he would not remember the circumstances by the time the counseling session is conducted.

Ms. White opined _____ was making nice progress in Ms. Myung’s class with a small group, eight students before he transferred to the Vincent school. Ms. White stated Ms. Myung’s class was appropriate for _____ because of her classroom management strategies and interventions she utilized to address _____’s anxiety and focus issues. The District argues this progress was evidence that the program recommended for _____ ’s was designed to provide educational benefit for _____ including his social and emotional issues. _____ failed to achieve the social and emotional goal in fourth grade on the IEP. New York requires an FBA “for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities (N.Y. Comp. Codes R & Regs. Ti_____8§ 200.4(b)(1)(v) . The FBA should include the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. (Id. § 200.1(r). When a student’s behavior impedes his learning a BIP must be developed with strategies to deal with the problematic behavior. Id. § 200.22(b). The record clearly establishes _____ anxiety and focus issues impeded his ability to learn. Myung stated _____’s progress was slow because of his impulsivity. _____ constantly had to be redirected to enable him to complete tasks such as writing sentences, reading and comprehension, and listening to participate in a conversation as a few examples. The District’s failure to conduct a FBA and provide a BIP rises to a procedural violation and denial of FAPE since the IEP generated May 2 for the 2016-2017 school year has no goals addressing _____’s emotional and focus problems or otherwise address these issues,. (R.E v. New York City Department of Education 694 F. 3d 167 (2d Cir. 2012) Ms. Myung’s classroom management, strategies even if successful with _____ does not relieve the District of its obligations to include a FBA, BIP and counseling services, on the IEP.

Secondly the record does not establish the recommended program provided educational benefit for _____ Although Ms. Myung testified _____ met most of his IEP goals for fourth Ms. Myung also admitted _____ was not academically on grade level, and was only able to achieve the goals set forth for him in his IEP, with adult support _____’s report, Exhibit 11 states in most categories that _____ did not demonstrate knowledge and understand grade level concepts. By continuing the same services that yielded “slow” progress was a denial of FAPE. Greenwich Bd. Of Educ. v. G.M and J.M 3:13-cv- 002335 (2016)

_____ has been able to promote from grade to grade, however FAPE requires more than de minimis “ progress from year to year ( 34 C.F.R § 300.101 [c] [1]; 8 NYCRR 200.4[c][5]; Application of a Child with a Disability, Appeal No. 11-005 ) Clearly an educational program providing “slow” progress as with _____ is not designed to make progress appropriate for _____ ( Endrew F. v. Douglas County School Dis_____ 580 U.S. )

Additionally the record testimony suggest the goals recommended on the IEP for the 2016-2017 were too broad and not appropriate for _____ For example, Ms. Dierlam testified the first goal states “ [w]hen presented with narrative and/ or informational text from I_’s content area subjects on his instructional reading level, __ will answer who, what, where, when why, and how to demonstrate the understanding of key details in a text” Ms. Derlam indicated this goal should be more specific. _____ was able to answer these “w” questions when he reads short text, three lines or less. He struggles when the text gets longer. _____’s reading comprehension goal should indicate how many sentences or the length or the paragraph _____ should be able to read and answer the question.

In reading, _____ was able to memorize words, but when reading a sentence or paragraph he did not understand what he read. Language, _____ had difficulty maintaining focus to participate in a conversation. Ms. Gelb, _____’s speech and language therapist at The Vincent Smith School testified _____ scored below passage on The CELF-4 a Descriptive Pragmatics Profile which identifies nonverbal and verbal deficits that may negatively influence social and academic communication. _____ received a score of 108 on the Pragmatic Profile ( Parents Exh. F) evidencing _____ to be very delayed in his ability to understand spoken language, understanding context, and to pay attention to somebody speaking. _____ has difficulty answering questions, expressing himself in a way that was intelligible. In accordance with the IEP, _____ received speech and language therapy twice a week not three times a week as provided in fourth grade. Dr. Davidovicz recommended additional language therapy including individual sessions for _____, and small group sessions to work on pragmatics. He stated _____ speech and language services should be increased to three days a week. In writing, _____ was not able to organize his thoughts. _____ clearly needs a small class environment to be successful. The slow progress made by _____ has been attributed to Ms. Myung’s fourth grade class having less than 12 students and her ability to work with _____ on a one-to – one basis. The District can not offer evidence extrinsic to the IEP when deciding whether an educational program provides a disabled child with a FAPE, and adopted “the majority view that the IEP must be evaluated prospectively as of the time of its drafting and that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered.” R.E. v. New York City Department of Education, 694 F.3d 167 at 186.(2d Cir.2012). The court explained that “testimony may be received that explains or justifies the services listed in the IEP,” id., but the district “may not introduce testimony that a different teaching method, not mentioned in the IEP, would have been used,” id. at 186–87 or introduce evidence that modifies this staffing ratio (such as testimony from a teacher that he would have provided extensive 1:1 instruction to the student).” Id.; see also C.F., 746 F.3d at 79–80 This rule reasonably protects parents who must assess a proffered IEP without the benefit of after-the-fact testimonial modifications. Ms. T credibly testify that _____ was not learning at the Pulaski School. She testified _____ could not write, he struggled with reading and comprehension, and was delayed in math. Ms. T also complained that _____ was exhibiting behavior problems where he was beginning to mimic the behaviors of the other students. He struggled with doing homework , and would act out . 6 Prong Two- Parent’s Placement _____ started school at the Vincent Smith School in October 2016. The school provides individualized instruction and attention to children like _____ who are easily distracted and needs redirection. The Vincent Smith School provides a full academic curriculum with all the major subject areas and related services. The school has, in addition to subject matter teachers, a school psychologist, social worker, counselor, occupational therapist, two reading and speech teacher. Ms. Dierlam is the Dean of Students at the Vincent Smith School. She testified regarding the curriculum used at the Vincent Smith School and _____’s program at the school. She indicated the school uses a writing curriculum, SPIRE for reading which is an Orton-Gillingham based program, and Jump Math. All of these programs are multisensory and researched based. Currently there are 50 students enrolled in the school. The lower school class size is no larger than four students. _____ received O.T , speech and language therapy and counseling in addition to the academic curriculum. Ms. Gelb provides speech and language therapy to _____ She indicated _____ has pragmatic expressive language delays impacting his ability to conduct an intelligible conversation. _____ struggled with retrieve words when speaking. _____ would make up words when he could not think of an appropriate word during a conversation. Ms. At the beginning of the year _____ had difficulty talking about topics he was not familiar with, or switching during a conversation. _____ would hold his head when he could not switch. Gelb testified _____ made progress during the 2016-2017 school year. _____ is no longer holding his head and having a difficult time in shifting. I. T has improved in his ability to listen and make relevant comments when someone is speaking. Ms. Gelb had Since I have found the District failed to provide FAPE by not addressing _____’s emotional issues through a FBA, BIP or counseling services, and the IEP failed to provide educational benefit pursuant to Rowley and its progeny, I do not need to decide the issue whether Ms. T was denied an opportunity to participate in the CSE meeting May 2, 2016 .

also worked on developing _____’s vocabulary which helps him select words and speak intelligently. _____ receives occupational therapy and has shown improvement Initially _____ was not able to open a water bottle or reach cross the mid section of his body due to hand and core weakness. Ms. Efstathiadis worked with strengthening _____’s hands giving him hand manipulatives. _____ had a lateral grasp. Ms. Efstathiadis was working on a pincer grasp or the ability to pick up items using the index finger and the thumb and strengthening his wrists. She also encouraged _____ to cross his midline by reaching for items with his right hand. _____ would do strengthening exercises using the therapy ball. _____ did strengthening exercises where he was required to cross midline. _____ can now reach across his body for items, and he is able to open a water bottle.

Ms. T has seen the improvement in _____’s academic performance since attending the Vincent Smith School. She no longer struggles with _____ when during homework. _____ is able to work more independently and is able to demonstrate to his mother what he was learning in school.

Prong Three- Equities In weighing the I find the parent is entitled to retroactive tuition reimbursement Ms. T attended the May 2, 2016 CSE meeting and cooperated with the District Ms. T decided to consider other options after the CSE met, and recommended the same 12:1:1 that had been recommended previously for _____ Dissatisfied with _____’s progress, Ms. T did not start looking around until after recognizing the District was offering the same program. She considered the financial obligations before placing him at the Vincent Smith School. Absent evidence the parent obstructed the process, the equities should be decided in favor of the parent ( I.B v. N.Y City Department of Education, 15-CV -01309 (LTS), 2016 WL 1069679 at 18 (March 17, 2016). Ms. ____ testified she has paid $2,000 towards the $$46,750 tuition at the Vincent Smith

School. She is seeking retroactive payment of the balance of the tuition, and transportation costs. Ms. ____ testified that she is disabled and have minimum income and can not afford the costs of the tuition. The courts have held the IDEA permits courts, in appropriate cases, not only to order “reimbursement” of tuition costs to parents, but also to order retrospective payment of tuition directly to the private school where a parent has unilaterally enrolled her child. Where, as here, parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs—or will take years to do so—parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief. ( See, e.g., Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F.Supp.2d 403, 428 (S.D.N.Y.2011) In this case, the broad equitable relief authority contemplated under the IDEA encompasses, in appropriate circumstances, a “direct-payment” remedy. (Cf. Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 371 (2d Cir.2006) (noting that the IDEA “confer[s] broad discretion on the district court to grant relief it deems appropriate to parents of disabled children who opt for a unilateral private placement” (citing 20 U.S.C. § 1415(i)(2)(C)(iii))). Indeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework: like reimbursement, direct payment to the private school that provided the required educational program “merely requires [the school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.” Burlington, 471 U.S. at 370–71. It also furthers the IDEA's remedial purposes by extending the unilateral withdrawal option to parents with limited financial means, who otherwise could not avail themselves of it. See id. at 372 (“The [IDEA] was intended to give handicapped children both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.”). ( E.M v. NYC Dep_____ of Educ. , 758 F.3d 442 at 454 ( 2014); Mr. and Mrs. A v. NYC Dept, of Educ., 769 F.Supp, 2d 403 (SDNY 2011),

CONCLUSION

Accordingly, the parent is entitled to retroactive tuition reimbursement for the placement of _____ at the Vincent Smith School and reasonable transportation costs.

ORDER:

1. The Northport -East Northport Union Free School District is ordered to pay the Vincent Smith School for tuition costs for _____ for the 2016-2017 school year, $ 44, 750.

2. The Northport-East Northport Union Free School District is ordered to reimburse Ms. T $2,000 paid for tuition for _____ at the Vincent Smith School for the 2016-2017 school year.

3. The Northport –East Northport Union Free School District is ordered to reimburse the parent of _____ for the cost of providing transportation for _____ to and from the Vincent Smith School for the 2016-2017 school year.

4. Within forty-five (45) days of the receipt of this decision the parent of _____ is ordered to present to the Northport-East Northport Union Free School District proof of transportation costs to transport _____ to and from the Vincent Smith for the 2016-2017 school year. Acceptable forms of proof of payment may include, but not limited to bills, invoices, credit card statements, canceled checks, or receipts. If the parent provided transportation using her personal car , and such proof of payment does not exist, then the parent will be reimbursed based on the mileage reimbursement rates set by the Internal Revenue Service.

Denise Washington, Impartial Hearing Officer (516) 532-1745 dwashin423@aol.com Issued this 14 of December , 2017

Denise Washington,

Impartial Hearing Officer

NOTICE OF THE RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and or/ the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Ac_____ If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of the procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http:/www.sro.nysed.gov.

EXHIBIT LIST

Exhibit Document Description Pages

DISTRICT’S EXHIBITS

1 Speech & Language Summary 10/4/13 3 2 Psychological Evaluation 2/10/14 5 3 Kaufman Test of Education Achievement 3 4 Teacher Progress Summary 1 5 O._____ Annual Review Recommendations 2/8/16 1 6 O._____ School Functional Assessment 2/8/16 2 7 IEP 5/2/16 10 8 Attendance Sheet 5/2/16 1 9 PWN 5/2/16 2 10 Progress Report 2015/16 6 11 Report Card 2015/16 2 12 PWN 9/21/16 4 13 Student Progress Report 2015/16 1 14 Answer Due Process Complaint 1 15 IEP 9

PARENT’S EXHIBITS 1

A Demand for Due Process 5/4/2017 6 B Neuropsychological Evaluation, Herman Davidovicz, PHD 2/24/17 10 C NYS Assessment Performance Report 8/16/17 7 D Classroom Teacher Report Annual Review, Josephine Erbacher 5/25/17 2 E Classroom Teacher Report Annual Review, Lauren Zlotoff 5/25/17 2 F Speech Progress Report, Karen Gelb SLP 5/18/17 3 G Occupational Therapy Progress Report 5/23/17 2

Filanthe Efstathiadis O._____R H The Vincent Smith School 2016-2017 Report Card 10 I The Vincent Smith School 8/16/16 1 J The Vincent Smith School Enrollment Contract 2016-2017 1 K The Vincent Smith School Tuition Affidavit 5/15/17 1 L Letter From Parent to District 9/14/16 1 5 Dr. Davidovicz recommends additional language therapy including individual sessions for _____, and small group sessions to work on pragmatics. He also recommended that speech and language services be increased to three days a week.