NY IHO #ih-2016-10: Impartial... | Special Education Law

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UNIVERSITY OF THE STATE OF NEW YORK

STATE EDUCATION DEPARTMENT

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

DISTRICT,

Respondent. X

INTRODUCTION AND POSITION OF THE PARTIES

This hearing is held pursuant to Section 200.5(j) of the Regulations of the New York State Commissioner of Education, 8 N.Y.C.R.R. Section 200.5(j). Petitioners XXXX and XXXX, (the “Parents”), requested an Impartial Hearing on behalf of their child, XXXX, (the “Student”), contesting on procedural and substantive grounds, the appropriateness of IEP and placement recommendations made by the District’s Committee on Special Education (the “CSE”) for the Student for the XXXX school year. The Parents seek annulment of the IEP for the XXXX school year; reimbursement for tuition and related expenses for the Student’s unilateral placement at (“XXXX”), for the XXXX school year; reimbursement for transportation expenses incurred by them; provision of an appropriate IEP; payment of attorney’s fees and expenses associated with their legal representation; and provision of any further relief, including compensatory education, which the Hearing Officer deems just and proper (Ex. IHO-3).

The District asserts denials in its Answer and also asserts that it offered an appropriate educational program, together with appropriate related services and various program modifications for the Student for the XXXX school year which were reasonably calculated to produce meaningful educational benefit in the least restrictive environment (“LRE”). Moreover, that the Parents’ claims that the District failed to conduct a functional behavioral assessment (an “FBA”), and failed to recommend appropriate speech and counseling services was wholly without merit. In addition, that the District was not required to maximize the Student’s potential; that the Student was meeting grade level expectations in all areas with supports recommended on the Student’s previous IEPs; that the CSE properly determined that the supports recommended on the XXXX IEP were reasonably calculated to produce meaningful educational benefit in the LRE; that XXXX was not appropriate and did not constitute the LRE for the Student; that the Student functioned in the XXXX range in all academic skill areas; that there is no evidence that the Student was unable to make progress in a public school setting with supports; that a private school is not required for the Student to make progress; that XXXX is not a XXXX program and did not offer the Student access to XXXX; that the Student had to be removed from XXXX because the school was not able to address XXXX; that XXXX did not provide the Student with access to the New York State common core curriculum or to “highly qualified teachers;” and that XXXX did not offer the Student with access to non-disabled peers. The District also asserts that equitable considerations preclude a recovery of tuition reimbursement (Ex. D-2).

PROCEDURAL HISTORY

In a Due Process Complaint Notice dated June 17, 2014, the Parents requested an Impartial Hearing to compel payment by the District for tuition and related expenses for the Student’s unilateral placement in XXXX for the XXXX school year (Ex. IHO-3).

In a letter dated June 19, 2014, I was advised of my selection and appointment as Impartial Hearing Officer (“IHO”) in this matter (Ex. IHO-1).

On July 29, 2014, a pre-hearing telephone conference was held for the purpose of clarifying the issues. Tentative hearing dates were also scheduled (Ex. IHO-6). On July 30, 2014, the Parents requested the IHO’s recusal. On August 1, 2014, their application was denied (Ex. IHO-8).

There were a total of 19 days of hearing in this matter. Hearings commenced on September 23, 2014, and continued on September 29, 2014, October 20, 2014, October 21, 2014, October 29, 2014, November 25, 2014, December 12, 2014, December 15, 2014, December 17, 2014, January 14, 2015, February 17, 2015, May 28, 2015, July 23, 2015, July 24, 2015, November 10, 2015, November 17, 2015, December 2, 2015, December 15, 2015, and December 22, 2015 (Tr. pp. 1-4378) ^[1]. On January 12, 2015, the IHO issued a written Interim Decision and Order on an evidentiary issue raised by the Parents (Ex. IHO-15). The District presented 6 witnesses on its direct case. The Parents presented 10 witnesses on their direct case. The District presented 1 witness on its rebuttal case. The transcript is 4,424 pages in length. The District submitted a total of 46 exhibits. The Parents submitted a total of 88 exhibits. The Impartial Hearing Officer submitted a total of 32 exhibits. The Impartial Hearing Officer granted a total of 20 requests for extension of the 45 day rule. The actual record close date was April 26, 2016. The IHO’s decision was due on May 4, 2016 (Ex. IHO-30). Both parties submitted post-hearing briefs (Exs. IHO-31, IHO-32).

ISSUES

In their Due Process Complaint Notice, the Parents state that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the XXXX school year. They state that the District failed to provide an appropriate program and placement for the XXXX school year which adequately addressed the Student’s academic, physical, social and emotional needs; that the District failed to XXXX for the XXXX school year; that it failed to XXXX; that it failed to offer adequate XXXX for the XXXX school year, including XXXX for or during the XXXX school year; that it failed to use an appropriate, scientifically-based methodology and/or strategy based on peer-reviewed research to address the Student’s XXXX for the XXXX school year; that it failed to appropriately address XXXX; that it failed to offer XXXX for the XXXX school year; that it failed to provide appropriate XXXX; that it failed to provide adequate XXXX; that it failed to provide appropriate XXXX; that XXXX was an appropriate placement for the Student for the XXXX school year; and that the equities weigh in favor of reimbursement to the Parents (Ex. IHO-3).

The District asserts that the CSE’s recommendations for the XXXX school year provided a FAPE in the LRE and were reasonably calculated to produce meaningful educational benefit; that the Student made “astounding” progress in the District’s programs during XXXX; that his cognitive and academic testing scores fell within the XXXX, with the exception of XXXX, which was XXXX; that the CSE’s recommendations for the Student for the XXXX school year, which consisted of placement in XXXX, together with related services of XXXX, together with other program modifications, were appropriate; that the Parents’ claims that the District failed to XXXX are without merit; that the District is not required to maximize the Student’s potential; that the Student was meeting grade level expectations in all areas with supports recommended by the CSE in previous IEPs; that the CSE properly determined that the supports recommended on the XXXX IEP were reasonably calculated to produce meaningful educational benefit in the LRE; that XXXX is not appropriate and does not constitute the Student’s LRE; and that equitable considerations preclude a recovery of tuition reimbursement (Ex. D-2).

FINDINGS OF FACT

The Student, born on XXXX, is currently XXXX years old. ^[2] The Student XXXX.

The Student XXXX. Complete information regarding the Student’s history XXXX.

The Student has been diagnosed with XXXX (Exs. P-A at p. 2; P-QQQ at p. 6; P- ZZZ at pp. 8-11; P-DDDD; D-24 at pp. 15, 17-18; D-26 at p. 63).

In or about XXXX, the Parents referred the Student to the CSE for evaluation during his XXXX (Exs. P-XXX, P-YYY). He received pre-referral interventions including XXXX. The classroom teacher reported significant improvements in XXXX (Ex. D-4 at pp. 1-2). The Parents provided private tutoring for the Student during the XXXX school year (Ex. P-EEEE at pp. 1-5).

The CSE considered XXXX (Ex. D-4 at pp. 2-3). On XXXX, the CSE found the Student to be ineligible for classification, noting that the Regulations of the Commissioner of Education XXX. The CSE requested a XXXX evaluation and recommended building level supports of XXXX (Exs. D-4 at p. 2, P-OOO).

On XXXX, the Parent provided written consent for communication and release of records to XXXX, a XXXX, who performed a Combined Developmental, Neuropsychological, and Educational Assessment Plan for the Student (Exs. P-PPP, P- QQQ, P-SSS at p. 1). Developmentally, it was noted that XXXX (Ex. P-QQQ at p. 6). XXXX reported that, soon after XXXX. His XXXX – he had to XXXX (Ex. P-QQQ at p. 7). XXXX found that the Student’s background was significant for XXXX (Ex. P-QQQ at p. 8).

Results of cognitive testing by XXXX showed a child with XXXX (Ex. P-QQQ at p. 20).

In the area of XXXX testing, XXXX reported that the Student XXXX (Ex. P-QQQ at pp. 23-24).

The Student’s XXXX skills were comparable to a typically developing child about one year younger, entering the XXXX grade. XXXX concluded that the Student’s then-current academic placement appeared to be appropriate from a curriculum standpoint. He had the academic foundation to benefit from XXXX with extensive help and support. Two areas of remediation identified during the academic assessment were XXXX (Ex. P-QQQ at p. 28).

XXXX characterized the Student’s XXXX. The Student had XXXX (Ex. P-QQQ at p. 32).

XXXX recommended classification for the Student as XXXX, as it reflected the XXXX (Ex. P-QQQ at p. 33). He also made specific educational recommendations for the Student regarding school placement, specific teaching remedial methodologies, school-based supportive services such as XXXX. XXXX also recommended updated educational testing every 6 to 12 months using the XXXX (Ex. P-QQQ at p. 38). XXXX discounted the validity of a XXXX Evaluation obtained by the District through XXXX and performed by XXXX (Exs. P-RRR, P-VVV).

On October 21, 2009, the CSE reconvened and reviewed additional evaluations and the Student’s progress. XXXX reviewed his evaluation and made recommendations during the meeting. The Parent reviewed the Student’s then-current XXXX. The classroom teacher, the XXXX teacher, and the Student’s XXXX discussed the Student’s academic progress and challenges. The CSE reviewed a letter from XXXX, regarding XXXX (Ex. P-MMM). The CSE also reviewed a XXXX by XXXX (Ex. P-WWW); a letter from a physician identified as “XXXX” regarding the Student’s diagnosis with XXXX, his use of XXXX, an additional letter from a physician identified as “XXXX” indicating a diagnosis of XXXX; a private XXXX Evaluation; a report from “XXXX” suggesting a diagnosis of XXXX; a private XXXX report; a private XXXX (Ex. P- TTT); and input from the District’s XXXX who reported on the Student’s participation in XXXX (Ex. P-JJJ at p. 6). In addition to school testing in the areas of XXXX (Ex. P- UUU) and XXXX, the Parents arranged for private XXXX (Exs. P-JJJ at pp. 6-7, P-QQQ at p. 8, P-UUU). The documentary evidence also includes administrations of the XXXX (Exs. P-KKK, P-LLL).

Based on all of the information presented, the CSE determined to classify the Student as XXXX. He was placed in XXXX (“XXXX”) in the XXXX grade. His special education programs and services included XXXX. The IEP contained a notation that XXXX. Program Modifications, Accommodations, and Supplementary Aids and Services included XXXX. Support for school personnel on behalf of the Student included XXXX. The IEP also contained annual goals in the areas of XXXX (Ex. P-JJJ). In addition, the Parents provided the Student with private services outside of the regular school day, including XXXX (Tr. pp. 3616-3632, 3637, 3639-3644, 3661; Ex. P-EEEE).

The Student had XXXX issues in XXXX and XXXX, and there was discussion about moving him to the District’s XXXX (“XXXX”) (Tr. pp. 3320-3321, 4365; Exs. P-CCC, P- DDD, P-EEE, P-FFF, P-HHH, P-III). The Student was ultimately moved to XXXX on XXXX (Ex. P-BBB).

The record reflects that the Student privately attended XXXX. The Parents requested that XXXX be conducted. They also requested a CSE meeting to review privately obtained evaluations for XXXX (Ex. P-ZZ).

For the XXXX school year, the Student was placed at XXXX. He received XXXX. Related services included XXXX. Program Modifications, Accommodations, and Supplementary Aids and Services included XXXX (Ex. P-YY).

The CSE meeting minutes reflect that the Parents reported XXXX, which was being addressed through XXXX. The special education teacher also reported that the Student’s XXXX. The XXXX therapist reported that the Student was XXXX. Implementation of XXXX was discussed but placed on hold until XXXX (Ex. P-YY at p. 6). The IEP contained annual goals in the areas of XXXX (Ex. P-YY at pp. 7-9).

The record reflects that as of XXXX, the Student’s XXXX was XXXX (Exs. P- WW, P-XX). XXXX, the Student’s case manager and the special education teacher in XXXX, prepared a summary of data collected on school days between XXXX which indicated that XXXX (Tr. pp. 408-409; Exs. P-TT, P-XX).

In XXXX, XXXX, together with XXXX and XXXX, met to XXXX (Ex. P-CCCC). On XXXX, the Parent consented for annual review testing (Ex. P-VV).

On January 5, 2011, the CSE reconvened for a program review at the Parents’ request. The CSE minutes reflect that the Parents reported XXXX (Tr. pp. 408-409; Exs. D-8 at pp. 5-6, P-TT, P-XX).

For the remainder of the XXXX school year, the CSE recommended a change in placement to a XXXX setting at XXXX to address the Student’s then-current XXXX needs. He was placed daily with other students in XXXX. He continued to receive the same related services, program modifications, accommodations, and supplementary aids and services (Ex. D-8 at pp. 1-2).

Academically, a review of the Student’s XXXX Report Card reveals that in the area of XXXX (Ex. D-9 at p. 1). Narrative information indicates that XXXX (Ex. D-9 at p. 3). Overall, XXXX (Ex. D-9 at p. 4).

Testing XXXX (Ex. D-12 at p. 2).

A review of the Student’s progress on his annual goals at the end of his XXXX grade year indicated that he achieved all of his XXXX goals and XXXX goals. In the area of XXXX, he achieved one goal and was progressing satisfactorily on three other goals. In the area of XXXX goals, the Student achieved one goal and progressed gradually in two other goals. In the XXXX area, the Student achieved one goal and was progressing satisfactorily on two other goals (Ex. D-11 at pp. 9-13).

At a CSE meeting held on XXXX for the XXXX school year, the CSE recommended continued placement for the Student in XXXX, but changed the location of the class to XXXX. It also continued to recommend XXXX (Ex. D-12 at pp. 1, 10). The Student would also receive XXXX (Ex. D-12 at p. 2). The CSE continued to recommend annual goals in the areas of XXXX. It also continued to recommend supplementary aids and services, program modifications, and accommodations including XXXX (Ex. D-12 at pp. 8-11). The CSE minutes indicate that the Parents were pleased with the Student’s progress and believed that XXXX helped him (Ex. D-12 at pp. 1-2).

The documentary evidence shows that the Parents were unhappy with the Student’s placement at XXXX during the XXXX school year. It also shows that the Student had difficulties with XXXX. He was XXXX (Ex. D-14). On XXXX, the CSE met at the Parents’ request and they raised a number of concerns, which they identified as: XXXX (Ex. D-13 at p. 2).

The IEP minutes indicate that the CSE Chairperson, XXXX, stated that she was not previously aware that the Student had difficulties with XXXX. XXXX also stated that there was no need to add a XXXX to the IEP as it is mandated by the IDEA and New York State law and regulations. The special education teacher, XXXX, stated that the Student was in a safe environment and was able to access his learning; that he transitioned quickly from his previous placement and was able to acclimate to the structure and expectations of the class; that he was eager to follow the class rules; that on a day to day basis, XXXX ^[3]; that the Student was provided with mainstreaming opportunities into XXXX general education classroom, with aide support; that he successfully pushed into the mainstream science lab and special events; and that he did not need much assistance during those times (Ex. D-13 at p. 2).

The school principal, XXXX, stated at the CSE meeting that he observed the Student approximately 20 times over a period of a few weeks and found him to be safe, engaged, and on task during all but one visit. The school psychologist, XXXX, stated that she saw him well over 20 times, and he was engaged and on task. She also stated she did not observe him to be unhappy or unsafe (Exs. D-13 at p. 2, D-21).

The Parent stated at the CSE meeting that the Student said he left a XXXX. The XXXX therapist, XXXX, stated that it was this Student who was XXXX. The Parents spoke about XXXX. An argument then ensued between the Parent and XXXX over an incident involving XXXX and the Student, and CSE members were instructed by XXXX to leave the room. The Parent concluded her comments, stood, and indicated the meeting was over. XXXX terminated the meeting and offered to meet with the Parents at any time should they choose to continue to work on resolving issues and concerns. The Parents stated they would consider moving to an Impartial Hearing. The District provided a Prior Written Notice with respect to the CSE meeting (Exs. D-13 at pp. 2-3; P-V at pp. 1-2).

The relationship between home and school continued to deteriorate. In an e-mail dated XXXX, the Parents revoked consent which previously allowed the District access to the Student’s private providers of XXXX, without expressed personal consent from the Parents on a case-by-case basis (Ex. D-22). On XXXX, the Parents requested transportation for the Student to the XXXX in XXXX for the XXXX school year. They also stated that they were considering outside placement for the Student at XXXX (Ex. D-23).

The CSE was scheduled to convene to make recommendations for the Student’s educational program for the XXXX school year. The Parents requested that the meeting be rescheduled during the weeks of either XXXX, to allow completion of a private XXXX evaluation. They also stated their intention to record the meeting and to be accompanied by an attorney (Ex. P-R).

At a CSE meeting held on XXXX for the XXXXschool year, the CSE recommended continued placement for the Student in XXXX (Ex. D-27 at pp. 4, 16).

The CSE continued to recommend Supplementary Aids and Services, Program Modifications, and Accommodations including XXXX. The Student was found to be ineligible for XXXX. The CSE also recommended testing accommodations for all exams to include XXXX (Ex. D-27 at pp. 16-19).

The IEP for the XXXX school year contained annual goals in the areas of XXXX (Ex. D-27 at pp. 13-16). The CSE minutes reflect that the Student was due for re-evaluation during the XXXX school year (Ex. D-27 at p. 4). The Parents provided written consent for testing on XXXX, and advised the CSE that they reserved their right to provide copies of reports of privately obtained evaluations to the CSE as part of the re-evaluation (Exs. D-26 at pp. 2-3; D-27 at p. 4). The Parents ultimately determined to unilaterally place the Student at XXXX for the XXXX school year (Exs. P-G, P-J, P-K, P- N, P-O).

At the time of her testimony, XXXX was the District’s Director of Special Education and Support Services. She holds permanent New York State certifications in the areas of Elementary Education N-6, English grades 7-9, Special Education, and as a School District Administrator. XXXX taught a self-contained class in the District for 3 years prior to becoming the District’s Chairperson for XXXX Special Education. She thereafter served as the District’s Supervisor of XXXX Special Education and transitioned to the Director of Special Education and Support Services. Prior to her employment in District, she was a teacher in regular and special education assignments in another public school for 19 years. She also served as a teaching assistant and a special education teacher through XXXX for students with therapeutic needs and issues with behavior and regulation. She is considered to be highly qualified under the No Child Left Behind Act (Tr. pp. 98-104).

XXXX testified that the Student XXXX. The XXXX was described to XXXX by the Parents as XXXX. The Student was placed in XXXX in XXXX and was provided with XXXX (Tr. pp. 106-109, 117, 218, 3624; Ex. D-24 at p. 20).

XXXX confirmed that the Parents referred the Student to the CSE in XXXX, prior to the time she was employed as the District’s Director of Special Education and Support Services. The Parents signed consent for evaluation in XXXX. The District requested a XXXX evaluation from XXXX, but they did not have someone that was able to XXXX. XXXX referred the District to XXXX, but the person who was to conduct the evaluation had left the country and did not return for several months. During that time, the Student continued in XXXX, and the District kept in contact with the Parents. When the evaluator returned to the United States, the Parent took the Student to be evaluated at XXXX. The District found out after the evaluation that the Student received an evaluation with XXXX. By the time testing was conducted, the Student was unable to XXXX. Moreover, at the time he was tested, he had XXXX (Ex. P-VVV at pp. 6-7). The CSE convened with the Parents in XXXX and determined that there were sufficient questions raised in the evaluation that warranted an ineligibility finding at that time. The Parents requested a XXXX evaluation and the CSE agreed. The District again sought the evaluation through XXXX but upon the Parents’ objection, the District and Parents agreed to contract with an outside evaluator through XXXX and XXXX was retained to conduct the evaluation (Tr. pp. 109-113, 218-219, 4348-4350; Exs. P-QQQ, P-RRR, P- VVV).

The CSE did not convene to consider the results of XXXX’ testing until XXXX (Tr. pp. 113-114, 221-223; Ex. P-JJJ). The CSE also considered a letter dated XXXX from XXXX, the Student’s XXXX, who identified the Student’s diagnoses as XXXX. XXXX also indicated that he was treating the Student with XXXX, and recommended that the Student receive weekly XXXX (Ex. P-MMM).

XXXX testified that the CSE classified the Student as XXXX and recommended placement in XXXX. Midway through the XXXX school year, the Student began to XXXX and through consultation with the Parents and the Student’s team, he was moved to XXXX on an interim basis. Although there was a CSE meeting scheduled to occur prior to the move, it did not take place as XXXX was in a car accident. An attempt was made to reschedule the meeting but there came a point that annual reviews were beginning to be held, and the meeting was not rescheduled. The Student reportedly adjusted well to XXXX. XXXX testified that it is not typical to move a student’s program without a CSE meeting, but that the Regulations permitted modifications to an IEP with no meeting. She stated that the Parents were very much in favor of the Student’s movement into XXXX. However, she confirmed that a Prior Written Notice was not provided to the Parents and there was no written consent by the Parents to implement the change (Tr. 117-120, 225-227, 415-418; Exs. P-BBB, P-FFF, P-GGG, P-HHH, P-III).

XXXX testified that the District made no educational decisions about the Student without the Parents’ knowledge or consent, including the move from XXXX to XXXX, from XXXX. She stated that “every single decision we made was made in concert with the [Parents],” and the District did nothing without speaking with them and obtaining their agreement. Moreover, that the conversations always included information from the Student’s teachers and service providers (Tr. pp. 4364-4370).

XXXX testified that the CSE recommended placement for the Student for the XXXX school year in a XXXX class at XXXX. She stated that the Student did not do well and that there were issues around XXXX. The District started to XXXX (Tr. pp. 120-123; Exs. P-TT, P-XX). XXXX testified that the Parent met with the special education teacher XXXX, XXXX, and that XXXX was using XXXX, similar to what the Parents were using with the Student at home. XXXX testified that the Parents consulted with the special education teacher and showed her and the entire staff at XXXX how to XXXX. XXXX was also asked by the Parents to XXXX the Student while at XXXX (Tr. pp. 122-124, 227-231, 406-408; Ex. P-HH).

The Parent testified that on one occasion early on during the Student’s XXXX grade year, his mother was called to school, where she found the Student XXXX“with the principal, his teacher, and the school counselor. The Student was XXXX. The Parent XXXX (Tr. pp. 3665-3668).

An XXXX was conducted and a XXXX was in place for the Student during the XXXX school year, his XXXX grade year. The XXXX and XXXX were created in or about XXXX (Tr. 231-232; Ex. P-CCCC). XXXX testified that the CSE determined to change the Student’s placement during the XXXX school year back to XXXX class at XXXX. She stated that the Student XXXX, but did better in the smaller environment. XXXX were used with much less frequency once he moved to XXXX class, as his XXXX changed significantly. The use of XXXX was not written in the IEP. XXXX stated that the Parents were working with a XXXX specialist, and the Parents asked the District to use XXXX. She also stated that the District’s practices were consistent with New York State guidance documents, and that if XXXX were written into an IEP, there must be documentation and approval at the State level (Tr. pp. 125-127, 232-239, 250-252, 3669-3673; Exs. D-8, P-TT, P-XX).

XXXX testified that for the XXXX school year, the CSE recommended continuation for the Student in XXXX, which necessitated a move back to XXXX. She explained that at the time, the XXXX for XXXX grades was located at XXXX, and that the XXXX for XXXX grades was located at XXXX. XXXX testified that the XXXX. In addition, this Student had XXXX. The Student was mainstreamed for “XXXX,” also known as specials, and for lunch and recess. Either the teaching assistant or the classroom aide accompanied the students to specials (Tr. pp. 131-134, 248; Ex. D-12).

XXXX testified that the Parents and the Student liked XXXX, which consisted of a more “diverse community,” but that the Student transitioned to XXXX for the XXXX class. She stated that at the CSE meeting which was held at the end of the XXXX grade, there was discussion about continuing an XXXX for the XXXX grade, but the CSE determined to see how the Student was doing in the XXXX, before determining whether to XXXX (Tr. pp. 135-136, 245-248, 371; Ex. D-12 at p. 7).

XXXX testified that the Student was suspended from school in XXXX for a period of two days for an incident in which the Student kicked off his shoe during a XXXX by his special education teacher, XXXX, which hit XXXX in the eye. The Principal, XXXX, determined to suspend the Student for 2 days. The CSE did not convene after the incident and met next at the Parents’ request, on XXXX, at which time the Parents raised a number of concerns. XXXX stated her belief that the District’s collective relationship with the Parents changed after the Student’s suspension (Tr. pp. 137-138; Ex. D-13).

XXXX testified that the Parents raised an issue with XXXX and their concerns regarding the Student’s safety on the bus, emanating from XXXX issues between this Student and other students, resulting in the Parent providing transportation for the Student to school. XXXX stated that she told the Parents at the meeting that she would collect more information about the bus issue and if it became a CSE or a disability issue, the CSE would reconvene and if necessary, make changes to the IEP based on the information collected (Tr. pp. 139-140; Ex. D-13 at p. 2). The Parents also sought the employment by the District of a XXXX. XXXX replied that XXXX addressed school-based issues, but that if the Student raised issues regarding XXXX the Parents would be notified (Tr. pp. 140-141; Ex. D-13 at p. 2).

XXXX stated that the Parents also sought to include a “manifestation clause” regarding suspensions into the Student’s IEP, which she explained was not necessary since it is governed by procedural safeguards (Tr. pp. 141-142, 255-256; Ex. D-13 at p. 2). The Parents also raised concerns about the Student’s safety in the XXXX. XXXX stated that in anticipation of the CSE meeting checklists were created that were used by XXXX and the Student’s school psychologist, XXXX, in conjunction with classroom observations conducted by them prior to and after the CSE meeting (Tr. pp. 142-151, 157-158, 390-391; Ex. D-21). XXXX also reviewed her data on the Student’s classroom incidents and classroom performance during the XXXX school year, and stated that school staff were not seeing the same XXXX issues in school that the Parent was reporting having occurred at home (i.e., XXXX) (Tr. pp. 259-262, 377-384; Exs. D-13 at p. 2, D-31). XXXX stated that the Parent became agitated and accused XXXX of lying about the sneaker incident and stated that she could no longer trust the school. XXXX ended the meeting after 45 minutes because she believed the Parent was not treating the teacher respectfully. She offered to reconvene the meeting at another time and the Parents did not request another meeting (Tr. pp. 159-162; Ex. D-13 at pp. 1-2). XXXX also testified that in an e-mail dated XXXX, the Parents rescinded all authorizations for the District to contact the Student’s private providers (Tr. pp. 168-169, 3897-3898; Ex. D-22).

XXXX testified that for the remainder of the Student’s XXXX grade year, he continued to make measurable academic progress and that although XXXX was not perfect it was “pretty good.” She stated that within the confines of the very structured XXXX, he was not suspended again and he made measurable progress in curriculum areas. She stated that only XXXX were used during the XXXX school year and that the last XXXX occurred in XXXX. She stated that the Student scored proficient on the

XXXX. A review of the Student’s progress as of XXXX shows that the Student scored in XXX. On state tests in ELA and Math, the Student scored at a Level 3. XXXX stated that the Student was XXXX and his progress was “remarkable.” XXXX also acknowledged that the Parents “did a lot at home” and provided an “enriched environment” for the Student (Tr. pp. 162-168, 262-263; Exs. D-15, D-31, P-EEEE at pp. 1-53, 72-73).

XXXX testified regarding the annual review that was held on XXXX for the XXXX school year. She stated that the Parents submitted for review by the CSE privately obtained evaluations, including a XXXX (Ex. D-24 at pp. 17-55), a letter from XXXX dated XXXX (Ex. D-24 at pp. 15-16), and an XXXX evaluation dated XXXX by XXXX (Ex. D-24 at pp. 9-14). The CSE also reviewed results of District testing using the XXXX administered by XXXX on XXXX (Ex. D-24 at pp. 2-4) and the Student’s XXXX grade report card (Ex. D-24 at pp. 5-8). XXXX confirmed that each of the reports was reviewed by the CSE. She stated that the results on the XXXX were consistent with what the CSE knew about the Student as a learner and consistent with his report card for the XXXX grade. She noted that the Student historically had difficulty with XXXX subtest in both District and private evaluations, and noted that although the score fell technically within the average range, it was not a strong score. She also noted that the Student’s score in XXXX was much closer to the mean and was solidly average. He also scored in the average range in XXXX and within the above average range in XXXX, although his XXXX was in the below average range (Tr. pp. 169-171; Ex. D-24 at pp. 2-4). XXXX also testified that the Student’s most current report card was reviewed by the CSE (Tr. 171-172; Ex. D-24 at pp. 5-8).

XXXX testified regarding the CSE meeting held on XXXX for the XXXX school year. She stated that the Student’s mainstream art teacher, XXXX, was “quite enthusiastic” about the Student. She stated that his participation in the art class, which consisted of 20 students, was pretty typical without XXXX and that he positively participated in an elective art class that took place prior to the school day for an 8-week period (Tr. pp. 173-174, 3814; Ex. D-27 at p. 3). The CSE also considered the results of a private XXXX evaluation performed by XXXX, who participated in the CSE meeting by telephone and reviewed the Student’s test results (Tr. pp. 174-177; Ex. D-27 at p. 2). XXXX testified that the test results obtained by XXXX were consistent with the results of the Student’s other testing. She saw similar strengths and weaknesses in the Student’s cognitive profile. His XXXX were much stronger than his XXXX skills. The Student’s XXXX skills across assessments typically fell within the low average to average range. The Student’s XXXX skills were always an area of strength, although there was some variability amongst scores. He displayed the same weakness in XXXX that had been seen over time. XXXX also identified difficulty with XXXX. In addition, XXXX reported on the XXXX, noting XXXX. An administration of the XXXX one year later, when the Student was attending XXXX, yielded similar results (Tr. pp. 174-177, 3758-3763; Ex. D-24 at pp. 24-29, 39-41, 44-45, D-26 at pp. 17-20).

XXXX also testified that XXXX, a private therapist, spoke at the meeting about XXXX therapy that he was conducting with the Student. He spoke about XXXX. XXXX described the XXXX which were available in her XXXX, such as XXXX. The private evaluation conducted by XXXX confirmed that the Student would benefit from XXXX (Tr. pp. 177-179; Exs. D-24 at p. 14, D-27 at pp. 1-2).

XXXX stated that the CSE reviewed a letter from XXXX which recommended a small setting with consistent structure and constant monitoring with adult supervision for the Student. XXXX stated her agreement with XXXX’s recommendation and her belief that the CSE’s recommended program offered what XXXX recommended (Tr. p. 179; Exs. D-24 at pp. 15-16, D-27 at p. 2). XXXX reviewed schools that were recommended by XXXX for the Student’s placement and disagreed with their appropriateness for him. She believed that the XXXX was not appropriate for any student who needed XXXX. She also did not believe that the XXXX was appropriate, as it was far more geared to students with XXXX. She believed that the same was true about XXXX. She also stated that the placements were overly restrictive as they were located outside of New York State, they served only a disabled population, students did not have access to general education programs and peers, and they were not in alignment with the New York State curriculum (Tr. pp. 179-187; Ex. D-24 at pp. 15-16).

XXXX testified regarding XXXX’s belief that in a XXXX, the Student may XXXX, which would worsen his condition (Ex. D-24 at p. 15). However, XXXX testified that the private schools that he recommended for the Student’s attendance also contain XXXX (Tr. pp. 2509-2510). XXXX stated that the Parents’ allegations of bullying related to another special education student in his XXXX class. She also stated that whenever the Parents alleged that the Student was being bullied in school, the building principal investigated. District staff did not see a pattern of bullying, although the Student did have occasional altercations with other students. XXXX also stated that the XXXX. She stated that XXXX, and there are “teachable moments.” The teacher addressed and XXXX (Tr. pp. 187-188, 392-397; Ex. D-24 at p. 15).

XXXX testified that the CSE reviewed and updated present levels of performance; progress in XXXX, in response to XXXX’s diagnosis of the Student with XXXX (Ex. D-24 at p. 45); XXXX; that the Parent updated the CSE with the Student’s physical development; they reviewed goals; and they discussed the bus issue that the Parents raised at the previous CSE meeting held on XXXX (Ex. D-13 at p. 2). XXXX and the District Clerk, who at the time oversaw transportation, interviewed the bus monitor, who stated that she did not see the Student bullied on the bus, and described this Student as the aggressor on the bus. XXXX relayed the information to the Parents at the time of the interview and again at the CSE meeting. XXXX stated that the CSE met with the Parents for a period of 3 hours on XXXX (Tr. pp. 188-190, 198-199, 384- 386, 389, 397-400).

XXXX stated that XXXX addressed the Student’s progress in XXXX, and stated that although he was not yet meeting grade level expectations, he made consistent progress. He progressed from XXXX which represents more than a year’s growth in one school year. She stated that although the District wanted to see students reach a XXXX by the end of the XXXX grade, the Student was XXXX below the District’s exit outcome for that level. The Student XXXX (Tr. pp. 190-192).

XXXX also testified that the CSE discussed the Student’s functioning in XXXX, which was “pretty much” at grade level, and that he was making good gains. In terms of XXXX, he made progress, although XXXX remained an area of weakness. Every goal was discussed by the CSE, and was based on the staff’s observations of the Student as a learner, as well as taking into account XXXX’s and XXXX’s work with the Student. Neither the Parents nor the private providers expressed any disagreement with the appropriateness of the goals and all were given an opportunity to assist in their development. XXXX stated her belief that the goals were appropriate and focused on the Student’s needs and skills (Tr. pp. 192-194; Ex. D-27 at pp. 13-16).

XXXX stated that the CSE recommended continuation of the Student’s program from the XXXX school year. Specifically, the CSE recommended the Student’s continuation XXXX, together with XXXX. Additionally, the Student was recommended to receive XXXX. XXXX stated that there is a XXXX who consults with the District as needed related to the students in the program. XXXX continued to teach the XXXX for the XXXX school year (Tr. pp. 194-197; Ex. D-27).

XXXX stated her familiarity with XXXX and stated that the school serves a population of primarily students with learning disabilities. They do not purport to be a XXXX program nor do they have XXXX (Tr. pp. 198-200). She stated that the District conducted the Student’s triennial evaluation during the XXXX school year and a CSE meeting was held on XXXX to make recommendations for the Student for the XXXX school year. The Student’s projected date for reevaluation was XXXX (Exs. D-26, D-27 at p. 1). As part of the triennial review, the Parents submitted a number of documents for the CSE’s consideration in recommending a program for the XXXX school year. Some of the documents contained information with respect to the Student’s functioning and performance at XXXX during the XXXX school year. XXXX reviewed a report by XXXX, the Student’s XXXX, who worked with the Parents and Student in 2010 and thereafter worked with the Student starting in or about October 2012. He also met with the family periodically and followed the Student’s progress at XXXX via e-mail strings and direct communications with staff. He was also in close contact with XXXX who administered XXXX. XXXX expressed that it was gratifying to see how far the Student had come over the past three years (Tr. pp. 198-203; Ex. D-26 at p. 60).

As part of his XXXX Summary, XXXX stated that the Student’s year at XXXX was constructive, and that they had an astute sense of when and how to intervene with time- outs, supportive interventions, and periodic application of a half-day program (Ex. D-26 at p. 60). XXXX testified regarding information she learned at the CSE meeting for the XXXX school year about the Student’s performance at XXXX during the XXXX school year. There was an extensive discussion at the CSE meeting regarding the Student’s attendance for half-days at XXXX during the XXXX school year. XXXX testified that when the Student became XXXX, the Parent would pick him up from school and he would only attend for a half day. She stated that XXXX, XXXX’s Dean of Students, and the Parent stated it was the intent to keep the Student at school when he was successful, but not to have him remain if he was not in a place where he could XXXX. They estimated that the half-day program was used between 20 and 25 times, and it was typically used for a five-day period, and at its longest there was a ten-day stretch when the Student went home. Half days were used in conjunction with teacher- imposed breaks when the Student was not XXXX. During the breaks, the Student often visited XXXX in her office to draw or play. If XXXX was not available, the Student would go with another staff member for a walk or shoot basketballs together, characterized by XXXX as XXXX activities. XXXX stated that no XXXX support was provided during that time and there was no access to a XXXX or XXXX during those periods. XXXX is a speech and language therapist (Ex. P-AAAA at p. 1). XXXX testified regarding her disagreement with the manner in which XXXX used XXXX, in that there was a danger of reinforcing the behaviors that one is trying to eliminate (Tr. pp. 204-212).

XXXX stated that the class size at XXXX was XXXX. The class size recommended for the Student for the XXXX school was XXXX, meaning that there would be no more than XXXX, together with XXXX adults (Tr. pp. 213-215). XXXX also testified that none of the Student’s private providers (i.e., XXXX, XXXX, XXXX, or XXXX) contacted the District to inquire about his performance while in attendance at the public school (Tr. pp. 203-204, 213-215). Finally, XXXX testified that she was aware that the Parents provided information to XXXX about a concept referred to by them as a XXXX which was authored by a veterinarian. XXXX reviewed the articles provided by the Parents and considered them in the realm of XXXX (Tr. pp. 216, 4363-4364).

XXXX is a Speech and Language Pathologist for the District. Her job duties include provision of speech and language therapy to students, conduct of evaluations, attendance at CSE, RTI, and IST meetings, writing IEPs, consulting with teachers and parents, and running groups. She is mostly employed at XXXX, but has worked at other XXXX schools and the XXXX school. At the time of her testimony, she was employed by the District and at another public school district for a total of 14 years (Tr. pp. 424- 427). She has a Certificate of Clinical Competence in Speech and Language Pathology. She also attends continuing education courses as part of maintaining her certification by the American Speech and Hearing Association (“ASHA”) (Tr. pp. 428- 430).

XXXX became familiar with the Student in his XXXX year when his Parents were looking for non-mandated speech and language services. She also evaluated him as part of his initial referral to the CSE. The Parents told her that the Student did not have XXXX (Tr. pp. 430-433).

XXXX evaluated the Student in mid to late XXXX using standardized testing at the request of the District’s then current Director, XXXX, to obtain a baseline. XXXX was concerned that the scores were not quite valid for XXXX, and that the scores should be interpreted with caution, as XXXX (Tr. pp. 433-434).

The Student was administered the XXXX and the XXXX. The Student scored extremely low on his XXXX score and his XXXX score. He scored within the average range on the XXXX. His XXXX standard score was within the average range. His XXXX were developmental in nature, which means they were expected of a child of his age (Tr. pp. 433-434; Ex. D-4 at p. 3).

XXXX stated her normal practice upon receiving an IEP for a student for whom she would be providing XXXX was to create an index card with the student’s name, their grade, the frequency of services, each of their goals, the frequency necessary for mastering the goal, and indicate whether the student receives moderate, intensive, or no assistance in reaching the goals. XXXX began to provide XXXX to the Student at the beginning of the XXXX school year. He received services on both a push-in basis with his class and in a small group on a pull-out basis. XXXX kept daily progress notes of her sessions with the Student (Tr. pp. 440-444; Ex. D-19).

XXXX worked with the Student on XXXX. She used various toys, games, manipulatives, social stories, literature books, SMART Board activities, educational “kinesiology types of things” to wake up his brain and get him ready for learning, getting him moving using bean bag toss games, stimulus cards and stimulus items. She used different types of modalities to try to engage her students and keep them motivated. XXXX kept track of what she worked on with the Student, the number of trials, and the Student’s rate of success on the trials. XXXX reviewed each of the sessions she conducted with the Student, both as a push-in into his special class and on a pull-out basis, in detail. A number of the trials corresponded directly to goals in the Student’s IEP for the XXXX school year. Other trials related to XXXX. If the Student’s XXXX during any of the push-in sessions, a number of strategies were used to XXXX, such as XXXX. In the push-in sessions, the teaching assistant or an aide would help with any student who had XXXX. XXXX testified that the Student sometimes had some XXXX, but nothing was extreme and there was nothing that couldn’t be redirected. She stated that his XXXX was manageable, meaning he was able to be refocused or redirected and he was able to complete the tasks. When the Student’s XXXX varied, she used a strategy she described as “whole body listening,” which involved use of a chart with pictures dealing with listening with one’s eyes, ears, mouth, hands, feet, and brain. She explained that listening with one’s eyes is making sure you are looking at the person; listening with ears is making sure that one’s ears are turned on and ready to listen; listening with one’s mouth means that mouths should be quiet; listening with one’s hands and feet means that hands and feet should be quiet and still; and listening with one’s brain means that brains should be turned on to what the person is saying (Tr. pp.

445-461, 465-490, 494-495, 558-559; Ex. D-19). She stated that she did not always include in her session log each time the Student needed XXXX (Tr. p. 570).

XXXX testified that during the push-in sessions, the Student demonstrated good participation, he came up with great ideas and good solutions, and demonstrated that he understood what was being taught during the lessons, including XXXX. However, in the “heat of the moment,” he and other students could not control themselves, and they were not as mindful of the strategies that they learned. She described the XXXX as “a work in progress” in that first the skills are taught; that activities were then assigned to see whether they demonstrate understanding of the skill; and then role playing activities are employed to try to carry over the skills. She stated that carryover is difficult, and that the Student’s carryover skills were inconsistent (Tr. pp. 498, 576-578).

XXXX stated that to her recollection the Student never had any physical altercations during her sessions, she never observed the Student being bullied by other students, and she never had any reports from any other District staff member that the Student was being bullied by other students. She also stated that the Parents brought up concerns at either CSE meetings or parent/teacher meetings that the Student was being bullied and that he was not safe at school. She also testified that she and other District representatives did not believe that the Student was unsafe, given that he was in a highly structured class and that he was monitored, even in lunch and recess. XXXX stated that the Student seemed happy and engaged in school; that he seemed to enjoy the other students; and he seemed happy to attend groups and happy with his peers when she saw him at lunch bunch, in the hallway, or in her room (Tr. pp. 498-499, 505- 506).

XXXX testified that she never witnessed the Student XXXX. She did not recall whether she ever observed the Student XXXXt. She did not see the Student exhibiting XXXX in school. She stated that the he generally appeared happy; he seemed happy to be in school; he was engaged in activities; he seemed to have friends; and he seemed to talk to the other students (Tr. p. 516).

XXXX testified that the Student took the XXXX in the XXXX grade and that he no longer met the criteria to receive XXXX. She stated that she was not surprised that he tested out, in that he was doing well academically; he was getting good grades on his report card; that same year he received a three on the New York State math and reading tests; and that by the end of the school year, he achieved all of his XXXX goals (Tr. pp. 516-518).

XXXX reviewed the results of a speech and language evaluation conducted by XXXX (“XXXX”) on XXXX, which was obtained privately by the Parents. She testified that the results of independent testing in XXXX were expected, given her observation of the Student’s performance in school on his XXXX goals during that same period. XXXX stated that the Student had some relative strengths, relative areas of average abilities, and some weak areas. She also noted that the private evaluator recommended XXXX to continue at the frequency listed on the Student’s IEP. Results of her testing in XXXX could not be compared with test results contained in the XXXX evaluation, although XXXX stated her belief that the Student made “nice progress” given that when he entered XXXX “XXXX” and then he could perform in the average range on many of the subtests administered by XXXX. The XXXX evaluator concluded that based on the XXXX, the Student’s overall XXXX were in the average range. However, the evaluator also stated that XXXX skills may take five to seven years to XXXX. The Parent did not agree. The Parent also did not agree with XXXX’s characterization of the Student as “XXXX” (Tr. pp. 518-531, 3753-3758, 3930-3932; Ex. D-20 at pp. 8-9).

XXXX also testified regarding her participation in the CSE meeting held on XXXX for the Student’s annual review. She stated her recollection that both XXXX and XXXX participated in the meeting, but that neither one contacted her regarding the Student’s performance in XXXX grade prior to the CSE meeting. She stated that discussions at the annual review included that the Student was doing well academically but there was some concerns with XXXX; that he met his XXXX goals; and that he seemed happy to be at school. The issue of bullying was also discussed. XXXX, the District’s school psychologist, stated that she spoke to the Student about bullying; that the Student thought bullying was where “they tell you [that] you can’t play”; and that the Student said that most of the bullying took place at the XXXX after school program, which was not affiliated with the XXXX School. 4 XXXX confirmed that there were incidents of bullying at the XXXX, and at least on one occasion XXXX met with the Student as a follow-up to what had happened. The XXXX is a program that parents pay for privately. Some students at XXXX attend the after-school program. XXXX testified that concerns over the Student’s XXXX were also discussed and someone may have stated that XXXX. She believed that the problem decreased or they were keeping track of it at school (Tr. pp. 531-535, 3814-3816, 4357-4358).

XXXX also summarized the Parents’ opinion about the Student’s experiences in XXXX grade. They stated their belief that the Student was XXXX. XXXX stated that she did not see the Student exhibit any XXXX in school, and that he did not XXXX to her or any of the other teachers or clinicians in the District (Tr. pp. 535-536).

XXXX testified that additional evaluations were reviewed at the CSE meeting for the Student’s annual review for the XXXX school year, including a private XXXX Evaluation conducted by XXXX (Ex. D-24 at pp. 17-55). XXXX assessed the Student, in part, in the area of XXXX, by administering the XXXX and the XXXX, even though the Student was previously privately tested by XXXX in the area of XXXX on XXXX, a few months earlier (Exs. D-20, D-24 at pp. 21, 26, 30-31). XXXX did not administer the same tests as XXXX’s evaluator (compare Exs. D-20 at pp. 1-2 and D-24 at pp. 22-23). XXXX summarized the results of XXXX’s testing (Tr. pp. 537-540). She also reviewed each of the goals that were developed at the CSE meeting in the area of XXXX based on the Student’s performance in her sessions, the private and District evaluations that were submitted, and his performance in the classroom, and why they were selected. She stated that at the meeting, the Parents, XXXX, and XXXX were given an opportunity for input in the development of the goals, but they had not expressed any concerns about the XXXX, and did not suggest additional goals in that area (Tr. pp. 541-547; Ex. D-27 at pp. 2, 14-15).

XXXX stated her belief that the programs and supports recommended for the Student in the IEP for the XXXX school year would enable him to make meaningful progress. She stated that the Student would have continued in the same class that he was in, that XXXX would continue, and he would receive XXXX and XXXX. She also stated that academically, the Student made progress in the program in the prior year which enabled him to XXXX and to achieve a score of 3 on the New York State math and ELA assessments. In addition, he appeared to be happy, he had friends, and he seemed engaged (Tr. pp. 547-548). XXXX described the XXXX class as a small class that is highly structured; highly supported; that it meets the needs of the Student; that it is multi-grade level; it involves a high level of support; it involves XXXX; it involves the XXXX; and the class is designed to help the children learn skills to make them more successful academically (Tr. pp. 627-628).

XXXX testified that in the area of XXXX, the Student was able to demonstrate good understanding, participate well, make good connections, and provide good solutions. However, sometimes XXXX, and he was inconsistent in XXXX (Tr. pp. 587- 591). She agreed that the Student continued to need the same level of XXXX during the XXXX school year. She stated that during the XXXX school year, the Student received XXXX; and that the Student participated in the XXXX (Tr. pp. 600-601, 3749- 3750; Ex. D-18 at pp. 3-7).

XXXX also testified regarding her administration of XXXX, as part of the Student’s reevaluation. She compared the results of XXXX conducted by XXXX one year earlier with her testing and the results were mixed (Tr. pp. 548-556; Exs. D-20, D- 26 at pp. 31-35).

XXXX was the Student’s XXXX special education teacher of the XXXX for the XXXX school year. She testified that she followed a XXXX curriculum to build skills such as XXXX. She met once weekly with the XXXX and XXXX to discuss all of the students in the class. She also met with grade level teachers for classes into which the students mainstreamed (Tr. pp. 690-697, 709).

XXXX began to work in the District in XXXX. Prior to that time, she was employed by XXXX. All of her teaching assignments involved students with XXXX. She is certified in childhood education and students with disabilities, grades 1 through 6, with an annotation in severe and multiple disabilities. She participates in professional development courses mandated by the District and she has taken outside training in behavior management. Prior to her employment in the District, she was trained in the XXXX, which she described as a three-day training originating from XXXX that gives insight into XXXX, and on the final day provides techniques for XXXX, should that be necessary. XXXX received training in XXXX during the XXXX school year and a refresher course during the XXXX school year as an employee of XXXX. She is considered highly qualified under the No Child Left Behind Act. In addition to her employment in the District, she provides XXXX (Tr. pp. 697-703, 1082-1085, 4048- 4049, 4051).

XXXX described the XXXX classroom. She XXXX. The classroom is organized to foster independence, and she has an eye as to whether students are appropriate for mainstreaming. There is XXXX. During the XXXX school year, there were 7 students in the class, together with XXXX, a teaching assistant, and a teacher’s aide. All of the students in the class had XXXX. All of the students could access the curriculum with modifications. None of the students were focusing on XXXX. It was an academically- focused classroom with XXXX (Tr. pp. 709-715).

The Student worked on XXXX using XXXX. He also used an XXXX. The Student was able to keep pace with the rest of the XXXX grade classes. XXXX was taught in a 2:1 or 1:1 ratio. Students were grouped according to ability level. During the XXXX grade, the Student progressed in XXXX, which XXXX described as “huge growth.” The Student’s XXXX increased from XXXX (Tr. pp. 716-720, 743-745, 759- 763; Ex. D-28 at p. 1).

In the area of XXXX, the Student progressed from XXXX (Tr. pp. 763-766; Ex. D-28 at p. 1).

A XXXX assessment was administered to obtain a baseline as to where the Student functioned in that area in XXXX. XXXX estimated the XXXX to be at a XXXX grade level, based on the XXXX. The Student had XXXX, which was a “great starting point.” XXXX stated that the XXXX was “a wealth of information” with respect to the XXXX that the Student needed to be taught. The Student was taught XXXX in a group of 3 students and he received one-on-one conferences to talk about skills specific to his XXXX (Tr. pp. 775-787, 789-790; Ex. D-29).

The Student had a XXXX, which contained teaching points applicable to him. It included XXXX (Tr. pp. 790-798; Ex. D-30).

XXXX compared a XXXX with his initial XXXX from XXXX, and stated that the Student’s XXXX (Tr. pp. 798-807; Ex. D-30 at p. 8).

XXXX testified that XXXX was a relative strength for the Student, he was performing on grade level, and he was able to use the XXXX grade curriculum without modifications (Tr. pp. 817-818).

During the XXXX school year, the Student XXXX, which XXXX stated could be accommodated in her classroom. She stated that XXXX were expected and that was why he was placed in a XXXX classroom. Such XXXX included XXXX (Tr. pp. 822- 823).

XXXX testified that there were a number of strategies that were in place in her classroom to address XXXX. With respect to XXXX. She also provided students with work at their appropriate instructional levels to keep them readily engaged. In addition, the class had XXXX (Tr. pp. 823-826).

XXXX described the XXXX which she used in the classroom in XXXX (Tr. pp. 826-830).

XXXX testified that by the end of the school year, the Student was able to XXXX. He sometimes XXXX (Tr. pp. 832-835, 1681-1682).

XXXX stated that in the beginning of the year, the Student experienced situations where, for his XXXX, but the situations were rare and by the end of the year, he did not need XXXX. She testified that she XXXX (Tr. pp. 835-842, 891-893, 4067-4070, 4073, 4080-4081, 4101).

XXXX testified that in the beginning of the year, the Student engaged in XXXX (Tr. pp. 846-855; Ex. D-31).

XXXX testified regarding the instances when the Student needed XXXX during the school day. On XXXX. He completed his work 16 out of 17 days (Tr. pp. 852-854; Ex. D-31 at p. 1).

In XXXX. The Student completed his work 15 out of 17 days (Tr. pp. 855-859, 1097-1098; Ex. D-31 at p. 1).

The Student did not XXXX and completed his work 16 out of 16 days. He also did not require XXXX, and he completed his work 15 out of 15 days (Tr. p. 860; Ex. D- 31 at p. 2). In XXXX, the Student did not require XXXX, and he completed his work 14 out of 17 days. In XXXX, the Student required XXXX and completed his work 15 out of 16 days (Tr. p. 861; Ex. D-31 at p. 3). There were no other situations that required XXXX for the rest of the school year. The Student also completed all of his work during the months of XXXX (Tr. pp. 864-866, 1167-1172; Ex. D-31 at pp. 3-5).

XXXX testified that, although the Student needed XXXX, during the rest of the school year, he was typically a student who needed XXXX. But the large majority of the time he was getting his work done and was able to XXXX, given the supports of the small classroom. She described XXXX. The majority of times, he was able to complete the work that was assigned to him. There were some days when he had difficulty, but the large majority of the time he completed all his work (Tr. pp. 4226-4228).

XXXX also testified that the Student’s XXXX did not interfere with his learning, because XXXX allowed him to access the curriculum. Had those not been in place, she could safely say XXXX would have prevented him from accessing the curriculum (Tr. pp. 4228-4229).

XXXX testified that she did not witness the Student being bullied by any students during the XXXX school year. She stated that although he had difficulty with grade level peers, it was typical of all students that age, since XXXX. The Parents made XXXX aware of their concerns through the home-school log, indicating that he had been slighted, not included, or teased, but she didn’t perceive it as an ongoing problem. She stated that she always investigated the Parents’ concerns and if there was a legitimate concern, she addressed it with the other student. XXXX was able to pinpoint when the Parents believed it was occurring, which was during recess. The recess aide was alerted and she reported to XXXX after recess and lunch if anything negative occurred. She also directly asked the Student daily upon his return to the classroom whether there were any problems with recess and whether there was any bullying. She stated that he typically responded “no” 5. She also observed the students at recess once a week and spoke with the aide about strategies that she was using, what she wanted her to continue, and strategies that she wanted her to start using (Tr. pp. 866-870).

XXXX stated that when the Student was with her, she did not perceive anything that he was encountering in his XXXXX grade year to be what she considered bullying. She stated, however, that XXXX might tease one another or treat each other “in not the best way,” and if a student was being inappropriate with another student, using inappropriate words or not sharing or being physically aggressive and she witnessed it, depending on the severity of the situation she would immediately intervene, brainstorm a solution together, what one can say or what one should do, and she would either XXXX, XXXX, indicate that the Student expressed to her that he has “lots of friends” and he was bullied “once or twice” (Ex. D-17 at p. 9).

address it directly with the other student or with that student’s teacher. She stated that she recalled intervening on the Student’s behalf to help him deal with the typical XXXX grade social relations, but she did not remember a specific incident (Tr. pp. 1645-1648).

XXXX testified that if there was a parent report of bullying, teasing, and taunting, she would investigate the report by speaking with the child and any staff who were there who could have observed the incident. She would also speak with “credible children” who were there. She would work to resolve the conflict with the student who was responsible for doing that inappropriate action or saying that inappropriate word and then let the student who was on the receiving end know of what the consequence was for that student. If it merited more significant action if it was a severe offense, she would tell XXXX who would guide the situation from there (Tr. pp. 1661-1662).

XXXX described the Student as having a” wonderful work ethic” and when he XXXX, he could work and produce a very high quality product. He was reflective and had a strong interest in learning. She described him as a “sponge” and stated that he had XXXX which allowed him to keep pace with the general education curriculum. He always wanted to keep pace with the other XXXX graders and would inquire regarding the work they were completing. He constantly was working on developing XXXX. Some times were more successful than others (Tr. pp. 871-872).

Daily logs went home between XXXX and the Parents and it was a large part of their communications. Through the log, the Parents would know XXXX. The Parents used the back page to talk about the night and whether the Student was XXXX. XXXX stated that the Parents’ comments were always very detailed and helpful, and she appreciated that. Her understanding was that the Student XXXX at home, but it was XXXX. XXXX at home were an ongoing challenge and an ongoing concern (Tr. pp. 774-775, 872-874; Exs. D-35, D-36, D-37, D-38, D-39, D-40, D-41, D-42, D-43, D-44).

XXXX testified that at times the responses which the Parents entered into the log were in “significant misalignment” with what she was seeing at school. The responses also spanned numerous pages and at times were difficult to interpret and “sort of cryptic.” She stated that the Parents at times, “[I]mplied things were occurring when she had a clear understanding that they weren’t.” In those cases, she forwarded the Parents’ entry to the special education office. XXXX stated that her comments in the log focused on the Student’s XXXX. She would, however, address with the Student whatever was brought up in the log the previous night by the Parents in school the next day. She was aware that the Parents were reporting that the Student was XXXX. She stated that although parent training would have been advantageous, she did not believe that parent training was needed in order for the Student to be successful in school (Tr. pp. 1687-1685, 1704, 1723-1726, 4146-4147).

The Student participated in State assessments during the XXXX grade, and he passed both ELA and Math with a score of 3, which indicated proficiency (Tr. pp. 874- 876). XXXX also administered the XXXX, as part the annual review process to determine his educational levels in the areas of XXXX, to enable informed instructional and placement decisions for the Student for the upcoming XXXX school year. The XXXX. He obtained a score in the average range for what would be expected of a student his age. The XXXX. He obtained a score in the average range. The XXXX.

He scored in the above-average range on XXXX and the below average range in XXXX, yielding a score in the average range (Tr. pp. 895-897; Ex. D-24 at pp. 2-4).

XXXX also reviewed the Student’s report card for the XXXX school year. She reviewed his XXXX performance and indicated that he was approaching grade level expectations. She advises parents to interpret grade level report cards with caution, as they do not necessarily reflect the progress students make, which is captured in the anecdotal comments to the report card. XXXX stated that the Student progressed in XXXX. He increased XXXX. XXXX also stated that grade level expectations increase during the course of the year, and that must also be taken into consideration when reviewing progress (Tr. pp. 898-903; Ex. P-P).

In the area of XXXX, XXXX testified that the Student met grade level expectations except in the area of XXXX, where he approached grade level expectations. He made progress in XXXX as evidenced by XXXX (Tr. pp. 898-904; Ex. P-P).

XXXX reviewed the Student’s progress in the area of XXXX and stated that he approached grade level expectations in the areas of XXXX (Tr. pp. 904-908; Ex. P-P).

XXXX described the Student as requiring XXXX. These strategies were successful during the XXXX school year, and there are similar strategies listed in the Student’s IEP for the XXXX school year (Tr. pp. 909-910, 1123-1148, 1205-1207, 4112- 4115, 4125; Exs. D-27 at p. 10, P-P).

XXXX testified that she does not XXXX for every special education student. She stated that if she sees XXXX. The Student was able to access the XXXX grade curriculum. She kept a record of whether the Student completed his work each day on the XXXX. In addition, at the end of the year the Student was able to pass both New York State XXXX grade level tests in ELA and Math (Tr. pp. 1732-1734).

XXXX stated that when XXXX pushed into her classroom, the Student generally went along with the sessions, but that he was less complaint with XXXX than he was with her. XXXX said that with her, the Student was very compliant, easily directed, and always responsive. However, with XXXX, if the Student was instructed to sit down, he would not sit down right away, and it took multiple prompts. She tried not to intervene because she did not want to “step on the other teacher’s toes.” But she stated that if it was a situation where the Student was not responding to XXXX’s prompts, she might verbally redirect him. She reviewed XXXX’s Daily Progress Notes and stated that she was not present in the classroom on XXXX, when the Principal was called (Tr. pp. 1626- 1628; Ex. D-19 at p. 1).

The Student was mainstreamed with one other student into XXXX classes (i.e., specials), which included XXXX. He and the other student attended XXXX classes with an aide. The record reflects that the Student had difficulty in the winter and, to a lesser extent, the spring, with XXXX in the XXXX class. XXXX stated that most of XXXX was spent at a computer, and although the Student loved computers, he wanted to engage in activities with the computer that did not involve grade level instruction. He had difficulty XXXX. The Student performed at or above grade level expectations in his other XXXX courses. He was not XXXX in any of his XXXX classes (Tr. pp. 910-916; Ex. P-P).

XXXX testified regarding the CSE meeting which was held on XXXX for the Student’s annual review for the XXXX school year. She stated that she had no communications with the Student’s private providers who attended the CSE meeting (i.e., XXXX and XXXX), or with XXXX. She stated that she reviewed the Student’s present levels of performance at the meeting and pinpointed needs for the Student in the XXXX and XXXX areas. She also pinpointed XXXX needs collaboratively with the school psychologist. The Student had access to XXXX (Tr. pp. 917-926; Exs. D-24 at p. 14, D-27).

XXXX testified regarding the Parents’ concerns that the Student was XXXX. She stated her awareness that one time during XXXX the Student was involved in an enjoyable activity and XXXX. She also recalled two times when the Student XXXX. In response to the Parents’ concerns, XXXX said that they started to be very mindful to prompt the Student XXXX. At the end of the day, she XXXX. XXXX testified that the District responded to the Parents’ complaints that the Student XXXX and stated the District did not see what the Parents were reporting (Tr. pp. 926-928, 1666-1669, 4159- 4160, 4190-4191, 4223-4226, 4229-4231, 4358-4360).

XXXX testified that the Parents expressed concerns that the Student was XXXX. She stated that he seemed happy in school; that she and the Student got along well; that he was rarely XXXX when she worked with him; they had a good rapport; they spoke in between lessons when there was a break; they shared stories; they discussed current events; and the Student sought her out at times if XXXX. Moreover, she believed that the Student was physically safe at school and believed that he was in a safe environment, without risk of bodily or emotional harm (Tr. pp. 928-930).

XXXX reviewed each of the goals that were placed into draft form prior to the meeting and reviewed at the meeting. She stated that the Parents and their private providers were given an opportunity to comment on the goals or suggest modifications, and that they were in agreement with them. She did not recall whether the private providers recommended any additional goals for the Student. XXXX reviewed each of the goals she developed and explained how they were directly related to the needs she identified in the present levels of performance, in detail (Tr. pp. 934-948; Ex. D-27 at pp. 13-16).

XXXX stated that the CSE recommended continuation for the Student in her XXXX for the XXXX school year, together with related services and program modifications. The Student would receive XXXX. In addition, he would receive XXXX. XXXX also reviewed each of the program modifications which were recommended for the Student and explained why they were necessary for him to be successful in the academic school environment (Tr. pp. 948-952; Ex. D-27 at pp. 16-17).

XXXX stated her belief that the program recommended for the Student for the XXXX school year would have enabled him to make meaningful educational progress, based on his performance in the same classroom environment during the XXXX school year. She stated that the Student made strong academic progress; he made XXXX (Tr. pp. 952-954). A review of the Student’s Progress Report on goals for the XXXX school year reflects that the Student achieved all but 2 of his annual goals, in which he was progressing satisfactorily but ultimately did not achieve (Ex. D-32).

XXXX testified that she attended the CSE meeting held in preparation for the Student’s program for the XXXX school year, where XXXX staff reviewed the Student’s progress in its program during the XXXX school year. She stated that skills that the Student had been working on at XXXX in the area of XXXX were areas in which the Student had already been performing at grade level at the end of the XXXX school year, including XXXX; that he worked on XXXX at XXXX, which he had already mastered in the District’s program at the end of the XXXX school year, such as XXXX; and that he seemed to require more breaks at XXXX than he needed at the end of the XXXX school year in the XXXX. She also stated that the Student had a reduced-day schedule to accommodate his XXXX at XXXX (Tr. pp. 957-964, 966-967; Ex. D-26 at pp. 41-47, 60).

XXXX reviewed the Student’s Progress Report on goals for which she was responsible at the end of the XXXX school year. She stated that he achieved XXXX goals 1 and 3 by the end of the year. He did not achieve XXXX goal 2 and it was carried over to be worked on for the XXXX school year. He achieved both XXXX goals (i.e., 4 and 5) by the end of the year. He met his XXXX goals (i.e., 6, 7, and 8) either during the year or by the end of the year. He also met goals 13, 14, 16, and 18, his XXXX goals for which XXXX was responsible. The document indicates that the Student met all of his goals for the XXXX school year, with the exception of one XXXX goal and one XXXX goal (i.e., 2 and 9) (Tr. pp. 978-984; Ex. D-32).

XXXX testified that she suggested to the Parents additional goals, to replace goals which the Student had already achieved, on XXXX, but they declined to have them added (Tr. pp. 984-986; Ex. D-16 at pp. 14-15).

XXXX was the Student’s XXXX teacher at XXXX during the XXXX school year, when she began her employment with the District. Prior to that time, she was employed as an XXXX teacher for 4 years at another public school district. She is certified in teaching XXXX. She is considered to be highly qualified under the No Child Left Behind Act (Tr. pp. 1250-1254).

XXXX testified that the Student came to her in the XXXX school year as an XXXX. The Student had no problems XXXX. They worked on XXXX. She used the XXXX grade curriculum, XXXX, to instruct him and one other student who made up the small group. She did a lot of XXXX. She also used a SMART board for visual activities, they played games, used hands-on projects where they XXXX (Tr. pp. 1255-1257, 1266-1267; Ex. D-10).

XXXX testified that she communicated with XXXX at least once a week for the purpose of curriculum planning. She aligned what she was doing in her XXXX classroom with what the Student was doing in XXXX’s class. She stated that the Student came to her after specials, and she noticed on days that he had physical education, he would XXXX. XXXX provided XXXX with a XXXX (Tr. pp. 1258-1260).

XXXX stated that during class sessions, the Student needed occasional reminders to XXXX. She stated that generally, with occasional XXXX. The Student never needed XXXX (Tr. pp. 1258-1262).

XXXX reviewed the Student’s progress report and stated that he performed in the manner she would expect of an XXXX in the XXXX grade. The Student performed well in XXXX and he exited the program at the end of the XXXX school year, having scored XXXX (Tr. pp. 1263-1266; Ex. D-15).

XXXX was a school psychologist who retired from the District in June 2012, after 20 years of employment. Her responsibilities included working with children, parents, teachers, and administration. She performed testing, provided counseling, participated in special education meetings, consulted with parents on issues ranging from toilet training to peer issues, and consulted with teachers and the principal regarding curriculum and behavior. She also wrote and followed IEPs, and conducted evaluations and reevaluations. She possesses permanent certification as a school psychologist and as a teacher in grades N through 6 (Tr. pp. 1312-1314, 1317).

XXXX first became familiar with the Student by conducting the social history as part of his initial referral to the CSE by his Parents. During the XXXX school year, she XXXX. They worked on XXXX. XXXX kept written records detailing progress made on the Student’s goals for which she was responsible. Although her notes only run through XXXX, XXXX said she continued to provide XXXX services to the Student through close to the end of the year, prior to school trips (Tr. pp. 1318-1325, 1329-1330; Exs. D-3, D- 17).

XXXX reviewed her notes and stated that she observed the Student on XXXX from time to time. She stated that when she observed the Student on XXXX, he was physically active and was running, climbing, and chasing, consistent with the other boys. She noted that he “fit in.” She stated that although she did not see the Student as XXXX when she observed him, the aides commented that sometimes he was XXXX on the XXXX (Tr. pp. 1330-1331; Ex. D-17 at p. 7).

XXXX testified that in a session on XXXX, the Student stated he liked XXXX better and that he liked his teacher, XXXX. She characterized his relationship with XXXX as a “very tight, connected emotional relationship.” She stated that she could see through their body language that XXXX liked the Student and he liked her. She also stated he was able to work with her and focus with her. The discussion differed between them prior to this time, on XXXX, when the Student told XXXX that his “goal was to get out of XXXX” and that he knew that he needed adult help to reach that goal (Tr. pp. 1332-1333, 1392-1396; Ex. D-17 at pp. 7-8).

XXXX reviewed her notes regarding a discussion in their XXXX session regarding XXXX. The Student XXXX. XXXX stated that the he was well-liked in the XXXX, but there was one person whom he did not like. She described him as having XXXX. She stated she never got the sense that he was isolated in class or didn’t have any friends in school (Tr. pp. 1336-1337; Ex. D-17 at p. 11).

XXXX commented that in a XXXX, the Student demonstrated XXXX (Tr. pp. 1335-1336; Ex. D-17 at p. 12). She stated that the Student was doing very well in XXXX. Occasionally, he needed XXXX, but it was not often, and most of the time he participated and was a positive member of the group. She did not remember the Student exhibiting any XXXX issues in her sessions (Tr. pp. 1338-1339).

XXXX testified that she did not observe the Student XXXX. She also stated that she never had to XXXX the Student. She stated that by the end of the XXXX school year he pushed into general education, because his academic skills were “really quite good” and she never recalled conversations with his teachers that he was XXXX in their classes. During the XXXX school year, she stated that XXXX asked her to observe the Student in the XXXX class and to chart whether he was XXXX. She stated that he was XXXX (Tr. 1342-1347; Ex. D-21 at pp. 2-4).

XXXX testified that parents were provided with monthly XXXX updates, which set forth the topics which were being discussed in the XXXX class and in small group sessions (Ex. D-18 at pp. 3-6). The record reflects that bullying was one of a number of topics that was discussed in XXXX, and that XXXX had a Bully Proof program, which was a zero tolerance of bullying (Tr. pp. 3874-3875; Ex. D-18 at p. 6). XXXX testified that students mischaracterize certain interactions with their peers as bullying, and there was discussion as to what types of behavior constitutes bullying. She stated that she never observed the Student being bullied, teased, treated meanly by other students, or being left out by his peers. She also stated that she knew the Parents were having trouble with the Student at home, but that she did not recall a recommendation for parent training being made (Tr. pp. 1333-1334, 1415-1417, 1456-1459; Exs. D-17 at p. 9, D-18).

XXXX stated that the staff at XXXX felt that the Student was a “success story,” given his XXXX. She stated that the staff and the Parents XXXX. She also believed that XXXX was a gifted teacher and she was doing a great job with him (Tr. pp. 1351- 1352).

XXXX stated that none of the Student’s private evaluators or private service providers contacted her to find out how he was doing in school, including XXXX, XXXX, or XXXX. She reviewed XXXX’s report of testing and stated that the results of cognitive testing were consistent with the Student’s abilities, and he had no severe cognitive issues. She also reviewed the XXXX and noted that XXXX’s ratings placed the Student in the typical range. She felt that the Student’s behavior was “under very good management systems” in XXXX’s class and she believed that the Student understood behavioral expectations of the class and followed them with rare exceptions. XXXX reviewed the XXXX which were recommended for the Student for the XXXX school year and believed that they were appropriate; stated that each goal was discussed at the CSE meeting; that the Parents and their private providers were given an opportunity to participate in the development of the goals; that there was no objection at the meeting that the goals were not appropriate; and that she did not recall whether the Parents or their providers suggested any additional goals for the Student (Tr. pp. 1353-1366; Exs. D-24, D-27 at pp. 15-16).

XXXX testified that she reviewed XXXX’s report and that she was familiar with the tests administered by her. She stated that some of the scores obtained by XXXX were lower than what she remembered about the Student’s functioning in school. She did not disagree with XXXX’s recommendation for the use of systematic instruction in XXXX. She also testified that XXXX used several kinds of XXXX approaches, some of which were multisensory in nature, and that she used a systematic instruction in XXXX. The Parent stated that XXXX started using a XXXX with the Student at his request (Tr. pp. 1472-1473, 1477-1479, 3801-3802; Ex. D-24 at p. 47).

XXXX stated her opinion that the recommendations made by the CSE for the Student for the XXXX school year would enable him to make meaningful progress. She stated that he made very good progress in the same program during the XXXX school year. XXXX, he was appropriate much, if not most of the time, he was learning the appropriate XXXX of the school, and he was willing to adhere to them (Tr. pp. 1367- 1368).

XXXX testified that in her opinion, the Student did not require XXXX given that he was placed in a XXXX with a “very high level of structure and very firm expectations,” when “only four times it was needed to XXXX” during the XXXX school year, and based on her personal observation that she “did not see much XXXX that needed more than reminders.” She also stated that the XXXX that was noted by XXXX over the XXXX school year was limited to once or twice in a month, and that XXXX was well able to handle that level of XXXX based on the program that she had in place without a specific XXXX (Tr. pp. 1479-1484; Ex. D-31).

XXXX is the Principal of XXXX and at the time of his testimony he was employed by the District in that capacity for 17 years. His duties included supervision of instruction, organization and maintenance of the building, maintenance of discipline, and ensuring that the environment was safe. He is certified as a school district administrator and as a teacher of English grades 7 through 12 (Tr. pp. 1485-1487).

XXXX testified that in the XXXX he had a discussion with the Parent regarding XXXX and placement of the students in school. He stated that they discussed the fact that XXXX, and whether it would be appropriate for this Student to XXXX. A determination was ultimately made by the Parents for the Student to start XXXX in the XXXX school year. The Student was placed in XXXX, since he XXXX. His XXXX teacher stated that he was XXXX. By the end of the XXXX school year, the Student made “quite a bit of progress” in terms of his ability to XXXX and he engaged in most of the activities in the classroom. However, there were concerns about XXXX (Tr. pp. 1489-1493, 1520-1523).

XXXX recalled that at some time in the XXXX grade, the Student transferred to a program at XXXX to be part of a XXXX, and he remained at XXXX through his XXXX grade year. He returned to XXXX in the XXXX grade with his classmates to attend the XXXX. He described his relationship with the Parents as very cordial, friendly, and collaborative when the Student attended XXXX for XXXX and part of XXXX grade (Tr. pp. 1494-1496).

XXXX testified that on XXXX, he was in a classroom observing a teacher when he received a call that the Student was XXXX. He went to the classroom and observed XXXX performing XXXX. The Student XXXX. He suspended the Student for 2 days for injuring the teacher (Tr. pp. 1497-1498, 1553-1556).

XXXX testified that some weeks later, the Parent told him that she did not believe that XXXX was injured, even though he saw a bruise on XXXX’s cheek, and that the incident between the students should have been prevented, given that the same two students had an incident on the bus the day before. The Parents asked XXXX to remove the suspension letter from the Student’s file. He refused, but encouraged them to write a rejoinder and it would be attached to the suspension letter, which they did (Tr. pp. 1498-1499; Exs. P-BB, P-NN).

XXXX thereafter testified that following the incident, the Parents came to his office and stated that the Student was being picked on and bullied during recess when 5 or 6 students taunted him and told him to kiss a girl. XXXX disputed the Parents’ claim and played back a videotape of the day in question, and he could see no evidence on the videotape of children either ganging up on him or bullying him. The Student was engaged in play like all the rest of the XXXX graders (Tr. pp. 1499-1501, 1584-1585).

XXXX testified that he was asked by XXXX to observe the Student in his class to see whether he was engaged in learning and whether he was demonstrating appropriate behavior, in response to the Parents’ concern that the Student was not learning and that his behavior was not being maintained in school. He did not believe that the Student was unsafe at school, based on his observations. He also did not see the Student as being isolated. He stated that the Student pushed into a XXXX grade general education class and he was mainstreamed in lunch, recess, and specials, that mainstream students were very appropriate with him, that he sat with other children during lunch, he ate, was sociable, and was social. He never observed the Student XXXX (Tr. pp. 1501-1507, 1523-1524; Ex. D-21 at p. 1).

XXXX testified that the Student made appropriate academic progress during the XXXX grade year with XXXX; that he was advancing in XXXX; that he scored at a level 3, indicating proficiency, on the ELA and the Math state tests; and that he scored well on XXXX. XXXX, the Student attended a class with a high level of structure and organization, and he met with small success throughout the school day. He stated that although the Student had difficulty XXXX, the environment with XXXX, the teacher aide and the teaching assistant helped him move through the day productively. He further stated that the Student needed XXXX support, because XXXX. He could XXXX. He could have difficulty XXXX. He could have difficulty XXXX. He believed that the program provided to the Student gave him the kind of support that he needed to be successful in school. He had moments when he XXXX, but that was the reason that he was XXXX, to give him the kind of support that would help him. He stated that by the end of the XXXX school year, the Student clearly had a better ability to XXXX in XXXX’s classroom. He also stated that there were a couple of instances where other children behaved aggressively toward the Student, and they were disciplined as a result (Tr. pp. 1507-1511, 1530, 1568-1569).

XXXX testified regarding his attendance at the Student’s annual review on XXXX, and stated that he was not contacted by XXXX, XXXX, or XXXX with respect to the Student. He also stated his belief that the CSE’s recommendations for the XXXX school year were appropriate and would enable the Student to make meaningful educational progress. He also stated that if there were no appropriate programs in District, the CSE would seek an outside placement that would be appropriate. He did not believe that the Student needed an out-of-district placement in order to make educational progress during the XXXX school year (Tr. pp. 1514-1518, 1580-1583; Ex. D-27).

The Student, XXXX, testified on his own behalf. He testified that he attended school at XXXX for the XXXX grade. He also stated that he previously attended XXXX in XXXX. He stated that in the beginning of XXXX grade, he was excited to attend XXXX because he thought “they would have been a little nicer” because “he was a little older,” he “would have had time to change,” and that the kids would “treat [him] better” (Tr. pp. 1751-1753).

The Student stated that at first, he did not mind that the kids “made fun of [him] a little bit,” but that a month later, the kids were starting to be meaner, and they were bullying him. He gave an example that when it was his turn to play in a round the students lied by telling him that it was not his turn. He also stated that when he was playing basketball on the playground during recess, the other students would never pass the ball to him, he “was just standing there doing nothing,” and that it made him sad. He told the aides on the playground, stating “the kids aren’t letting me play with them and they are being rude to me and they are not being nice.” Sometimes the aides told him that the next time the kids did that he should come and tell them. The Student stated that, “[T]here’s no point in wasting my time going to them because all they’ll do is tell me next time and they’ll do something about it.” Other times the aides “would handle it” but “they would act like it’s nothing” and would tell the students not to do it again. When he felt that the aides did not handle the situation, he stopped playing with those students and would go on the swings or play with a friend (Tr. pp. 1753-1757).

The Student remembered doing work in the XXXX grade, and said that some of the work was “really easy” for him, with the exception of XXXX, in which he “needed to improve.” He described XXXX as the “easiest” subject and stated that the other subjects “weren’t hard at all to do, either.” He stated that he had XXXX. He also stated that XXXX. This was the same student with whom this Student had difficulties when they rode on the bus. The evidence shows that the students had difficulties, but they also had a play date outside of school after the time that the Student stopped attending the District’s program (Tr. pp. 1727, 1759-1763, 1846).

The Student stated that he had XXXX in XXXX’s class, where they XXXX (Tr. pp. 1763-1783, 1794-1799, 4372).

The Student testified that XXXX (Tr. pp. 1783-1784, 1794-1796).

The Student testified that he was bullied in school “a couple of times” where other students asked him to do things like “act like a dog” when he was in XXXX. He said that when he did it, he made the other students laugh, but his mother explained to him that the students were making fun of him. He stated that students in the XXXXX grade also told him to act like a dog and he did not do it. He also stated that he was bullied in PE, when they were playing sports games and they would not pass the ball to him. He described another incident when he had a play date at his house with a mainstream peer and the peer challenged him to inappropriately kiss a Barbie doll. When attending the chess club after school, the peer stated he would make a website showing the Student kissing the Barbie doll. XXXX testified that chess club is not a school-sponsored activity. The Student said that from then on he did not trust all of the kids and he “went” with his other friends from the mainstream. In another incident, he had a friend from the XXXX go swimming at his home, and that friend, in addition to other students, made fun of him. He also stated that his friend from the XXXX would not let him sit with him and other students from the mainstream at lunch. The Student testified that he told XXXX when he was being bullied or teased by other students in school, that she spoke with the other students involved, but he felt that “they don’t do anything about it” (Tr. pp. 1785-1789, 1814, 4216).

The Student described XXXX as XXXX. He stated that he did not like to go to XXXX because he would miss recess and he sometimes sneaked out of lunch bunch to go to recess. He did not want to miss recess especially because he already went to XXXX. He told his teacher that he did not want to be in XXXX, but was told that his mother wanted him to participate (Tr. pp. 1790-1793).

The Student said that he did not want to go into XXXX’s class in the XXXX grade “because [he] didn’t feel comfortable with her teaching and her strategies.” He stated “she always gave me easy homework” and “didn’t give me anything that was at my level.” He also stated that his Parents introduced XXXX to the XXXX, but that XXXX (Tr. pp. 1803-1805, 1807-1808).

The Student stated that he had to XXXX when he was in XXXX’s class because he “got stressed by being bullied, teachers, the [other student] and the nonsense.” He stated that XXXX (Tr. pp. 1809-1813).

The Student stated that he took the bus to school with one student from the XXXX and his three mainstreamed siblings, whom this Student described as “mean.” They made fun of him and told him to stop bothering their brother, and he told them he was trying to make friends with his brother. He stated that sometimes he told XXXX about it but other times he did not, and he did not tell the aides or the bus driver (Tr. pp. 1817-1822).

The Student testified that he attended XXXX for one year and a half and then attended the XXXX. He also testified that after leaving the District’s program, he had play dates with one student from his XXXX and another student from the mainstream (Tr. pp. 1828, 1846).

XXXX is a Speech and Language Pathologist. She received her Certificate of Clinical Competencies and her New York State license. She also taught an augmentative communication course at the graduate level and worked at the XXXX. XXXX is currently in private practice and she continues to provide evaluative and therapeutic services. She has consulted with a number of school districts for both speech and language services and for assistive technology. She was qualified as an expert in speech and language pathology and language-based literacy issues (Tr. pp. 1882-1887, 1896).

XXXX testified that she met the Student through a referral from XXXX, a private evaluator who conducted a XXXX evaluation on the Student. XXXX recommended that the Student participate in the XXXX program, of which XXXX is a provider. She met with the Student in the XXXX for an assessment session to determine whether he was appropriate for using the XXXX program (Tr. pp. 1897, 1900-1904; Ex. D-26 at pp. 48- 57).

In XXXX, XXXX performed a formal evaluation of the Student. As part of her evaluation, she reviewed evaluations and educational documents “to be able to see his progression in terms of XXXX” and his “educational competencies” in XXXX. She reviewed the Student’s IEP for the XXXX school year (Ex. D-12) in conjunction with a

XXXXEvaluation conducted by XXXX on XXXX (Ex. P-VVV); a XXXX Evaluation conducted by the District on XXXX (Ex. P-UUU), which she described as an accurate representation, and used customary testing, to assess the Student’s XXXX that he acquired at that time; and a XXXX Report conducted by XXXX on XXXX (Ex. P-TTT), obtained privately by the Parents (Tr. pp. 1908-1935).

XXXX also reviewed the results of a XXXX by XXXX in detail. She reviewed XXXX’ recommendations and stated her opinion that they were appropriate (Tr. pp. 1935-1942; Ex. P-QQQ).

XXXX reviewed XXXX’s Daily Progress Notes for the XXXX school year and indicated that the Student worked on some XXXX goals in terms of XXXX. XXXX stated that there was no indication in XXXX’s notes that she used a systemic, sequential protocol in teaching goals, which would assist in measuring outcomes from therapy. However, she also stated that it is not necessary to measure every single task by following a protocol (Tr. pp. 1957-1962; Ex. D-19).

XXXX reviewed the levels of XXXX recommended for the Student for the XXXX school year and stated her opinion that it does not meet the Student’s need for individual XXXX, which she believed he required (Tr. pp. 1962-1964). She stated that XXXX is appropriate for the Student in terms of XXXX, identified by her as goals 12 and 14 on the IEP. However, given the Student’s profile, she did not believe that XXXX. XXXX stated that she was not aware of the goals of the other students in this Student’s XXXX during the XXXX school year or the goals of the other students with whom this Student would have been placed for XXXX the XXXX school year. She also stated that she did not know how students were grouped for XXXX by the District, she did not know what programs XXXX was using for the Student, and that there is nothing inappropriate in using different parts of different programs to instruct a student (Tr. pp. 1969-1974, 2102-2104, 2107-2108; Ex. D-27 at pp. 14-15).

XXXX testified that she would have included additional XXXX goals for the Student based on the results of XXXX’s testing in the areas of XXXX (Tr. pp. 1974- 1975; Ex. D-24 pp. 17-55).

XXXX compared XXXX conducted by XXXX in XXXX and XXXX in XXXX using the XXXX and stated that XXXX (Tr. pp. 1979-1982; Exs. D-24 at p. 52, P-UUU at p. 5).

In the subtest of XXXX, the Student XXXX. The results show that in some areas, he acquired competencies, and in some tests, he has not. She stated that, as predicted in XXXX, they continue to have gaps in performance that will take a very long time to remediate (Tr. pp. 1983-1988; Exs. D-24 at p. 52, P-UUU at p. 5).

XXXX also compared the XXXX (Ex. P-TTT at p. 2) with XXXX’s report (Ex. D-24 at p. 52) in the areas of XXXX (Tr. pp. 1989-1994).

XXXX stated that XXXX’s report demonstrated that the Student was having uneven acquisition of skills required for XXXX. However, she acknowledged that XXXX stated in her report that it was hard to determine whether the Student’s variable scores were the result of XXXX or XXXX. XXXX stated that she would recommend some XXXX (Tr. pp. 1998-2001, 2100; Ex. D-27 at p. 3).

XXXX did not dispute that the Student scored within the average range on both XXXX (Tr. pp. 2002-2004; Exs. D-24 at p. 3, D-27 at p. 7).

XXXX testified that the XXXX goals contained in the IEP for the XXXX school year were appropriate for the Student, but that they were deficient in that they did not include goals to address XXXX. She also stated that the XXXX goals were clearly addressing XXXX skills and were appropriate. The IEP indicates that the Student received XXXX (Tr. pp. 2005-2008; Ex. D-27 at pp. 7, 14-15).

XXXX testified about her knowledge of XXXX. She described it as a school for children with learning disabilities which provides small classroom support and used “very specific methodologies and viewpoints about children with learning disabilities and appropriate educational settings for them.” She stated that XXXX provided the Student with very comprehensive academic instruction using research-based methodologies to improve his XXXX skills during the XXXX school year. She stated that they used XXXX protocols. The Student had a XXXX teacher, who was a speech and language pathologist, who provided 1:1 instruction, 5 days per week, to work on XXXX. XXXX’s knowledge about XXXX was based on a review of the Student’s XXXX school records for the XXXX school year and based on other student’s experiences at the school. She never spoke with anyone at XXXX about the Student and she has never visited the school (Tr. pp. 2034-2041).

XXXX testified that an appropriate level of XXXX for the Student for the XXXX school year would have been daily individual instruction. She then stated that the instruction could have focused on XXXX some days and some days for XXXX. She stated her belief that XXXX was not appropriate, but acknowledged that XXXX. She also stated that she did not believe the Student’s XXXX goals could be implemented in two times push-in together with 2 times pull-out per week. XXXX acknowledged that none of the reports of the XXXX she reviewed recommended five individual sessions of XXXX services per week. She disagreed with XXXX’s recommendation for XXXX one to two times a week. She acknowledged that clinicians can have different opinions as to what constitutes an appropriate level of services for a child. She also expressed her belief that the Parents were looking for an optimal amount of XXXX for the Student (Tr. pp. 2065-2071, 2079, 2112-2115; Ex. P-MMM).

XXXX acknowledged that she did not review any of the Student’s XXXX assessments administered by the District. She also stated that the Student did not need XXXX in order to learn XXXX. She did not know whether the Student received XXXX at XXXX. She also did not know whether XXXX followed XXXX protocols when instructing the Student (Tr. pp. 2072-2076, 2078, 2082, 2085-2086, 2144-2145).

XXXX testified that she began providing private XXXX to the Student in XXXX. She had no knowledge as to whether the Student received private XXXX at any time prior to the XXXX school year and she did not review any session notes or progress reports from any private XXXX provider. She also did not know whether the Student received any XXXX until she began to provide services in XXXX (Tr. pp. 2121-2123, 2125-2126).

XXXX, is a New York State licensed Clinical Psychologist who has treated or evaluated approximately 4,000 children in her career. She was qualified as an expert in clinical child psychology. XXXX became familiar with the Student in the XXXX when she evaluated him at the Parents’ request during his attendance at the XXXX. The Parents were referred to XXXX by XXXX (Tr. pp. 2251-2262; Ex. P-A).

XXXX reviewed the tests she administered to the Student and the results of testing in detail. She stated her opinion that the Student she evaluated in XXXX had much improved since XXXX (Tr. pp. 2268-2281, 2287-2289).

XXXX reviewed the results of XXXX’s testing in XXXX with the results of her testing administered in the XXXX. She stated that his test results in XXXX. The same was true in the areas of XXXX. She also stated that a comparison of XXXX and XXXX showed consistency (Tr. pp. 2291-2294, 2294-2295, 2301-2306, 2344-2348; Exs. D-24 at pp. 50-52, P-A at pp. 6, 12-16).

XXXX testified that she was unable to determine whether the Student made gains or losses during the XXXX school year based on her one time measurement in the XXXX. She compared the test results obtained by XXXX in the XXXX with the results of triennial testing conducted by XXXX, in the XXXX. She compared XXXX and noted a “borderline significant” difference between the Student’s XXXX. She compared the Student’s XXXX in XXXX and XXXX and stated there was not a statistically significant difference between the scores. In the area of XXXX, the Student had XXXX, which she characterized as “significantly lower.” She stated that if there is not a statistical significance between scores, it cannot be deemed important, since it is within the standard error of measurement (Tr. pp. 2331-2344, 2346-2347, 2361; Exs. D-24 at p. 23, D-26 at p. 9).

XXXX testified that there was a statistically significant change in the area of XXXX, indicating an improvement in XXXX and in the Student’s ability to XXXX (Tr. pp. 2306-2307).

The Student was assessed by XXXX using the XXXX in the areas of XXXX on and he was reassessed as part of his triennial evaluation using the XXXX. On the XXXX (Exs. D-24 at p. 3, D-26 at pp. 21, 25).

XXXX testified that the Student told her that XXXX and XXXX helped him, and he was very happy at XXXX. She was concerned to hear from the Parents that the Student was XXXX at his program in District (Tr. pp. 2295, 2301-2302).

XXXX testified regarding her familiarity with XXXX, their philosophy, and their methodology. She stated that she has referred patients to XXXX. She also stated that the school individualizes instruction; and has a small student/teacher ratio in terms of having an XXXX. She also stated that they “have a group of kids there who were similar” to the Student. She had not visited XXXX since XXXX. She did not observe the Student at XXXX or at XXXX. She also had no conversations with any of the Student’s teachers at XXXX. She never saw an IEP or any kind of individualized program prepared by XXXX, and she never saw any written goals that XXXX developed for targeting the Student’s specific needs. She received descriptions from the Parents as to “what was going on” at XXXX and she was familiar with the school’s methodology (Tr. pp. 2307-2310, 2321-2323).

XXXX testified to her understanding that the Student did well in XXXX “up to a certain point and then couldn’t really make it to the next level in terms of a bigger – a greater student/teacher ratio, greater complexity of the curriculum [and] more demands for independent learning.” She stated that XXXX provided the Student with support in XXXX. They did not use a classic XXXX approach. She obtained that information from Parent report and her knowledge of the XXXX curriculum (Tr. pp. 2355-2356).

XXXX was aware that the Student was placed on shortened days at XXXX due to XXXX issues that were highly variable during the course of the school day. A plan was in place that if he lacked the stamina or the coping mechanisms to get through the school day, his mother could pick him up earlier. She stated that the XXXX issues consisted of XXXX. She stated that the Student did not receive any formal school-based XXXX at XXXX (Tr. pp. 2356-2359).

XXXX stated her opinion that the half day system that was instituted by XXXX was a good idea from a clinical perspective in that one does not want the child to have negative experiences being in school; and having the option of picking up the child so that other activities could be done, other therapeutic activities, as opposed to more negative experiences, enables the child to feel masterful and able to succeed during the school day (Tr. pp. 2365-2366).

XXXX concluded that the Student was far more confident, open, and related in his ability to be evaluated between the time that he was evaluated by XXXX in XXXX to the time of her testing in XXXX (Tr. pp. 2310-2311).

XXXX testified that the purpose of her evaluation was for educational and therapeutic planning. She stated her understanding that the Student did not have XXXX, and did not know whether he was proficient in XXXX (Tr. pp. 2316, 2328).

XXXX stated her understanding that at the time the Student began to attend XXXX, XXXX added an XXXX. She testified that there was no information in her evaluation which describes the Student’s skills at the beginning of the XXXX school year or at the end of the XXXX school year. She also testified that the Student told her that XXXX and XXXX helped him, and he was very happy at XXXX. She was concerned to hear from the Parents that the Student was XXXX at his program in District (Tr. pp. 2295, 2330-2331).

XXXX, is the Student’s XXXX. XXXX presented direct testimony by two affidavits and he appeared at the Impartial Hearing for cross-examination by the District (Exs. P- ZZZ, P-DDDD). XXXX testified that his affidavit was drafted “by the lawyers” based on several interviews with him, and he and the lawyers made changes to the affidavit (Tr. pp. 2398-2399). He was qualified as an expert witness in child and adolescent psychiatry (Tr. p. 2396). XXXX has been the Student’s XXXX, when his Parents brought him due to severe concerns they were having about the Student’s XXXX in the home. On XXXX, the Student XXXX. The Parents also reported various and numerous similar incidents about the Student’s XXXX. The Student XXXX (Tr. pp. 2405-2407, 3764-3767; Ex. P-ZZZ at p. 6).

XXXX conducted an examination of the Student that included a XXXX evaluation. The examination lasted about 45 minutes. During the examination, the Student XXXX. XXXX never observed the Student in his home setting, in the community, or in his classroom setting. However, he stated that he did not feel that he needed to observe the Student in those settings in order to fully understand his deficits or in making clinical recommendations for the Student, because he relied on the information he obtained from the Parents. XXXX never administered XXXX and he did not create a written assessment relating to his examination (Tr. pp. 2407-2410, 2411-2412, 2419, 2430- 2431, 2510-2511; Ex. P-ZZZ at p. 7).

Based on his examination, Parent reports, and a review of a number of evaluations, XXXX’s initial impressions were that the Student had XXXX (Ex. P-ZZZ at pp. 7-8). XXXX testified that he diagnosed the Student as XXXX, although that diagnosis does not appear in his letters to the CSE. XXXX also did not have any communications at any time with any District personnel to discuss the Student’s behavior in school or any other issue, and the Parents did not ask for XXXX to speak with the school or execute a release for that purpose (Tr. pp. 2421-2424, 2430-2431). He also acknowledged that he had no experience as an educator or as a school district administrator, and he was not qualified as an expert in special education (Tr. pp. 2401- 2405, 2417-2421; Exs. D-24 at pp. 15-16, P-MMM).

In XXXX, XXXX diagnosed the Student with XXXX. In a letter dated XXXX, XXXX set forth the Student’s diagnoses and made recommendations for XXXX for use by the District’s CSE. The letter was written at the Parents’ request. Although XXXX’s letter stated that he was treating the Student with XXXX, he clarified that he was not treating the Student for XXXX, and he was not providing XXXX. XXXX testified that during the XXXX school year, he made adjustments or changes to the Student’s XXXX on 10 separate occasions (Tr. pp. 2432-2433, 2440-2441; Exs. P-MMM, P-ZZZ at p. 9, P-DDDD at pp. 2-5).

During the XXXX school year, XXXX continued to make adjustments or changes to the Student’s XXXX, the last adjustment having been made in XXXX (Ex. P-DDDD at pp. 5-7).

XXXX provided XXXX once every two to three months and whenever the Student had an XXXX both in school and at home. XXXX stated that during the XXXX school year, the Student had XXXX. That report was not submitted into evidence at the Impartial Hearing (Ex. P-ZZZ at pp. 9-11).

XXXX testified that during the XXXX school year he found that much of the Student’s XXXX. He stated that the Student told him that he had no friends and was being bullied by mainstream students. XXXX stated his opinion that the XXXX, and that “the Student’s learning environment was detrimental to him” (Exs. P-ZZZ at p. 11, P- DDDD at pp. 8-9). XXXX neither spoke with any of the Student’s teachers, related service providers, paraprofessional staff, or District administrators, nor made an observation of the Student in his school placement in drawing conclusions about his learning environment in the District (Tr. pp. 213, 920, 1353, 1516).

XXXX also stated in his affidavit that the Student’s XXXX indicated that between XXXX and XXXX the Student was increasingly XXXX. In XXXX, he took the Student off XXXX and added XXXX. XXXX testified that the Student was already on XXXX when he added XXXX (Tr. pp. 2499-2500, 3779; Exs. D-26 at p. 58, P-DDDD at pp. 6-9). XXXX stated that the Student XXXX. He did not offer any information regarding XXXX (Ex. P-DDDD at p. 9).

XXXX wrote a second letter on XXXX, in which he made recommendations for the Student’s educational placement at one of several private schools for the XXXX school year. The letter was written at the Parents’ request (Tr. pp. 2458-2459; Ex. D-24 at pp. 15-16). He stated that no one from the District contacted him to discuss his recommendations or to participate in the development of the Student’s educational program, although he was willing to do so (Ex. P-ZZZ at pp. 11-12). The evidence shows that on XXXX, the Parents revoked their consent for District staff to communicate with any of the Student’s private providers (Ex. D-22). XXXX then testified that he did not recall whether he was contacted by anyone from the District. He also stated that he asked the Parents whether they wanted him to contact the school to get additional information, and the Parents told him not to call the school (Tr. pp. 2490-2494). XXXX did not recall seeing any progress reports or school reports for the XXXX school year at the time he wrote the letter. Moreover, the Parents did not elect for XXXX to participate in person or by telephone at the CSE meeting held in preparation for the XXXX school year (Tr. pp. 2459-2460, 2462-2463; Ex. D-27 at p. 1).

XXXX recommended placement for the Student for the XXXX school year in a school such as the XXXX, XXXX in XXXX, or the XXXX in XXXX (Ex. D-24 at pp. 15- 16). XXXX testified that he does not visit schools, and he did not have any specific knowledge about any of the programs which he recommended. He stated that the Student did not attend any of the schools he recommended for the XXXX school year because the Parents felt they were not schools that would be best for their child (Tr. pp. 2482-2487, 2489).

XXXX concluded that XXXX (Tr. pp. 2457-2458; Ex. P-ZZZ at p. 12).

XXXX also recommended placement in an environment that could provide the Student with a great deal of XXXX (Ex. P-ZZZ at p. 12). In addition, he recommended XXXX (Ex. P-ZZZ at p. 13).

XXXX testified that based on his knowledge of the Student, a review of private evaluations, and Parent reports, XXXX (Ex. P-ZZZ at p. 13).

XXXX testified that based on Parent reports and personal knowledge, XXXX would benefit the Student educationally, socially, and emotionally, and stated that by XXXX, the Student showed improvement in overall functioning while at XXXX and there was a reduction of XXXX in school and at home when compared to the prior school year. He also testified that the Student did not exhibit any XXXX during the XXXX school year. However, XXXX also stated that when he was shifted “into another school environment” he had added XXXX. XXXX testified that XXXX added an additional XXXX while he was attending XXXX (Tr. pp. 2329-2320, 2448, 2496-2497, 2499-2500; Exs. P-ZZZ at p. 14, P-DDDD).

XXXX also testified that based on Parental reports and his discussions with the Student, that he enjoyed attending XXXX and made friends there; that during his time at XXXX the student XXXX; that the Student did not report to him that he was being bullied by anyone at school throughout the XXXX school year; that his overall XXXX improved; that the Student did not report XXXX; and to the best of XXXX’s knowledge, he was no longer XXXX in school (Ex. P-ZZZ at p. 14).

XXXX testified that he did not observe the Student in his placement at XXXX; that he was as familiar with the XXXX program “as [he was] with the other programs …

having had students who have attended there;” that he did not have any conversations with the teachers or the staff members at XXXX about the Student; that he did not recall being told that the Student was having difficulty at XXXX; that he did not remember the “ramp up” of the manner by which the Student was placed on shortened school days; that he believed that the Student received XXXX therapy privately and at XXXX; that he did not know whether the Student had to be given constructive breaks at XXXX in order to help his XXXX in the classroom, although he stated that such schools do not follow a strict time clock; and that he did not recall whether he increased the Student’s XXXX while he was at XXXX. However, he also testified that to his recollection, the Student had already been XXXX, at the time he attended XXXX, and he added XXXX (Tr. pp. 2494-2497, 2499-2500).

XXXX is the Dean of Students and Academics, as well as a Focus Teacher and Science Teacher, at XXXX, located in XXXX. She is certified as a Speech and Language Pathologist. XXXX testified by affidavit and she appeared at the Impartial Hearing for cross-examination by the District. XXXX testified that she was given a series of questions that she had to answer and the Parents’ attorney drafted the initial affidavit. The affidavit underwent 10 or 12 drafts between XXXX and the Parents’ attorney before it was finalized. She described XXXX as a unique educational program for students with learning differences, including XXXX. Not every student has difficulties in all three areas, although this Student did (Tr. pp. 2557-2558, 2589; Ex. P-AAAA at p. 1).

XXXX described her duties as a Focus Teacher to three students during the XXXX school year. She stated that she conducted daily 1:1 sessions for 47 minutes to address the students’ greatest areas of need. A Focus Teacher is in constant communication with the students’ classroom teachers, to share the strategies and supports that work best for the student, as well as the students’ progress and continued areas of need for purposes of carryover. She also develops and adjusts goals, as necessary, based on diagnostic feedback and informal observations. A Focus Teacher is also the primary advocate for the student and family (Tr. pp. 2571-2572; Ex. P-AAAA at p. 2).

XXXX described her duties as a high school Science teacher and as Dean of Students and Academics in detail. She did not teach Science during the XXXX school year. She also described the philosophy of a “Continuous Feedback System.” She stated that XXXX provides students with both small, structured classes as well as intensive 1:1 instruction throughout the day. There are also XXXX that meet once or twice a week depending on the student’s XXXX needs. They are grouped based on similarity of XXXX goals. During the XXXX school year, there were 100 students enrolled at XXXX and there were 28 teachers. Five were certified in special education. Teachers and staff attend weekly staff development workshops. XXXX testified that there are a total of four speech and language pathologists in the school, including the Head of School, the Focus Program Director, the Admissions Director, and herself. All students receive instruction in XXXX, but not directly from XXXX. XXXX did not recall how many classes there were at XXXX during the XXXX school year, and she did not recall student to teacher ratios in each of the classes in the school. She also did not know the ratio of students by gender (Tr. pp. 2574-2576, 2590-2592; Ex. P-AAAA at pp. 2-4).

XXXX does not hold a teaching license and she is not certified in general education, reading, or school administration. She had limited professional experience working in a public school system as part of her graduate program, in which she spent a semester teaching 4-5 students under the supervision of another speech and language pathologist (Tr. pp. 2576-2578).

XXXX first met the Student in or about XXXX when he applied for admission. His parents brought him for an interview and tour on August 9, 2012 and an application was submitted shortly thereafter. The Student was administered standardized testing. He was administered one subtest of the XXXX. A review of the record shows that XXXX administered the same subtest a few months earlier, in XXXX. XXXX testified that administering the same test more than one time in a 12 month period would impact the validity of the results and it is against the testing protocol. Based on this testing, as well as testing from XXXX, XXXX determined that the Student had XXXX. The Student was accepted at XXXX and the Parents paid tuition in the total amount of $53,850.00 for the XXXX school year. The goal was to provide the Student with support and strategies so that he could independently access his education. He was not able to independently access his education at the time he left XXXX (Tr. pp. 2592-2594, 2595-2596; Exs. D- 24 at p. 52; P-AAAA at pp. 4-5).

XXXX testified that the Student was placed in a class for students with XXXX for the XXXX school year. Not every student had difficulties in all three areas. Students are grouped chronologically based on learning profile and similarity of cognitive and academic abilities. XXXX school and XXXX school students are instructed separately, and are grouped so that there are no more than three grade levels placed together. There is no XXXX school. The school consists of XXXX students in grades 4-8 and XXXX students in grades 9-12. However, there are situations when, depending on a student’s academic skills, an 8th grader can be grouped together with a 9th grader. There was only one class grouping into which the Student fit. XXXX did not know which students were in his class. He had the same students in all of his classes, with the exception of XXXX. All of the students in his classes shared learning profiles similar to his. The teacher to student ratio in his classes was 10:1. XXXX was the Student’s Focus Teacher. She addressed the Student’s needs on a 1:1 basis in the areas of XXXX. She also provided the Student with XXXX on a 1:1 basis as part of his Focus session (Tr. pp. 2579-2589, 2694-2695; Ex. P-AAAA at p. 6).

XXXX testified that XXXX tries to screen for XXXX and its primary goal is to accept only students with XXXX difficulties. She acknowledged that this Student has medical diagnoses including but not limited to XXXX. XXXX administration made the determination that the Student’s XXXX issues were not his primary deficit and that he was “a good fit” (Tr. pp. 2599-2605).

XXXX assisted the Student with his transition to XXXX. She was the “point person” to whom he could go at any time for guidance, support, or assistance with any problems, socially and academically. The Student received modifications and accommodations throughout the curriculum including XXXX. At no time during the XXXX school year was the Student provided with instruction through the use of XXXX. XXXX described in detail the manner in which his XXXX weaknesses were addressed. She also described the manner in which his deficits in XXXX were addressed. The

Student’s test results in the area of XXXX revealed that he had “a foundation” in his XXXX (Tr. pp. 2613-2614, 2616-2628, 2693, 2703-2707; Ex. P-AAAA at pp. 6-8).

XXXX stated that in the beginning of the year, Focus sessions started with the development of XXXX. He was taught how to XXXX (Tr. pp. 2607-2610).

XXXX testified that the Student had a major weakness in XXXX (Ex. P-AAAA at pp. 8-9).

XXXX testified that after being in the XXXX community and receiving targeted instruction which was completely individualized, the Student started making steady and measured progress in all academic areas in or about XXXX or XXXX (Tr. p. 2708; Ex. P-AAAA at p. 9).

XXXX stated that the Student had difficulty with XXXX. He also had XXXX (Tr. pp. 2699-2700, 2703-2707; Exs. D-24 at p. 51, D-25 at p. 4, P-AAAA at pp. 7-10).

XXXX also testified that the Student’s XXXX also improved throughout his time at XXXX. His ability to XXXX greatly improved; his XXXX decreased; and his XXXX increased. He was better able to XXXX (Tr. pp. 2628-2631; Ex. P-AAAA at p. 10).

XXXX’s affidavit does not contain any information about the Student’s participation and progress in XXXX, which she stated was a mistake. She testified that XXXX administered the XXXX to the Student on XXXX for purposes of XXXX class placement. She did not instruct the Student in XXXX. XXXX clarified that the standardized testing that XXXX administered to the Student prior to the start of the XXXX school year included the XXXX (Tr. pp. 2632-2644, 2647-2651; Ex. D-24 at p. 51).

XXXX compared the Student’s test results on the XXXX administered on XXXX with the XXXX that was re-administered by XXXX on XXXX. On the XXXX (Tr. pp. 2657-2661, 2703; Exs. D-25 at pp. 2-3, D-33).

XXXX testified that in the area of XXXX, the Student had difficulty XXXX (Tr. pp. 2661-2664; Ex. P-AAAA at pp. 10-11).

XXXX also reviewed the Student’s grades for the XXXX school year. She testified that there is a three-part grading process which includes performance, commitment and effort, and participation. Each makes up 33% of the student’s grade. Performance is based on tests and quizzes; commitment and effort looks at ability to utilize strategies and take feedback; and participation involves the ability to arrive on time to class, be prepared, be attentive during lectures, asking questions, and the ability to monitor one’s distractions. Students do not follow a particular curriculum. The course content is based on a student’s learning profile in order to teach strategies. Students advance from grade to grade as long as they are engaged in the learning process, developing their strategies, and attending school (Tr. pp. 2664-2669, 2696; Exs. P-C, P-AAAA at p. 10).

XXXX testified that XXXX, when the Student arrived at XXXX he was very XXXX (Tr. pp. 2692-2694; Ex. P-AAAA at pp. 11-12).

XXXX testified that the plan incorporated XXXX (Tr. p. 2708; Ex. P-AAAA at p. 12).

XXXX testified that in the beginning of the XXXX school year, the Student was XXXX (Tr. pp. 2691-2692).

XXXX also created daily, goal-oriented checklists during Focus using feedback from the teachers from the prior day to identify the most effective goal for a particular day. The goals were shared with the Student’s teachers who would address the skills as needed. It was modified daily to accommodate the Student’s improving and changing XXXX needs. She testified that there was steady improvement in his XXXX. By the XXXX he was becoming XXXX (Ex. P-AAAA at p. 13).

In or about April 2013, the Student suffered a XXXX. XXXX stated in her affidavit that following the XXXX, some of the Student’s previously remediated XXXX re-emerged, although it was not as severe as when he first entered the school. The XXXX included XXXX, and the Head of School determined to implement a half-day schedule to address his changing needs, which included XXXX. He attended in the morning for his XXXX curriculum. He continued to receive XXXX during his half-day schedule. He missed two academic subjects, XXXX and XXXX, but because he had XXXX, he was able to easily and quickly make up the work. There was improvement in his XXXX during the last few months of the school year and he was able to finish the year on a positive note (Ex. P-AAAA at pp. 13-14).

However, XXXX testified that toward the end of the year, the Student still needed support in the area of XXXX. His XXXX. The Student had some “mistakes and errors” during the XXXX school year but after his XXXX there was a spike in XXXX. It became so frequent that the Head of School decided that it would be best to put him on a half-day schedule, because the mornings were more successful than the afternoons. He remained on a half-day schedule through the end of the year. XXXX did not recall telling the CSE that she estimated that the Student attended half-days between 20 and 25 times. She stated that there were no documents indicating how long the Student was on the half-day schedule, but that he was out of school for two weeks after the XXXX before being placed on a half-day schedule in XXXX (Tr. pp. 2669-2677).

XXXX testified that by the XXXX, the Student was XXXX (Tr. pp. 2678-2688; Ex. P-AAAA at p. 11).

XXXX testified that XXXX had no XXXX to indicate there was a connection between the Student’s XXXX and XXXX, which ultimately led to the implementation of the half-day schedule (Tr. pp. 2708-2710).

In her affidavit, XXXX stated that at no point during the XXXX school year did the Student ever have any XXXX (Tr. pp. 2688-2691; Ex. P-AAAA at p. 14).

XXXX, is a New York State licensed psychologist and a Board Certified Behavior Analyst at the Doctoral level. She testified by affidavit and appeared at the Impartial Hearing for cross-examination by the District. XXXX owns a private practice that is focused on using the evidence-based principles of ABA to serve children with Autism, ADHD, and other developmental disabilities. XXXX was qualified as an expert in behavior analysis. She performed an FBA for the Student in XXXX, during the Student’s XXXX grade year at XXXX, during the XXXX school year. She stated that she relied on her conversations with the Parents, interviews with teachers from XXXX, and the results of her FBA in preparing her affidavit. XXXX did not interview any teachers or other professionals from the District in preparing her affidavit or FBA (Tr. pp. 2796-2797, 2804-2808; Exs. P-BBBB at pp. 1, 4; D-34).

XXXX described ABA as a scientifically-based and research-based methodology to modify behavior and to teach skills to children. She testified that ABA uses principles to bring about meaningful and positive change in behavior and produces an analysis of the factors responsible for that improvement. As part of her employment, XXXX was commissioned by XXXX to design, supervise, and implement a program for students with XXXX, based on ABA principles. She was also responsible for designing, implementing, and administering parent training for each child’s parents. She began her private practice in 2001, in which she personally designs individualized ABA programs for her clients, regularly supervises ABA instructors to administer the programs, and makes sure they are implemented correctly both in school and at home. The ABA programs focus on developing and improving language and communication skills, play skills, behavior reduction, academic achievement, social, community, and daily living skills. XXXX regularly analyzes data and makes clinical decisions to either continue with an effective treatment or modify an ineffective treatment. She also trains parents in order to provide them with a system to promote success and independence for their children, including targeted skill development and behavior reduction, as well as promoting generalization of the acquired skills to the natural environment (Ex. P-BBBB at pp. 2-3).

XXXX met the Student on XXXX after a telephone consultation with the Parent on XXXX. She did not know the Student prior to meeting him, and she had no personal knowledge of the Student during the XXXX school year. The initial consultation lasted 7-1/2 hours, which included discussions at length with the Parents and an observation of the Student in the home and in school. She also spoke with one of the Student’s teachers at XXXX and with the Student. She stated she did not have intensive, clinical interviews with the XXXX staff at that point. The Student was attending XXXX for his XXXX grade year (i.e., the XXXX school year) when she met him. XXXX reviewed a number of evaluations and educational records. She had XXXX and the Parents record XXXX for a week, which she used to determine a hypothesis with respect to the functions of the Student’s XXXX (Tr. pp. 2810-2813, 2817-2818; Ex. P-BBBB at p. 6).

XXXX stated her belief that the Student exhibited XXXX (Tr. pp. 2883, 2982- 2984; Exs. P-BBBB at pp. 6-7, P-CCCC at pp. 1-2).

XXXX reviewed the Student’s IEP dated XXXX for the XXXX school year and acknowledged that the IEP indicated that the quality and depth of the his XXXX (Tr. pp. 2985-2992).

XXXX acknowledged information contained in the IEP at the end of the XXXX school year that the Student’s ability to XXXX (Tr. pp. 2991-2993).

XXXX stated her belief that the Student’s XXXX (Tr. pp. 2993-2995; Ex. P-BBBB at p. 11).

XXXX described her observations of the Student in his home and at XXXX on XXXX. She stated the Parents had concerns that the Student XXXX (Tr. pp. 2819- 2825, 2830-2835).

XXXX also believed that the XXXX developed by the District for the Student was contrary to the research and the science of behavior, regarding effectively implementing techniques and principles to bring about meaningful and positive changes in XXXX. She stated that XXXX (Exs. P-BBBB at pp. 7-10, P-CCCC at p. 3)

XXXX testified that the repeated use of XXXX (Ex. P-BBBB at p. 11).

XXXX stated that “according to parent reports and the XXXX the Student’s XXXX skyrocketed during the XXXX school year; that he XXXX. She also confirmed that she did not receive any information about the Student from any source other than the Parents (Tr. pp. 2841-2845, 2877-2878, 2906-2907; Ex. P-BBBB at p. 11).

XXXX testified that XXXX (Tr. pp. 2997-2999).

XXXX testified that XXXX (Tr. pp. 2859-2862).

XXXX stated that XXXX (Tr. pp. 2912-2915; Ex. P-BBBB at p. 11).

XXXX testified that XXXX (Tr. pp. 2945, 2948-2951).

XXXX testified that XXXX (Ex. P-BBBB at p. 12).

XXXX also testified that XXXX (Ex. P-BBBB at p. 12).

XXXX testified that based upon her discussions with the Parents about XXXX, their descriptions of the Student’s classes, and based on “a review of the records,” it was her opinion that his specific deficits were targeted; that he had XXXX (Ex. P-BBBB at pp. 12-14).

XXXX testified that her conclusions in her affidavit were based on her observations, her interviews at XXXX when she conducted the FBA, the Student’s IEPs, and interviews with the Parents. She confirmed that the Parents reported to her that after the Student went to XXXX, they saw a “totally different person.” However, she did not know whether or not XXXX had to increase the Student’s XXXX when he transferred to XXXX, and she stated she could not render an opinion regarding whether or not XXXX has any impact on XXXX (Tr. pp. 3004-3006).

XXXX conducted her FBA in XXXX. She testified that XXXX (Tr. pp. 3006-3008, 3010-3012; Exs. D-34, D-36 at pp. 15-20).

XXXX’s FBA states that she used an IEP for the XXXX school year in setting forth XXXX implemented by XXXX in her FBA. She clarified that the behavior management strategies were in fact implemented during the XXXX school year. She stated that there was no formal behavior intervention plan developed by XXXX for the XXXX school year. She also did not see any concrete, objective, measurable data collected by XXXX during the XXXX school year. XXXX confirmed that the Student was placed on half-days when he had “difficulty with XXXX.” He was not able to XXXX (Tr. pp. 3022-3027; Ex. D-34 at p. 6).

XXXX did not know whether the Student was exhibiting XXXX at XXXX. She stated in the FBA that the Student went to XXXX’s office to XXXX (Tr. pp. 211, 3028- 3029).

XXXX conducted an observation as part of her FBA. She stated that the Student XXXX (Tr. pp. 3030-3039; Ex. D-34 at pp. 10-11).

XXXX observed the Student leave his XXXX and XXXX (R. 3039-3041; Ex. D-34 at p. 10).

XXXX also observed the Student in his XXXX class. There were 11 students and 1 teacher in the class. The Student XXXX (Tr. pp. 3053-3061; Ex. D-34 at p. 11).

XXXX testified regarding her observation of the Student in his XXXX class. The Student XXXX (Tr. pp. 3088-3091; Ex. D-34 at pp. 12-13).

XXXX testified that the physical location of the Student’s classroom at XXXX for the XXXX school year was different, and there was a larger class size than there was when he attended XXXX in the XXXX school year. She stated that he was able to be educated in a class with 8 students at XXXX during the XXXX school year. She stated her belief that the structure of a school can affect a student’s behavior. She also stated that manipulating environmental factors may improve XXXX. XXXX stated that she did not know how many times the Student went to XXXX’s office on the day she observed him, and she did not know how many times he left class to go to XXXX’s office during the XXXX school year. She also had no information as to whether the Student needed to leave his classroom in the District during the XXXX school year (Tr. pp. 3091-3096).

XXXX testified that at the time she conducted her observation, the Student did XXXX (Tr. pp. 3098-3113).

XXXX stated that she conducted nine 10-minute experimental sessions in the home where she manipulated the situations to see XXXX (Tr. pp. 3107-3117; Ex. D-34 at pp. 15-17).

XXXX testified that she was not familiar with the curriculum at XXXX; that she was not certified as a teacher or as a school district administrator; nor did she have training as a school district administrator (Tr. pp. 3111-3113).

XXXX is the Student’s father. He testified regarding the manner in which the Parents XXXX the Student. The Parent provided information regarding the Student’s medical background, including his diagnosis as XXXX. The Parent described the Student as XXXX (Tr. pp. 3249-3255).

The Parents brought a doctor from XXXX to examine the Student as they were very concerned about the reference to XXXX. The doctor was not permitted to conduct a full examination, but he was able to perform some XXXX tests. The Parents determined to XXXX (Tr. pp. 3255-3257).

The Parent testified that at the time of the XXXX. The Parent had a discussion with XXXX regarding the Student’s classroom placement and it was suggested that he XXXX, which was one year chronologically behind the Student’s then current age. The Parents also had an opportunity to speak with XXXX regarding testing for special services. The Parent testified that XXXX recommended that the Parents wait a year, until XXXX, before having him tested. The Parents thereafter brought the children to XXXX and met with the nurse, XXXX, for an intake. The children were XXXX (Tr. pp. 3258-3267, 3613-3615, 3625-3626).

The Parent testified that for the XXXX school year, the Student was placed in a general education XXXX with XXXX services. The Parent wanted the Student to XXXX. The Parent referenced a document he created which consisted of a compilation of checks, invoices, and statements that related to various private services that the Parents furnished to the Student and his sister, starting with the XXXX school year through the XXXX school year. The Student received a number of private services. No reports of XXXX were provided to the CSE (Tr. pp. 3267-3274, 3616-3620; Ex. P-EEEE at pp. 1-5).

The Parent testified that XXXX (Tr. pp. 3275-3278).

The Parent stated that the feedback he received about the Student’s XXXX in school was different than what they were seeing at home. At school, he XXXX (Tr. pp.

3622-3624, 3626, 3628). The Student also saw XXXX, for a XXXX. XXXX suggested XXXX (Tr. pp. 3278-3285; Ex. P-EEEE at pp. 6-7).

After initiating XXXX with XXXX, the Parents sought XXXX. She introduced the concept of a XXXX, which the Parents used at home. The Parent stated that use of the XXXX was “a disaster over time” and XXXX (Tr. pp. 3626-3633, 3637-3638; Ex. P- EEEE at pp. 8-10).

In or about XXXX, the Parents requested that the Student be evaluated by the CSE (Ex. P-XXX). It was not until XXXX that the District was able to secure a XXXX. The District hired XXXX, to conduct testing, and also hired XXXX. She indicated that further testing would be appropriate (Tr. pp. 3286-3294; Exs. P-VVV, P-YYY).

The Parent testified that the CSE reconvened in XXXX to review XXXX report. The Parents had also obtained various private evaluations, including but not limited to a private evaluation by a XXXX, XXXX (Ex. P-WWW); an XXXX evaluation by XXXX; an XXXX by XXXX; and a XXXX evaluation by XXXX (Ex. P-TTT). The Parent stated that he submitted “a lot of those evaluations to the CSE.” It was determined by the CSE that further testing in the form of a XXXX evaluation was warranted, and at the Parents’ request, XXXX was selected to conduct the evaluation. XXXX had experience evaluating XXXX. Discussions with XXXX following testing revealed that the Student suffered from XXXX. XXXX made a number of recommendations following testing, including placement in an XXXX. He discussed the use of XXXX (Tr. pp. 3295-3308, 3697-3702; Ex. P-EEEE at pp. 72-73).

Beginning in or about XXXX, the Parents sought XXXX for the Student with the XXXX where he worked on XXXX. The Parent testified that the Student’s issues with XXXX were causing XXXX. When XXXX (Tr. pp. 3673-3675; Ex. P-EEEE at pp. 21-22).

The Parent testified that they still continued to see XXXX at home, including XXXX. After a discussion with XXXX and XXXX, the Parents agreed that the Student would move to a XXXX at XXXX immediately after the February break (Tr. pp. 3316- 3321, 3643-3647; Ex. P-EEEE at pp. 19, 29, 31-32, 43-44, 54, 56-58).

Also in or about XXXX, the Parents flew in a specialist in XXXX. No updated testing was conducted (Tr. pp. 3323-3330, 3661-3665; Ex. P-EEEE at p. 20).

The Parent testified that academically, XXXX (Tr. pp. 3321-3332, 3639-3642; Ex. P-EEEE at pp. 14-15).

In or about XXXX, the Parents sought the services of XXXX, to provide XXXX services to the Student to help XXXX. Also in or about XXXX, the Parents engaged the services of XXXX, who evaluated the Student and provided XXXX to him. In or about XXXX, the Parents had flown in XXXX (Tr. pp. 3335, 3675-3679, 3686-3687; Ex. P- EEEE at pp. 23-25, 30, 39).

Also in or about XXXX, the Parents engaged the services of XXXX to provide XXXX (Tr. pp. 3683-3684; Ex. P-EEEE at pp. 37-38).

The Parent testified that entering the XXXX school year, the CSE recommended placement for the Student in XXXX and the Parent agreed. During the XXXX, the Student participated in a District program called XXXX and continued to receive private XXXX and other services. He was also privately placed in a sports camp. The Student had an XXXX. He was unable to finish the XXXX and sports camp summer programs (Tr. pp. 3334-3338).

The Parents requested a CSE meeting which was held in XXXX (Ex. P-YY). They also requested an XXXX, which was not completed at that time. His special education teacher stated that the Student’s XXXX was currently the most challenging issue because it could change quickly and be unpredictable. The Parent stated that the Student was also having difficulties at home. A determination was made to hold off on an XXXX because XXXX was in the process of changing the Student’s XXXX (Tr. pp. 3339-3345).

The Parent testified that they were aware that the Student had been XXXX (Tr. pp. 3346-3356; Exs. P-TT, P-WW, D-8).

XXXX testified that the Parents requested XXXX. However, she stated that there was no suggestion that XXXX was necessary to address the Student’s performance in school. The District discussed XXXX, and the issues that the Parents were discussing at home were not being seen in school and did not appear to be impacting his school functioning. Much of the difficulties revolved around XXXX (Tr. pp. 4360-4362; Ex. D-24 at p. 46).

Commencing in or about XXXX, the Parents retained the services of XXXX to provide the Student with private XXXX. The Parent did not recall why their services were terminated and could not recall whether any reports were provided to the CSE (Tr. pp. 3687-3688; Ex. P-EEEE at p. 40).

Commencing in or about XXXX, the Parents changed the Student’s XXXX from XXXX to XXXX. XXXX provided XXXX for the Student as well as XXXX and XXXX. He also had expertise in XXXX and worked with the Student on XXXX. He was treated by XXXX until approximately XXXX, when the Parents determined to look for a more “conventional-type” XXXX. The Parent testified that XXXX (Tr. pp. 3644-3646, 3680- 3682, 3684-3685, 3690-3692, 3696-3697, 3856-3858; Ex. P-EEEE at pp. 33-36, 45-48, 55-58, 71).

The Parent testified that in the XXXX, they were provided with an XXXX from the District, which he did not believe was substantive and he described as “very superficial and generic.” He stated that he had a lot of conversations with XXXX about “what [they] saw as sort of various types of XXXX and such.” The Parent stated that the Student’s performance was “starting to move in the right direction” but stated his belief that much of the success was due to the private services that the Parents were providing outside of the school day, including his enrollment in a program called XXXX. The Parent described the program as impressive and that it tied together XXXX (Tr. pp. 3357-3363, 3688-3689; Exs. P-CCCC, P-EEEE at p. 41).

The Parent stated that a CSE meeting was held in preparation for the XXXX school year, where they expressed their concerns as to whether the XXXX placement was an interim step or whether placement in the class would be indefinite. He testified that various District personnel discussed their views as to the Student’s needs and that the CSE determined that he needed to continue placement in XXXX. However, the classroom was located at XXXX. The Parent was concerned about the Student’s transition back to XXXX, in light of his experience in the XXXX classroom, but stated he had cautious optimism since there were children that the Student knew from when he was placed in XXXX at XXXX (Tr. pp. 3363-3365; Ex. D-12).

The Parent stated his understanding that the XXXX which was developed during the XXXX school year would be appended to the XXXX IEP and that a new plan would be developed after an assessment was done upon the Student’s transition into the new classroom. In order to prepare the Student for his return to XXXX, the Parents created a home summer program for the Student which they called “XXXX” Although the Student no longer participated in XXXX at that time, the Parents were in touch with XXXX, who provided an XXXX program that he could use at home three times per day to keep him “XXXX.” The Parents also worked with XXXX, to develop “a XXXX perspective” as part of the home program. The Parents hired up to 4 different babysitters to assist the Student’s mother on occasions when the father was not present. He stated that every day there were scheduled activities that included XXXX. The Parent testified that by the end of the summer, the Student was in “such terrific shape” and “probably the best [he’d] seen him in all these years.” The Parent stated that the Student still XXXX (Tr. pp. 3366-3370).

The Parent testified that prior to the Student’s entrance into the XXXX class at XXXX for the XXXX school year XXXX contacted them in XXXX to discuss the Student’s transition. She asked the Parents about XXXX and they responded that the Student loves XXXX. The Parent also asked XXXX to read XXXX’ report, and she stated that she preferred to draw her own impressions about a child, which angered the Parent. The Parents were also informed that XXXX used a XXXX and that the XXXX would be posted on the board, which concerned them, since the Student was XXXX (Tr. pp. 3370-3374).

The Parent stated that from the beginning of XXXX until approximately the third week in XXXX, things were starting to become “unsettling.” The Student told his parents that he was having difficulty with other classmates; that a student with whom he was friends at XXXX told him that they could be friends outside of school but not in public; that he felt that other children were taunting him, and he had verbal altercations with another student who rode his bus and attended the XXXX with him. The Parent stated that they reported what they were learning from the Student to XXXX by speaking with her, through e-mails, and through the daily logs, and that initially there was no response from her (Tr. pp. 3374-3377; Exs. D-35, D-36, D-37, D-38, D-39, D-40.

D-41, D-42, D-43, D-44).

The Parent also testified that from the XXXX, they heard little, if anything, regarding XXXX issues in school. During the same period of time at home, the Student was becoming XXXX (Tr. pp. 3377-3380).

The Parent testified that XXXX. The Parent wrote the letter and it was placed in his file (Tr. pp. 3380-3389; Ex. P-BB).

The Parent stated that on XXXX, they met with XXXX, XXXX, XXXX, and an XXXX to discuss the events of XXXX. He asked XXXX whether she was XXXX the Student and she replied that she had. The Parent testified that he was unaware that XXXX were being performed during the XXXX school year until the meeting. Neither Parent told XXXX or anyone else at the District that they did not want them to XXXX the Student. The Parent also testified that it was possible that they told XXXX during the XXXX school year that she should employ the XXXX sooner to avoid XXXX. XXXX testified that the statement was made by the Parent in a CSE meeting following the Student’s XXXX. The Parent also raised his concerns that the Student was being bullied and that the Student felt isolated. XXXX responded that she did not perceive any bullying. XXXX also stated that she did not believe that the Student was bullied while he was with her. She stated that at times, the Student was teased; but it wasn’t to a level that would be above and beyond what any other child who attends XXXX school gets teased like. She was not saying that he was never taunted or teased, but that it was not a pervasive problem, and not beyond what would be considered typical for any XXXX in a public school (Tr. pp. 3388-3391, 3393-3395, 3771-3772, 4190, 4201-4202, 4362-4363).

The Parent stated his belief that the XXXX school year “became a nightmare.” He stated that they were being “shut out” of communication, although he stated that there were e-mails and some other communications, together with the school-home log. The home-school log contained communications between the Parents and XXXX for most, if not every school day in the XXXX school year. XXXX testified that the purpose of the logs was for her to let the Parents know what things were happening at school, and they could let her know about things that were happening at home, to keep communication open. She also testified that the logs were not “all inclusive” of all her communications with the Parents. She stated that the Student had XXXX and in his best interest, it helped the Parents to know how they were dealt with or how significant they were. It was also good for her to know what he was like at home. However, the Parent stated that XXXX’s responses were “somewhat generic, not directly addressing the concerns, or sometimes not even responding to the issues” that the Parents put in the logs. The Parent testified that the Student XXXX (Tr. pp. 3397-3401, 3780-3790, 3879-3880, 4133-4135, 4138, 4167, 4194, 4221-4223, 4358; Exs. D-35, D-36, D-37, D-

38, D-39, D-40, D-41, D-42, D-43, D-44).

XXXX testified that the District staff responded to the Parents’ concerns raised in the home-school logs. She stated that communication between the Parents and District staff existed in a lot of different ways. There was a home-school log between XXXX and the Parents; there were conversations at drop off and pickup; there were conversations with XXXX, herself, and XXXX; there were phone calls with XXXX; and there were CSE meetings to address concerns that the Parents raised. The evidence shows that the Parents communicated with XXXX regarding certain strategies that they employed with the Student at home, and XXXX agreed to employ them in the classroom, such as XXXX (Tr. pp. 3852-3856, 3862-3865, 3879-3880; 4353-4354; Exs. D-36 at pp. 36-40, 51, D-42 at pp.49-52).

The Parent testified that the Student had XXXX, and they took him to XXXX. The Student was XXXX (Tr. pp. 3405-3408).

With respect to XXXX, the Parent testified that XXXX (Tr. pp. 3409-3415, 3843- 3844, 3885-3888).

The Parent reviewed entries in a log kept by XXXX detailing incidents that occurred in XXXX and stated that he was not advised about the magnitude of the incidents. He was, however, aware that the Student had difficult days or needed prompting during XXXX, and that the Student was upset and unhappy during XXXX (Tr. pp. 3416-3421; Ex. D-19).

The Parent testified that the Student XXXX through the end of the XXXX school year. He stated that the Student expressed that XXXX. The Parents participated in a CSE meeting for the XXXX school year on XXXX. Prior to the meeting, the Parents engaged privately in a number of evaluations. They had a XXXX evaluation performed by XXXX (Ex. D-24 at pp. 17-55). XXXX also participated in the CSE meeting by telephone (Ex. D-27 at p. 1). The Parents submitted a letter from XXXX (Ex. D-24 at pp. 15-16). The Parents brought XXXX to the meeting, who discussed a number of charts and an evaluation that he conducted in XXXX. Neither the charts nor the evaluation were placed into evidence. XXXX voiced his opinion at the meeting that XXXX (Tr. pp. 3442-3448).

The Parent testified that both parents attended the CSE meeting with legal counsel; that the meeting might have gone beyond three hours; that they were given an opportunity to speak at the CSE and express their concerns; that all of the Parents’ experts who participated at the CSE meeting were given the opportunity to speak; that the CSE reviewed a letter from XXXX and XXXX’s evaluation; and that the CSE reviewed the results of a private XXXX. The CSE also reviewed the results of a XXXX evaluation by XXXX, which was mentioned in XXXX’s report. The Parents did not provide the XXXX evaluation to the District in preparation for the CSE meeting, but stated that the XXXX report was provided to XXXX and she summarized the report at the CSE meeting. The Parent confirmed that they did not know XXXX at the time of the CSE meeting, and the Student had also not yet been seen by XXXX and XXXX (Tr. pp. 3713-3717, 3750-3752, 3758; Ex. D-20).

XXXX participated in the meeting and reviewed her report. She diagnosed the Student with XXXX. There was also a great deal of discussion about bullying and what constituted bullying. XXXX and XXXX discussed situations which they believed did not constitute bullying. The Parents disagreed. XXXX stated that given the Student’s failure to XXXX (Tr. pp. 3448-3450; Ex. D-24 at pp. 17-55).

There was also discussion about the Student’s XXXX. XXXX stated that there might have been one or two events where XXXX. The Parent stated that it was a very long CSE meeting (Tr. pp. 3452-3454).

The CSE also discussed the Student’s XXXX during the XXXX school year and both XXXX and XXXX stated that, in response to the Parents’ request for “enhanced surveillance” of the Student, they were monitoring him daily and that he was attending and on task. XXXX confirmed that enhanced surveillance was occurring. XXXX stated that the Student was almost always on target, almost always productive, and almost always behaving. The general consensus among District staff was that the Student’s XXXX were under control, the staff was managing it, and that it had gotten a lot better in the last two months of the XXXX school year. The Parents stated their view that the Student had a terrible year; they talked about XXXX; they talked about bullying; about the Student’s XXXX; his XXXX; that he was XXXX; and that the XXXX was not an appropriate setting for him. XXXX testified that she spoke to the Student and observed him in XXXX. She also testified that she was confused by the Parents’ communications regarding XXXX, as it was “grossly out of alignment” with the child she saw in school. The CSE ultimately recommended XXXX’s XXXX class for the XXXX grade (Tr. pp. 3454-3461, 4149-4151, 4174-4176, 4197-4199, 4206-4212, 4215-4216, 4354-4357; Exs. D-17 at p. 7, D-21, D-27).

The Parent testified that throughout the XXXX, they continued to reach out to XXXX to see whether there was another placement in District, such as XXXX or XXXX, or another mainstream placement with an aide (excluding XXXX) or whether there was another public school district in which the Student could be placed, but their communications were unanswered. They also started exploring private placements, including XXXX and XXXX. Although XXXX had not accepted the Student at the time, the Parent submitted a ten-day notice of their intention to place the Student at XXXX. The Student was ultimately not accepted at XXXX, and the Parents continued to explore XXXX, which did accept him. The Parent submitted a second ten-day notice that the Student would be placed at XXXX for the XXXX school year. The documentary evidence shows that the Parents were considering out of District XXXX placements for the Student as early as XXXX (Tr. pp. 3461-3471, 3779-3780, 3791-3793, 3884-3885; Exs. D-23, D-42 at p. 24, P-N, P-O).

The Parent described the application process at XXXX. They signed the enrollment contract on September 3, 2012, and committed to paying tuition in the amount of $53,850.00 for the XXXX school year. The total tuition was paid by the Parents. The Parents also continued to provide additional private services outside of the school day for the Student. He continued to see XXXX. Both XXXX and XXXX supported the Parents’ decision to place the Student at XXXX (Tr. pp. 3471-3489, 3539- 3541, 3692-3695; Exs. P-H, P-I, P-J, P-EEEE at pp. 52-71).

The Parent testified regarding the reasons why they chose XXXX for the Student’s attendance for the XXXX school year. In addition to its small setting, all of the students were on one floor; the classes were small; at most there were 10 students in each class, and some classes had less students; but they were particularly impressed with the Focus program; the fact that they would be working on a number of deficits that the Parents identified, including XXXX; and that it was a community which fostered all the students working together. He believed that it was the type of school which met XXXX’ recommendations (Tr. pp. 3541-3542, 3907).

The Parent testified that they spoke with the Student about his move to XXXX in late August, and felt that he realized this was a chance for him to have a fresh start. The Student met with XXXX, who they learned would be his Focus teacher, and he also met with the Dean, XXXX. XXXX was designated as the Student’s “go to person” any time he had issues. He stated that the Student went to XXXX routinely any time he had issues or concerns, but that with time, he had to go less and less to see her, as he became more acclimated in school. At the beginning of the year, the Student was still XXXX. The teacher would suggest that the Student XXXX. In the beginning, this would happen two or three times per week (Tr. pp. 3542-3547).

The Parent testified that they had almost daily communication with XXXX, whether by telephone, e-mail, or in person, on the days the Parents picked him up. There was also a weekly scheduled call between the Parents and XXXX. They discussed XXXX’s observations and issues in school and what was happening at home. They also gave permission for XXXX to speak with XXXX, and she built a “diagnostic analysis” of the Student (Tr. pp. 3547-3549).

At home, the Student was still XXXX (Tr. pp. 3550-3552).

The Parent testified that the Student continued to see private providers outside of the school day at XXXX. He continued to see XXXX, but on a less frequent basis at regularly scheduled appointments. There were no more emergency visits to XXXX. He also saw XXXX for XXXX on a regular basis. He continued with XXXX and worked with XXXX, and they “tried a number of other different services.” Beginning in or about XXXX, the Student was seen by XXXX through an organization known as XXXX, for XXXX. But he no longer needed XXXX. The Parents worked with him at home to assist with homework, and for the most part, he was starting to do his homework on his own (Tr. pp. 3553-3554, 3695-3696; Ex. P-EEEE at p. 70).

The Parent testified that both XXXX and XXXX saw positive changes in the Student during the XXXX school year. In XXXX, the Student performed well. The Parent stated that at the CSE meeting for the XXXX school year, there was discussion that the Student’s scores declined in a number of subtests of the XXXX. He recalled XXXX stating that educational decisions were not based on any particular score, and XXXX, one of the District’s triennial evaluators, stating that standardized scores suggest a reflection of how a student is doing at any point in time, and that inconsistent scores could be the result of attention, boredom, or other reasons. The Parent also reviewed the Student’s test results on the XXXX and the XXXX and expressed his opinions about the Student’s progress at XXXX during the XXXX school year based on the results of testing (Tr. pp. 3556-3573, 3702-3712).

The Parent stated that XXXX, in the beginning of the XXXX school year, the Student did not XXXX (Tr. pp. 3573-3576).

The Parent stated that XXXX, during the XXXX school year, the Student’s XXXX “skyrocketing.” He was XXXX (Tr. pp. 3576-3579).

The Parent testified that as of XXXX, he was “a different boy.” He XXXX (Tr. pp. 3581-3584).

The Parent stated that there were no reports of the Student XXXX at XXXX, although he might be XXXX. There also was no XXXX (Tr. pp. 3584-3592, 3657-3660; Ex. D-26 at p. 60).

The Parent testified that the Student was not XXXX by XXXX staff (Tr. pp. 3592- 3593, 3657-3660; Ex. D-26 at p. 60).

At the end of the XXXX school year, the Parent testified that he asked XXXX to write a letter to the CSE regarding the Student’s success at XXXX during the XXXX school year, which he did. The Parent did not agree with the characterization by XXXX of the Student’s XXXX at XXXX as XXXX but he did not consider the characterization as material. He also did not agree with XXXX’s statement that the Student came far in the past three years. He agreed that the Student had tremendous progress in the third year (i.e., at XXXX), but he did not believe the Student progressed in the District’s programs, but for the implementation of the private services the family obtained for the Student outside of the school day. The Parent testified that there was never a time when the Student attended school in the District that the Parents did not provide supplemental services. However, he clarified that during the Student’s XXXX grade year with XXXX, they discontinued the use of XXXX and XXXX which were administered by the Parents to the Student after the school day. The Parent testified to his belief that extensive use of the software at home was instrumental in the progress the Student made in XXXX grade (Tr. pp. 3646-3657; Ex. D-26 at p. 60).

XXXX is a school nurse at XXXX. She was familiar with the Student when he came to her office to see her. She testified that she was not aware of any staff at XXXX performing XXXX on the Student during the school day. XXXX stated that if there was a XXXX, then she would be asked to assess the individuals. During the XXXX school year, no staff working with the Student sought her advice as it related to XXXX (Tr. pp. 3959, 3961, 3968, 3973, 3980).

XXXX is the Director of the XXXX. She provided testimony by telephone. She has published journal articles on XXXX and studies on XXXX. She is the primary developer of XXXX. She described XXXX as a XXXX. It is one of a number of models used nationally or internationally. XXXX was qualified as an expert in TCI and in standards of practice for residential care/residential services. She does not know the Student (Tr. pp. 4239, 4244-4245, 4248-4249, 4253, 4266-4267, 4286).

XXXX described the TCI training course. There are two levels, and they train trainers. It is a 5 day program with a test at the end. If an individual passes the test and attendance requirements, they leave with the materials and go back to their schools or agencies and train staff to manage and prevent crises in their programs or classrooms. TCI provides them with the training materials, the tests, and the agendas to follow for the trainings. There are 3 different training agendas that are dependent on if they’re teaching all of the physical skills, none of the physical skills, or part of the physical skills. There is a 4 day program if they’re not training all of the physical skills. There is a 3 day program if they’re not training any of the physical restraints at all. The 5 day program covers physical restraints. Seventy-five percent of the training is how to prevent crises from occurring and how to de-escalate children when they start getting upset. What they are trying to do is get people to be skilled enough that they don’t end up having to restrain children (Tr. pp. 4253-4256).

XXXX testified that the minimum requirement, for refresher courses, is that a person would need to attend refresher training for six hours every six months, and be retested in the physical skills every six months. There is also an annual written test in all of the other skills and information. The TCI certification comes from the school or agency (Tr. pp. 4256-4257).

XXXX described different types of restraints. There are restraints that are designed specifically for XXXX that would not place them in a prone or supine position, known as a “XXXX”. XXXX described the steps involving in filing an incident report where a restraint has been employed, and the types of information that should be included. XXXX stated that she checked her database and could not find any certified TCI trainers at the District (Tr. pp. 4260-4265, 4268).

XXXX described physical restraint as a “high risk” intervention and when one decides to do a physical restraint, one is looking for whether there is “imminent risk.” She stated that if a child is distraught emotionally or physically after a restraint, and would need to be with their parent, sending the child home is appropriate, but not as a punishment (Tr. pp. 4279, 4285-4286).

XXXX testified that TCI recognizes that, regardless of whatever strategies and procedures are used to de-escalate a situation, there still may be situations were physical intervention is necessary, when there is imminent risk of physical harm to that child or other children or staff. She stated that placing one’s hands on a child to separate them from another is not considered to be a restraint. XXXX stated that TCI states that the failure to intervene in order to prevent one child from hurting another is considered neglect (Tr. pp. 4290-4292, 4295).

XXXX described the “XXXX restraint” technique as consisting of several steps, and part of the technique is getting the child to the floor by securing the child’s arms and then stepping backwards, bringing the child down on your inner thigh to the floor while you’re going into a kneeling position. She stated that a restraint of 5 minutes in duration is an average amount of time to enable a child to de-escalate (Tr. pp. 4296-4297).

XXXX confirmed that she did not know the Student; she never reviewed any documents pertaining to the Student; that she had no knowledge about the interventions that were employed by the District for the Student; and that her testimony related to the TCI model as it is designed and implemented in organizations, but not in regard to this particular case (Tr. pp. 4297-4298).

CONCLUSIONS OF LAW

Two purposes behind the Individuals with Disabilities Education Act (“IDEA”) [20 U.S.C. Sections 1400-1482] are (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected [20 U.S.C. Section 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Education v. Rowley, 458 U.S. 176, 206-207 (1982)].

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [Rowley, 458 U.S. at 206-207; R.E. v. New York City Department of Education, 694 F.3d 167, 189-190 (2d Cir. 2012); M.H. v. New York City Department of Education, 685 F.3d 219, 245 (2d Cir. 2012); Cerra v. Pawling Central School District, 427 F.3d 186, 192 (2d Cir. 2005)]. Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not [R.E. v. New York City Department of Education, 694 F.3d at 190-191]. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA [M.H. v. New York City Department of Education, 685 F.3d at 245; A.C. v. Board of Education of the Chappaqua Central School District, 553 F.3d 165 (2d Cir. 2009); Grim v. Rhinebeck Central School District, 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Central School District, 2007 U.S. Dist. LEXIS 9873 (S.D.N.Y. 2007)]. Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [20 U.S.C. Section 1415(f)(3)(E)(ii); 34 C.F.R. Section 300.513(a)(2); 8 N.Y.C.R.R. 200.5(j)(4)(ii); Winkelman v. Parma City School District, 550 U.S. 516, 525-526 (2007); R.E. v. New York City Department of Education, 694 F.3d at 190; M.H. v. New York City Department of Education, 685 F.3d at 245; A.H. v. Department of Education, 394 Fed. App’x 718, 720, 2010 WL 3242234 (2d Cir. August 16, 2010); E.H. v. Board of Education, 2008 WL 3930028, at *7 (N.D.N.Y. August 21, 2008), aff’d 361 Fed. App’x 156, 2009 WL 3326627 (2d Cir. October 16, 2009); Matrejek v. Brewster Central School District, 471 F.Supp.2d 415, 419 (S.D.N.Y. 2007), aff’d 293 Fed. App’x. 20, 2008 WL 3852180 (2d Cir. August 19, 2008)].

The IDEA directs that, in general, an Impartial Hearing Officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [20 U.S.C. Section 1415(f)(3)(E)(i); 34 C.F.R. Section 300.513]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [Rowley, 458 U.S. at 203]. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” [Walczak v. Florida Union Free School District, 142 F.3d 119, 130; see Rowley, 458 U.S. at 189]. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free School District, 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]; see Grim, 346 F.3d at 379].

Additionally, school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132]. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student with an opportunity greater than mere ‘trivial advancement’” [Cerra, 427 F.3d 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P. v. v. Mamaroneck Union Free School District, 554 F.3d 247, 254 (2d Cir. 2009); see P. v. Newington Board of Education, 546 F.3d 111, 118-119 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192]. The student’s recommended program must also be provided in the least restrictive environment (“LRE”). In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [20 U.S.C. Section 1412(a)(5)(A); 34 C.F.R. Sections 300.114(a)(2)(i), 300.116(a)(2); 8 N.Y.C.R.R. Sections 200.1(cc), 200.6(a)(1); see P. v. Newington Board of Education, 546 F.3d at 114; Gagliardo v. Arlington Central School District, 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free School District, 751 F.Supp.2d 552, 573-580 (S.D.N.Y. 2010) aff’d 486 Fed. App’x 954, 2012 WL 4946429 (2d Cir. October 18, 2012); E.G. v. City School District of New Rochelle, 606 F.Supp.2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Education, 583 F.Supp.2d 422, 428 (W.D.N.Y. 2008)]. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade” [34 C.F.R. Section 300.101(c)(1); 8 N.Y.C.R.R. 200.4(c)(5)]. The proper inquiry as to the appropriateness of an IEP is whether the IEP was reasonably calculated to confer educational benefit at the time the CSE devised the IEP. Antonaccio v. Board of Education of the Arlington Central School District, et. al., 281 F.Supp.2d 710, 724-725 (S.D.N.Y. 2003); Application of the Board of Education of Harrison Central School District, Appeal No. 04-034.

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

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance [see 34 C.F.R. Section 300.320(a)(1); 8 N.Y.C.R.R. Section 200.4(d)(2)(i); Tarlowe v. New York City Board of Education, 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation: of the student, as well as the “academic, developmental, and functional needs” of the student), establishes annual goals designed to meet the student’s needs resulting from the student’s disability and enable him or her to make progress in the general education curriculum [see 34 C.F.R. Section 300.320(a)(2)(i), (2)(i)(A); 8 N.Y.C.R.R. Section 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [see 34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v); see also Application of the Department of Education, Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Department of Education, Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9]. Subsequent to its development, an IEP must be properly implemented [8 N.Y.C.R.R. Section 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087].

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim [Florence County School District Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Department of Education, 471 U.S. 359, 369-370 (1985); R.E., 694 F.3d at 184-185; T.P., 554 F.3d at 252]. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA [471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192]. “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE [Burlington, 471 U.S. at 370-371; see 20 U.S.C. Section 1412(a)(10)(C)(ii); 34 C.F.R. Section 300.148].

The burden of proof is on the school district during an Impartial Hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement [Education Law Section 4404(1)(c); see R.E., 694 F.3d at 184-185; M.P.G. v. New York City Department of Education, 2010 WL 3398256 at *7 (S.D.N.Y. August 27, 2010)].

A private school placement must be “proper under the Act” [Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370], i.e., the private school offered an educational program which met the Student’s special education needs [see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp.2d at 419]. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement [Carter, 510 U.S. at 14]. The private school need not employ certified special education teachers or have its own IEP for the student [Carter, 510 U.S. 7; Application of the Board of Education, Appeal No. 08-085; Application of the Department of Education, Appeal No. 08-025; Application of the Board of Education, Appeal No. 08-016; Application of the Board of Education, Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, 01-105]. Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” [Gagliardo, 489 F.3d at 112; see M.S. v. Board of Education, 231 F.3d 96, 104 (2d Cir. 2000)]. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement ...” [Gagliardo, 489 F.3d at 112; Frank G. v. Board of Education, 459 F.3d at 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207 and identifying exceptions)]. Parents need not show that the placement provides every special service necessary to maximize the student’s potential [Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 (citing Berger v. Medina City School District, 348 F.3d 513, 522 (6th Cir. 2003) (stating “evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA”)]. A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a handicapped child’” [Gagliardo, 489 F.3d at 115 (emphasis in original), citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89].

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

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

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

The final criterion for an award of tuition reimbursement is whether the parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA [Burlington, 471 U.S. at 374; M.C. v. Voluntown Board of Education, 226 F.3d 60, 68 (2d Cir. 2000)]; see Carter, 510 U.S. at 16 [“Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”]. Such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” [Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530, 533 (N.D.N.Y. 2001), citing Town of Burlington v. Department of Education, 736 F.2d at 773, 801-02 (1st Cir. 1984) aff’d 471 U.S. 359 (1985). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent’s conduct precluded the CSE’s ability to develop an appropriate IEP [Warren G. v. Cumberland County School District, 190 F.3d 80, 86 (3d Cir. 1999); see Application of the Board of Education, Appeal No. 04-102; Application of the Board of Education, Appeal No. 04-026.

The IDEA provides that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense” [20 U.S.C. Section 1412(a)(10)(C)(iii)(I); see 34 C.F.R. Section 300.148(d)(1)]. This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools” [Greenland School District v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)]. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with the statutory provision [Greenland, 358 F.3d at 160; Ms. M. v. Portland School Committee, 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City School District, 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public School Committee, 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial School District, 2007 WL 3085854, at *13 (E.D. Pa. October 22, 2007)].

Courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider “retrospective testimony” regarding services not listed in the IEP. R.E. et.al. v New York City Department of Education, 694 F.3d 167 (2d Cir. 2012). However, the Second Circuit rejected a rigid “four-corners rule” that would prevent a court from considering evidence explicating the written terms of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP. Id. at 186.

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

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within 2 years of when the party knew or should have known of the alleged action that forms the basis of the complaint [20 U.S.C. Section 1415(f)(3)(C); see also 20 U.S.C. Section 1415(b)(6)(B); Educ. Law Section 4404(1)(a); 34 C.F.R. 300.511(e); 8 N.Y.C.R.R. 200.5(j)(1)(i); Somoza v. New York City Department of Education, 538 F.3d 106, 114 n. 8 (2d Cir. 2008) (noting that the Second Circuit applied the same “knows or has reason to know” standard of IDEA claim accrual both prior to and after codification of the standard by Congress); M.D. v. Southington Board of Education, 334 F.3d 217, 221-222 (2d Cir. 2003); G.W. v. Rye City School District, 2013 WL 1286154, at *17 (S.D.N.Y. March 29, 2013), aff’d 554 Fed. App’x 56, 57 (2d Cir. February 11, 2014); R.B. v. Department of Education, 2011 WL 4375694, at *2, *4 (S.D.N.Y. 2011); Piazza v. Florida Union Free School District, 777 F.Supp.2d 669, 687-688 (S.D.N.Y. 2011)]. Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a “specific misrepresentation” by the district that it had resolved the issues forming the basis for the due process complaint notice or 2) the district withheld information from the parent that the district was required to provide [20 U.S.C. Section 1415(f)(3)(D); Education Law Section 4404(1)(a); 34 C.F.R. Section 300.511(f); 8 N.Y.C.R.R. Section 200.5(j)(1)(i); R.B., 2011 WL 4375694, at *6].

The hearing record shows that the Parents filed their due process complaint notice on June 17, 2014 (Ex. IHO-3), and therefore, barring either of the aforementioned exceptions, any of the Parents’ claims that accrued on or before June 16, 2012 are time-barred [see 20 U.S.C. Section 1415(f)(3)(D); Education Law 4404(1)(a); 34 C.F.R. Section 300.511(f); 8 N.Y.C.R.R. Section 200.5(j)(1)(i); R.B., 2011 WL 4375694, at *6].

The Parents raise a number of legal issues in their Closing Brief that were not raised in their Due Process Complaint Notice. As such, I do not make any findings with respect to any alleged violation of Section 504, the ADA, or Education Law Section 3214. See 20 U.S.C. Section 1415(f)(3)(B); 34 C.F.R. Sections 300.508(d)(3)(i) and 300.511(d); 8 N.Y.C.R.R. Section 200.5(j)(1)(ii). For the same reason, I make no findings with respect to multiple issues raised in the Parents’ Closing Brief involving the use of physical restraints by the District during the XXXX and XXXX school years, as well as other alleged denials of FAPE for the XXXX and XXXX school years [compare Ex. IHO-3 with Ex. IHO-32]. The Due Process Complaint Notice in this matter was filed on June 17, 2014, just one day prior to the expiration of the two-year statute of limitations for challenging the CSE’s recommendations for the Student made on XXXX for the XXXX school year. Any of the Parents’ claims that accrued on or before June 16, 2012 are time-barred [See Ex. IHO-3 and Ex. D-27 at p. 1].

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

1. Failure to provide an appropriate program and placement for the XXXX school year which adequately addressed [the Student’s] academic, physical, social, and emotional needs.

The Parents assert that the program and placement offered by the District for the XXXX school year did not include any appropriate methods and/or strategies to adequately address the Student’s XXXX or XXXX (Ex. IHO-3 at p. 5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. The evidence shows that the CSE had the following evaluations and reports at the time it made its recommendations on June 18, 2012 for the XXXX school year (Ex. D-27 at pp. 5-6): Academic testing results from the XXXX conducted on XXXX (Ex. D-24 at pp. 2-4); the Student’s XXXX grade report card (Ex. D-24 at pp. 5-8); a private XXXX Evaluation by XXXX dated XXXX (Ex. D-24 at pp. 9-14); a letter from the Student’s XXXX dated XXXX (Ex. D-24 at pp. 15-16); a private XXXX Evaluation dated XXXX (Ex. D-24 at pp. 17-55) which includes Parent and Teacher XXXX (Ex. D-24 at pp. 39-40, 54-55) and XXXX testing (Ex. D-24 at pp. 21, 52); an XXXX dated XXXX (not in evidence); a XXXX Evaluation dated XXXX (not in evidence); a XXXX Report dated XXXX (Ex. P-QQQ); a XXXX Evaluation dated XXXX (Ex. P-UUU); a XXXX Evaluation dated XXXX (Ex. P-VVV); and a XXXX recommendation from the Student’s XXXX at the meeting (Ex. D-27 at pp. 1, 3, 9). In addition, both XXXX, who conducted the private XXXX Evaluation, and XXXX, the Student’s private XXXX, participated in the CSE meeting held on XXXX (Ex. D-27 at pp. 1-4). The Student’s triennial evaluation was conducted during the XXXX school year (Exs. D-26, D-27 at p. 4). 6

A review of the IEP for the XXXX school year shows that the Student’s strengths and weaknesses in the areas of academic achievement, social development, physical development, and management needs accurately reflect the results of evaluations to identify the Student’s needs. Academically, the Student is XXXX (Exs. D-24 at p. 47, D- 27 at p. 7). XXXX administered the XXXX in XXXX. In the area of XXXX, the Student scored XXXX (Exs. D-24 at p. 3, D-27 at p. 7). In the classroom, the Student was working below grade level in XXXX. However, he made strong growth, gaining three XXXX, and decreased the discrepancy between his achievement and grade level expectation. In XXXX, his XXXX level, as measured by XXXX system, was XXXX (Tr. pp. 716-720, 743-745, 759-763; Exs. D-24 at pp. 5-7, 46, D-27 at p. 7, D-28 at p. 1).

Other components of the Student’s XXXX program were XXXX (Tr. pp. 3871- 3872; Exs. D-24 at pp. 5-7; D-27 at p. 7, D-41 at p. 8).

In XXXX, an area of strength, the Student scored within the average range on both the XXXX (Ex. D-24 at pp. 3-4). In the classroom, he was working on grade level,

None of the documents that comprise District Exhibit 26, with the exception of two physicians’ letters dated XXXX and XXXX, were in existence at the time of the Student’s annual review for the XXXX school year and have not been considered by the IHO in determining Prong 1 (i.e., whether the District’s recommendations for the Student for XXXX school were appropriate). The documents were, however, admitted into evidence for purposes of making a determination on Prong 2 (i.e., whether XXXX was an appropriate placement for the XXXX school year). and he was able to use the XXXX grade curriculum without modifications (Tr. pp. 817- 818; Exs. D-24 at pp. 5-7; D-27 at pp. 2, 7).

In the area of XXXX, the Student scored within the above average range on the XXXX and in the below average range in XXXX based on the results of the XXXX (Ex. D-24 at pp. 3-4). In the classroom, the Student was performing on grade level in XXXX (Exs. D-24 at pp. 5-7, D-27 at p. 8). He was taught XXXX in a group of 3 students and he received one-on-one conferences to talk about skills specific to his XXXX. The Student had XXXX (Tr. pp. 775-787, 789-798; Exs. D-29, D-30).

In the area of XXXX, the Student scored below average based on the results of the XXXX (Ex. D-24 at pp. 3-4). In the classroom, he performed below grade level in that area. Progress in XXXX seemed to be slower than in other content areas. In the area of XXXX (Tr. pp. 763-766; Exs. D-24 at pp. 5-7, D-27 at p. 8, D-28 at p. 1).

In the area of XXXX, the Student’s XXXX (Exs. D-20, D-27 at pp. 2-3, 9). 7

In the area of XXXX, the Student was able to manage grade level materials. He completed work assignments on a regular basis. He was motivated to stay on pace with other XXXX graders and do the same assignments. He was still developing his ability to XXXX when needed. Once XXXX (Ex. D-27 at p. 9).

XXXX, the quality and depth of the Student’s XXXX increased in the classroom. The instances of XXXX (Ex. D-27 at pp. 9-10).

The Student’s ability to XXXX (Exs. D-24 at pp. 39-40, D-27 at p. 10). Although the Parents did not provide the private XXXX Speech and Language Therapy Evaluation to the District prior to the June 18, 2012 CSE meeting, the results of testing were reviewed by XXXX as part of her Neuropsychological Evaluation at the CSE meeting (Tr. pp. 3750-3752; Exs. D-20, D-24 at p. 21).

Continuing needs in the area of XXXX included XXXX (Exs. D-24 at pp. 35, 38- 40, D-27 at p. 11).

With respect to XXXX, the Student has XXXX (Exs. D-24 at pp. 9, 15, 17-18, D- 27 at pp. 11-12). He is XXXX (Exs. D-24 at p. 41, D-27 at p. 12). At the time of his annual review for the XXXX school year, he had a daily XXXX (Exs. D-24 at pp. 13, 41, D-27 at p. 12).

In the area of XXXX (Exs. D-24 at pp. 46-49, D-27 at p. 12).

The Student also needed XXXX as follows: XXXX (Exs. D-24 at pp. 46-49, D-

27 at p. 12).

The Student also needed XXXX as follows: XXXX (Exs. D-24 at pp. 46-49, D-27

at p. 13).

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

An IEP must also establish annual goals related to a student’s needs. A review of the IEP for the XXXX school year includes XXXX (Tr. p. 936; Ex. D-27 at p. 14).

The IEP for the XXXX school year includes XXXX goals. Goals XXXX. XXXX agreed that the XXXX goals were appropriate (Tr. p. 2006).

The IEP for the XXXX school year contained XXXX goals in the area of XXXX. The goals were recommended by XXXX, with input by XXXX (Tr. p. 941). Goal XXXX (Tr. pp. 2006-2008).

The IEP for the XXXX school year contained XXXX goals in the areas of XXXX. XXXX recommended these goals in conjunction with XXXX (Tr. pp. 941-942). Goal XXXX (Tr. p. 948; Ex. D-27 at p. 16).

The IEP for the XXXX school year also contains XXXX goals. Goal XXXX (Exs. D-24 at pp. 9-14, D-27 at pp. 3, 16).

Neither the Parents nor the private providers expressed any disagreement with the appropriateness of the goals at the CSE meeting and all were given an opportunity to assist in their development. XXXX, XXXX, XXXX, and XXXX each stated their belief that the goals were appropriate and focused on the Student’s needs and skills (Tr. pp. 192-194, 546-547, 933, 1359-1366; Ex. D-27 at pp. 13-16). XXXX testified that the XXXX goals recommended by the CSE for the XXXX school year were appropriate but that she would have added additional goals based on XXXX’s report. She also testified that the XXXX goals were appropriate (Tr. pp. 1974-1975, 2005-2008).

I find that the IEP for the XXXX school year contained appropriate annual goals related to the Student’s needs.

In addition, the IEP must provide for the use of appropriate special education services. At the CSE meeting held on XXXX, the Committee recommended that the Student continue to receive XXXX. XXXX would have been the teacher for the XXXX school year.

XXXX described the XXXX. She XXXX (Tr. pp. 709-715).

The CSE also recommended related services including XXXX (Tr. pp. 948-949; Exs. D-24 at p. 46, D-27 at pp. 16-17).

XXXX testified that the Student needed XXXX (Tr. pp. 1962-1964, 1970, 1973, 2065-2071, 2112-2115; Ex. D-20 at p. 9).

XXXX testified that during the XXXX school year he found that much of the Student’s XXXX. The record reflects that on XXXX, the Parents revoked their consent for communications between the District and any of the Student’s private providers (Ex. D-22).

XXXX made specific recommendations for private school placement in either XXXX. XXXX testified that he had no personal knowledge about any of the schools he recommended, and confirmed that the Parents did not choose any of the private schools recommended by him (Tr. pp. 2481-2490; Ex. P-ZZZ at p. 13).

The IEP also includes Supplementary Aids and Services/Program Modifications/Accommodations including XXXX (Tr. pp. 949-950; Ex. D-24 at pp. 46- 49).

XXXX testified that XXXX. The recommended program modifications are consistent with what was recommended by XXXX in her evaluation (Tr. pp. 950-952; Ex. D-24 at pp. 46-49).

The IEP for the XXXX school year also included Test Modifications, including XXXX. XXXX also recommended these test modifications (Exs. D-24 at pp. 46-49, D- 27 at p. 18).

XXXX, XXXX, XXXX, XXXX, and XXXX all testified that the CSE’s program recommendations for the Student for the XXXX school year were appropriate and were reasonably calculated to enable the Student to make meaningful educational progress in the LRE (Tr. pp. 194-197, 547-548, 952-954, 1367-1368, 1514-1518; Ex. D-27 at p. 4).

The Student’s recommended program must also be provided in the LRE. In determining an appropriate placement in the LRE, the IDEA requires that children with disabilities be educated to the maximum extent appropriate with children who are not disabled and that special classes, special schooling or other removal of children with disabilities from the regular educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

During the XXXX school year, the Student was mainstreamed with one other student into XXXX classes (i.e., specials), which included XXXX. He and the other student attended encore classes with an aide. The record reflects that the Student had difficulty in the winter and, to a lesser extent, the spring, with XXXX. XXXX stated that most of XXXX (Tr. pp. 910-916; Ex. D-24 at pp. 5-8).

The record reflects that the Student’s mainstream art teacher, XXXX, was enthusiastic about his participation in art during the XXXX school year. She stated that his participation in the art class, which consisted of 20 students, was pretty typical and he had no XXXX problems; that he enjoyed art class; that he was motivated and highly energized by the projects; that he had an invested interest in art activities; and that he had a strong memory. She also stated that he positively participated in an elective art class that took place prior to the school day for an 8-week period (Tr. pp. 173-174, 3814; Ex. D-27 at p. 3). The Student was also successfully mainstreamed on an informal basis for XXXX, and the general education teacher reported that he was XXXX (Ex. D-27 at p. 7). The Parent testified that they were aware that the Student was mainstreamed during the XXXX school year; they believed that the Student enjoyed it; and they encouraged it (Tr. pp. 194, 3871-3872; Exs. D-27 at p. 13, D-41 at p. 8).

The CSE determined that the Student had significant delays in XXXX.

The evidence shows that the Student benefits from mainstreaming. I find that the CSE’s recommendations are appropriate and consistent with its legal obligation to provide an educational program for the Student in the LRE.

In sum, I find that the CSE’s recommended program for the XXXX school year was reasonably calculated to confer meaningful educational benefit in the LRE. The evidence shows that the Student made educational progress in his placement in the XXXX during the XXXX school year, as demonstrated by the testimony, the Student’s Progress Report on Goals, the results of standardized testing, and the Student’s report card, and the CSE’s recommendation for the Student’s continuation in the XXXX for the XXXX school year was reasonably calculated to confer meaningful educational benefit in the LRE.

2. Failure to conduct a XXXX to determine XXXX for the XXXX school year; and 3. Failure to develop and implement an appropriate XXXX.

Under the IDEA, a CSE may be required to consider special factors in the development of a student’s IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior [20 U.S.C. Section 1414(d)(3)(B)(i); 34 C.F.R. Section 300.324(a)(2)(i); see 8 N.Y.C.R.R. Section 200.4(d)(3)(i); see also E.H. v. Board of Education, 361 Fed. App’x 156, 160-161, 2009 WL 3326627 (2d Cir. October 16, 2009); A.C. v. Board of Education, 553 F.3d 165, 172 (2d Cir. 2009); J.A. v. East Ramapo Central School District, 603 F.Supp.2d 684, 689 (S.D.N.Y. 2009); M.M. v. New York City Department of Education, 583 F.Supp.2d 498, 510 (S.D.N.Y. 2008); Tarlowe v. New York City Board of Education, 2008 WL 2736027, at *8 (S.D.N.Y. July 3, 2008); W.S. v. Rye City Central School District, 454 F.Supp.2d 134, 149-150 (S.D.N.Y. 2006). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. Section 1414(d)(1)(A)(i)(IV); 34 C.F.R. Section 300.320(a)(4); 8 N.Y.C.R.R. Section 200.4(d)(2)(v)(a), (b)(3); Piazza v. Florida Union Free School District, 2011 WL 1458100, at *1 (S.D.N.Y. April 7, 2011); Gavrity v. New Lebanon Central School District, 2009 WL 3164435, at *30 (N.D.N.Y. September 29, 2009); P.K. v. Bedford Central School District, 569 F.Supp.2d 371, 380 (S.D.N.Y. 2008).

In New York State, policy guidance explains that “the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address (among other things, a student’s interfering behaviors) in order for the student to receive a (FAPE)” (“Guide to Quality Individualized Education Program (IEP) Development and Implementation,” at p. 22, Office of Special Educ. (Dec. 2010), available at http://www.p12.nysed.gov/specialed/publications/iepguidance/

IEPguideDec2010.pdf). “The behavioral interventions and/or supports should be indicated under the applicable section of the IEP” and, if necessary, the “student’s need for a (BIP) must be documented in the IEP” (id.). State procedures for considering the special factor of a student’s behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student [8 N.Y.C.R.R. Section 200.4(d)(3)(i); 200.22(a), (b)]. An FBA is defined in State regulations as “the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment” and “include(s), but is not limited to, 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 (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it” [8 N.Y.C.R.R. Section 200.1(r)]. State regulations require that an FBA shall be based on multiple sources of data and must be based on more than the student’s history of presenting problem behaviors [8 N.Y.C.R.R. Section 200.22(a)(2)]. An FBA must also include a baseline setting forth the “frequency, duration, intensity and/or latency across activities, settings, people and times of the day,” so that a BIP (if required) may be developed “that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement” [8 N.Y.C.R.R. Section 200.22(a)(3)].

State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required, “[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all” R.E. v. New York City Department of Education, 694 F.3d 167, 190 (2d Cir. 2012). The Court also noted that “[t]he failure to conduct an FBA will not always rise to the level of a denial of FAPE, but that in such instances particular care must be taken to determine whether the IEP addresses the student’s problem behaviors” (id.).

The special factor procedures set forth in State regulations further require that the CSE “shall consider the development of a [BIP] for a student with a disability when: (i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student’s behavior places the student or others at risk of harm or injury; (iii) the CSE is considering more restrictive programs or placements as a result of the student’s behavior; and/or (iv) as required pursuant to” 8 N.Y.C.R.R. Section 201.3 (concerning disciplinary actions).

The evidence shows that the District conducted XXXX for the Student when he attended the XXXX program during the XXXX school year (Ex. P-CCCC). Although XXXX testified that the District’s XXXX was “completely useless and ineffective” to XXXX during the XXXX school year (Ex. P-BBBB at p. 8), I make no findings with respect to the appropriateness of the XXXX that was in place during the XXXX school year, in that such a claim is time-barred.

XXXX testified that she did not believe that the Student required an XXXX (Tr. pp. 1482-1483). XXXX reviewed the XXXX maintained by XXXX during the XXXX school year and stated that the amount of XXXX (Tr. pp. 1359, 1482-1484; Ex. D-31).

XXXX testified that in her XXXX classroom, the Student needed XXXX (Tr. pp. 1260-1262).

XXXX described the Student as requiring XXXX (Tr. pp. 909-910, 1123-1148, 1205-1207, 4112-4115, 4125; Exs. D-27 at p. 10, P-P).

XXXX testified that she does not XXXX for every special education student. She stated that if she sees XXXX (Tr. pp. 1732-1734; Ex. D-31).

The Parents argue in their Closing Brief that XXXX’s XXXX is inaccurate because it did not contain information with respect to the Student’s XXXX during the provision of related services [See Ex. D-32 at pp. 16-17]. However, many of the Student’s related services were provided on a pull-out basis when XXXX was not present. In addition, XXXX testified that she was not physically present during all of the push-in services and that when she was present, she tried to focus on “keeping to herself” (e.g., engaging in paperwork, emails, or visiting other students in other mainstream classrooms) when she was not conducting the lesson so that she would not “step on the other teacher’s toes” (Tr. pp. 1627-1628).

The evidence shows that the Student’s XXXX and the evidence supports the CSE’s findings in that regard (Exs. D-27 at pp. 9-13, D-31).

4. Failure to offer adequate alternative XXXX services for the XXXX school year, i.e., XXXX, 1:1 support, XXXX, XXXX, or XXXX; and 5. Failure to use an appropriate, scientifically-based methodology and/or strategy based on peer-reviewed research pursuant to Section 200.4 of the Regulations to address [the Student’s] XXXX for the XXXX school year.

The Parents assert that during the XXXX school year, the Student had XXXX (Ex. IHO-3 at p. 5).

The Parent testified that the Student had XXXX (Tr. pp. 3407-3408).

XXXX testified that the Student XXXX (Tr. pp. 4197-4199; Ex. D-41 at p. 19).

XXXX made a XXXX recommendation that the Student receive XXXX. She also stated that XXXX could also address XXXX (Ex. D-24 at p. 45).

The evidence shows that during the XXXX school year, the Student received XXXX (Ex. D-18).

The evidence shows that XXXX worked with the Student as part of XXXX on a number of areas, including XXXX (Tr. pp. 1318-1325, 1329-1330; Exs. D-3, D-17).

The evidence also shows that XXXX worked on XXXX as part of the Student’s XXXX (Tr. p. 445). In the area of XXXX (Tr. pp. 600-601, 3749-3750; Exs. D-18 at pp. 3-7, D-27 at pp. 14-16).

A review of the Student’s Progress Report on Goals shows that the Student achieved all of his XXXX goals (i.e., Goals 13 through 19) for the XXXX school year, including Goal 18, which states that the Student will XXXX. He also achieved 3 out of 4 of his XXXX (i.e., Goals 10, 11, and 12); that he was progressing satisfactorily on Goal 9 as of March 2012; and it was expected that he would achieve Goal 9 by the end of the XXXX school year (Ex. D-32 at pp. 4-6). XXXX stated that the Student experienced “huge growth in depth and quality” of XXXX during the XXXX school year (Ex. D-27 at pp. 1, 3).

The evidence shows that the Student was given XXXX (Tr. p. 134; Ex. D-13 at p. 2).

The evidence shows that the Student made significant progress in XXXX, and I find that the Student would have received appropriate XXXX through his continued attendance in the XXXX class, together with his participation in XXXX and XXXX, during the XXXX school year.

State regulations require that an IEP indicate the extent to which parent training will be provided to parents, when appropriate [8 N.Y.C.R.R. Section 200.4(d)(2)(v)(b)(5)]. 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 N.Y.C.R.R. Section 200.1(kk); see 34 C.F.R. Section 300.34(c)(8)]. However, the presence or absence of parent counseling and training on an IEP does not necessarily have a direct effect on the substantive adequacy of the plan [R.E. v. New York City Department of Education, 694 F.3d 167, 191 (2d Cir. 2012)].

The Parent testified that, although they asked the District for XXXX, the District did not XXXX. The evidence shows that the CSE considered whether the related service of XXXX was required to enable the Student to benefit from instruction, and concluded that it was not (Tr. pp. 3351-3352).

XXXX testified that the Parents requested XXXX because there were issues around XXXX (Tr. pp. 4360-4362; Ex. D-24 at p. 46).

XXXX testified that although XXXX would have been advantageous, she did not believe that it was needed in order for the Student to be successful in school (Tr. pp. 1703-1704). The Parent testified that in XXXX, they obtained XXXX privately in an attempt to XXXX, through the services of XXXX, an expert in XXXX (Tr. pp. 3325-3327), and in the XXXX, they hired XXXX, who worked with them on XXXX (Tr. p. 3335).

In sum, I find that the District offered appropriate XXXX services for the Student that were reasonably calculated to confer meaningful educational benefit during the XXXX school year; that the Student would have received appropriate XXXX when needed, through his placement in the XXXX; and that XXXX were not required for the Student to receive a FAPE.

6. Failure to appropriately address bullying.

The Parents assert that they wrote to the school on more than one occasion in or about XXXX regarding incidents where the Student was being bullied and stated there was no school intervention. The Parents also assert that they drove the Student to and from school for much of the XXXX school year specifically to avoid bullying that occurred on the school bus (Ex. IHO-3 at p. 6).

The evidence shows that the Parents filed their Due Process Complaint Notice on June 17, 2014, more than 2 years after the time that they knew or should have known of the alleged action which formed the basis of their complaint with respect to bullying. I find that their bullying claim is time-barred.

Even if the Parents’ bullying claim was timely filed, the evidence shows that the District investigated each of the Parents’ and Student’s concerns with respect to bullying and determined that the Student was not bullied.

XXXX testified that whenever the Parents alleged that the Student was being bullied in school, the building principal investigated. She also stated that District staff did not see a pattern of bullying, although the Student did have occasional altercations with other students, including a classmate in the XXXX. She stated that the District takes bullying seriously, but that from the District’s perspective, the Student was not bullied at school, even though the Parents believed and felt that he was (Tr. pp. 187- 188, 392-397).

When the Parents told XXXX at a CSE meeting held on XXXX that the Student was being bullied on the bus, she and the District Clerk, who at the time oversaw transportation, interviewed the bus monitor, who stated that she did not see the Student bullied on the bus, and described him as the aggressor on the bus. XXXX relayed the information to the Parents at the time of the interview and again at the CSE meeting held on XXXX (Tr. pp. 188-189, 384-386, 389, 397-400; Exs. D-13 at p. 2, D-27 at p. 2).

XXXX testified that she did not witness the Student being bullied by any students during the XXXX school year. She stated that although he had difficulty with grade level peers, it was typical of all students that age, since they do not have complete mastery of their XXXX. The Parents made XXXX aware of their concerns through the home-school log, indicating that he had been slighted, not included, or teased, but she didn’t perceive it as an ongoing problem. She stated that she always investigated the Parents’ concerns and if there was a legitimate concern, she addressed it with the other student. XXXX was able to pinpoint when the Parents believed it was occurring, which was during recess. The recess aide was alerted and she reported to XXXX after recess and lunch if anything negative occurred. XXXX also directly asked the Student daily upon his return to the classroom whether there were any problems in recess and whether there was any bullying. She stated that he typically responded “no”. XXXX also observed the students at recess once a week and spoke with the aide about strategies that she was using, what she wanted her to continue, and strategies that she wanted her to start using (Tr. pp. 866-870).

XXXX stated that when the Student was with her, she did not perceive anything that he was encountering in his XXXX grade year to be what she considered bullying. She stated, however, XXXX graders might tease one another or treat each other “in not the best way,” and if a student was being inappropriate with another student, using inappropriate words or not sharing or being physically aggressive and she witnessed it, depending on the severity of the situation she would immediately intervene, brainstorm a solution together, what one can say or what one should do, and she would either address it directly with the other student or with that student’s teacher. She stated that she recalled intervening on the Student’s behalf to help him deal with the typical XXXX grade social relations, but she did not remember a specific incident (Tr. pp. 1645-1648).

XXXX testified that some time in or about XXXX, the Parents came to his office and stated that the Student was being picked on and bullied, and a group of 5 or 6 children taunted him and told him to kiss a girl at recess. He stated that he spoke with the aide and she reported nothing. He also looked at a videotape of the Student at recess that day and he saw fairly typical running and chasing behavior which XXXX graders do a lot (Tr. pp. 1499-1501, 1585).

XXXX testified that he understood why the Parents might believe that the Student was being bullied, but he believed that the kind of behavior they described as bullying was actually kids being unkind, which he stated was different. When he received reports from parents, he stated if the complaint was about a single child, he would investigate and speak to the child. If it was a bunch of kids, such as 5 or 6 children suggesting to the Student that he kiss a girl, he would also speak to the children and tell them that their behavior was inappropriate (Tr. p. 1584).

XXXX testified that parents were provided with monthly XXXX updates, which set forth the topics which were being discussed in the XXXX (Ex. D-18 at pp. 3-6). The record reflects that bullying was one of a number of topics that was discussed as part of XXXX in XXXX, and that XXXX had a Bully Proof program, which was a zero tolerance of bullying (Ex. D-18 at p. 6). XXXX testified that students mischaracterize certain interactions with their peers as bullying, and there was discussion as to what types of behavior constitutes bullying. She stated that she never observed the Student being bullied, teased, treated meanly by other students, or being left out by his peers. The Parent testified that bullying was addressed in XXXX (Tr. pp. 1333-1334, 1415-1417, 3874-3875; Exs. D-17 at p. 9, D-18 at p. 6, D-21 at pp. 2-4).

The evidence shows that in response to the Parents’ concerns about the Student’s safety in school, XXXX asked XXXX and XXXX to perform observations of the Student in school to see whether he was safe, engaged in learning, and engaging in appropriate behavior, and she created a chart for that purpose (Tr. pp. 142-151, 157- 158, 390-391; Ex. D-21). XXXX stated at the CSE meeting held on XXXX that he observed the Student approximately 20 times over a period of a few weeks and found him to be safe, engaged, and on task during all but one visit. XXXX stated that she saw him well over 20 times, and he was engaged and on task. She also stated she did not observe him to be unhappy or unsafe (Exs. D-13 at p. 2, D-21, D-27 at p. 2).

XXXX’s Daily Progress Notes indicate that at the Student’s session with her on XXXX, she reviewed a book on bullying and the Student came up with some “nice strategies” for dealing with bullying, including moving one’s chair away and asking an adult for help. She also noted that the Student exhibited good participation during the session. The evidence shows that the Student utilized those strategies. When he complained to aides at recess when he was having difficulties with others, and the aides did not handle the situation to his satisfaction, he stopped playing with those students and would go on the swings or play with a friend (Tr. pp. 381, 1753-1757; Ex. D-19 at p. 6).

I find that the District acted appropriately in responding to the Parents’ and Student’s complaints about bullying, and that there was no procedural violation of FAPE as a result. See T.K. and S.K. v. New York City Department of Education, 810 F.3d 869 (2d Cir. 2016). 8

7. Failure to offer XXXX with a qualified provider for the XXXX school year.

The Parents allege that, despite the Student’s XXXX, as set forth in the IEP for the XXXX school year, at no time did the CSE recommend a XXXX for the Student (Ex. IHO-3 at p. 6). The evidence shows that the Student received XXXX as part of his program in the XXXX. XXXX testified that she followed a XXXX curriculum to build XXXX (Tr. pp. 690-697, 709; Ex. D-27 at pp. 1, 3, 9-11, 16).

XXXX provided the Student with XXXX (Tr. pp. 1318-1325, 1329-1330; Exs. D-3, D-17).

XXXX confirmed that during the XXXX school year, the Student received XXXX (Tr. pp. 498, 576-578, 601).

The evidence shows that XXXX is a New York State certified teacher in Childhood Education and Students with Disabilities, grades XXXX, with an annotation in severe and multiple disabilities. She participates in professional development courses mandated by the District and she has taken outside training in XXXX. Prior to her

The Second Circuit did not reach the question whether the bullying at issue in T.K. was so severe that the failure to address it in the Student’s IEP resulted in a substantive denial of a FAPE. The Court also expressed no opinion as to whether the District Court’s four-part test for determining when bullying results in the substantive denial of FAPE correctly states the law. The Court held that the Department’s persistent refusal to discuss the student’s bullying at important junctures in the development of her IEP “significantly impede[d]” Plaintiffs’ right to participate in the development of the student’s IEP, a finding that I do not make in this case. See T.K., 810 F.3d at 873, 876-877, n.3). employment with the District, she was employed by XXXX. All of her teaching assignments involved students with XXXX. She is considered highly qualified under the No Child Left Behind Act. In addition to her employment in the District, she provides XXXX (Tr. pp. 697-703, 1082-1085, 4048-4049, 4051).

XXXX possesses New York State permanent certification as a School Psychologist and permanent certification as a teacher in grades N through 6. She was employed by the District for 20 years as a school psychologist, prior to her retirement in XXXX. She also worked in other public schools in New York State. She participated in professional development courses mandated by the District in areas including XXXX (Tr. pp. 1312-1314, 1317).

XXXX possesses a Certificate of Clinical Competence in Speech and Language Pathology. She has been employed by the District for 10 years. Prior to that time, she was employed by XXXX to provide XXXX to students of the XXXX Central School District. XXXX attends continuing education courses in areas including XXXX, as part of maintaining her certification by the American Speech and Hearing Association (“ASHA”) (Tr. pp. 428-430).

The evidence shows that the Student was able to demonstrate XXXX. A review of the IEP for the XXXX school year confirms that he would have continued to receive the same level of XXXX had he attended school in the District for the XXXX grade (Tr. pp. 587-591, 600-601; Exs. D-18 at pp. 3-7, D-27).

I find that the Student benefitted from the XXXX that he received during the XXXX school year by qualified providers, and the XXXX that he would have continued to receive in the XXXX school year was reasonably calculated to confer meaningful education benefit.

8. Failure to provide appropriate XXXX services.

The Parents allege that at the CSE meeting held in preparation for the Student’s program for the XXXX school year, they raised their concerns about the Student’s XXXX (Ex. IHO-3 at pp. 6-7). The evidence shows that during the XXXX school year, XXXX provided XXXX. They worked on XXXX (Tr. pp. 1318-1325, 1329-1330; Exs. D- 3, D-17).

XXXX stated that the Student was doing very well in XXXX. Occasionally, he XXXX (Tr. pp. 1338-1339).

A review of the Student’s Progress Report on Goals for the XXXX school year shows that he worked on XXXX goals, and that he achieved all of his goals by the end of the XXXX school year. Those goals included XXXX (Ex. D-32 at pp. 4-6).

The IEP for the XXXX school year contained XXXX goals in the areas of XXXX. XXXX recommended these goals in conjunction with XXXX (Tr. pp. 941-942). Goal XXXX (Tr. p. 948; Ex. D-27 at p. 16).

The IEP for the XXXX school year also contained a notation regarding the Parents’ concerns with respect to XXXX; that XXXX was implemented during the XXXX school year; and that XXXX seemed to have ameliorated the issue (Ex. D-27 at p. 3).

I find that the Student benefitted from the XXXX services that he received during the XXXX school year, and the XXXX that he would have continued to receive in the XXXX school year was reasonably calculated to confer meaningful education benefit.

9. Failure to provide adequate XXXX services.

The Parents allege that the IEP goals and services provided for the Student in the area of XXXX for the XXXX school year are inadequate to address the Student’s unique needs (Ex. IHO-3 at p. 7). The evidence shows that XXXX provided XXXX to the Student at the beginning of the XXXX school year. He received services on both a push-in basis with his class and in a small group on a pull-out basis. XXXX kept daily progress notes of her sessions with the Student (Tr. pp. 440-444; Ex. D-19).

The Student worked on XXXX (Tr. pp. 445-461, 465-490, 494-495, 558-559; Ex. D-19).

During the push-in sessions, the Student demonstrated XXXX (Tr. pp. 498, 576- 578).

A review of the Student’s Progress Report on Goals for the XXXX school year shows that he achieved three of four XXXX goals, including XXXX (Ex. D-32 at pp. 3-4).

With respect to standardized testing, XXXX evaluated the Student in mid to late XXXX at the request of the District’s then current Director, XXXX, to obtain a baseline. XXXX was concerned that the scores were not quite valid for a bilingual student, and that the scores should be interpreted with caution, as XXXX (Tr. pp. 433-434).

The Student was administered the XXXX (Tr. pp. 433-434; Ex. D-4 at p. 3).

XXXX compared the XXXX testing conducted by XXXX in XXXX and XXXX in XXXX using the XXXX and stated XXXX (Tr. pp. 1979-1982; Exs. D-24 at p. 52, P-UUU at p. 5).

In the subtest of XXXX (Tr. pp. 1983-1988; Exs. D-24 at p. 52, P-UUU at p. 5).

XXXX stated that XXXX’s report demonstrated that the Student was XXXX (Tr. pp. 1998-2001, 2100; Ex. D-27 at p. 3).

XXXX reviewed the results of a XXXX evaluation conducted by XXXX on XXXX, which was obtained privately by the Parents. She testified that the results of independent testing in XXXX were expected, given her observation of the Student’s performance in school on his XXXX goals during that same period. The Student had some relative strengths, relative areas of average abilities, and some weak areas. XXXX recommended XXXX to continue at the frequency listed on the Student’s IEP for the XXXX school year. XXXX testified that results of her testing in XXXX could not be compared with test results contained in the XXXX evaluation, although XXXX stated her belief that the Student made “nice progress” given that when he entered XXXX. The XXXX evaluator concluded that based on the XXXX, the Student’s XXXX were in the average range. However, the evaluator also stated that XXXX (Tr. pp. 518-531, 3756-- 3757; Ex. D-20 at pp. 8-9).

XXXX also reviewed the results of XXXX’s testing to assess the Student’s XXXX. The XXXX (Tr. pp. 537-540; Ex. D-24 at p. 52).

XXXX compared the XXXX (Ex. P-TTT at p. 2) with XXXX’s XXXX report (Ex. D- 24 at p. 52) in the areas of XXXX (Tr. pp. 1989-1994).

The IEP for the XXXX school year contains XXXX goals in the area of XXXX (Tr. pp. 545-546; Ex. D-27 at p. 15).

XXXX testified that the XXXX goals contained in the IEP for the XXXX school year were appropriate for the Student, but that they were deficient in that they did not include goals to address XXXX. She also stated that the XXXX goals were clearly addressing XXXX and were appropriate. The evidence indicates that the Student received XXXX (Tr. pp. 1974-1975; Ex. D-24 pp. 17-55).

XXXX reviewed the levels of XXXX recommended for the Student for the XXXX school year and stated her opinion that it does not meet the Student’s need for XXXX, which she believed he required (Tr. pp. 1962-1964). She stated that XXXX is appropriate for the Student in terms of his XXXX goals, identified by her as goals 12 and 14 on the IEP. However, given the Student’s profile, she did not believe that XXXX would provide him with appropriate intervention to work on his XXXX. XXXX stated that she was not aware of the goals of the other students in this Student’s small group XXXX during the XXXX school year or the goals of the other students with whom this Student would have been placed for XXXX in the XXXX school year. She also stated that she did not know how students were grouped for XXXX by the District, she did not know what programs XXXX was using for the Student, and that there is nothing inappropriate in using different parts of different programs to instruct a student (Tr. pp. 1969-1974, 2102-2104, 2107-2108; Ex. D-27 at pp. 14-15).

XXXX testified that an appropriate level of XXXX for the Student for the XXXX school year would have been XXXX. She then stated that the instruction could have focused on XXXX some days and some days for XXXX. She stated her belief that XXXX was not appropriate, although she acknowledged that XXXX was appropriate for XXXX. She also stated that she did not believe the Student’s XXXX goals could be implemented in XXXX. XXXX acknowledged that none of the reports of the XXXX she reviewed recommended XXXX. She disagreed with XXXX’s recommendation for XXXX. She acknowledged that clinicians can have different opinions as to what constitutes an appropriate level of services for a child. She also expressed her belief that the Parents were looking for an optimal amount of XXXX services for the Student (Tr. pp. 2065-2071, 2079, 2112-2115; Ex. P-MMM).

The evidence shows that the Student progressed in the area of XXXX during the XXXX school year with the levels of service provided by the District. The CSE’s recommended levels of XXXX for the XXXX school year are the same as that which he received during the XXXX school year, and I find that the XXXX recommended for the XXXX school year were reasonably calculated to confer meaningful educational benefit.

10. Failure to provide appropriate XXXX.

The Parents allege that at the XXXX CSE meeting, XXXX raised her concerns about the Student’s weakness in XXXX (Ex. IHO-3 at p. 7).

The evidence shows that during the XXXX school year, the Student worked with XXXX on XXXX using XXXX. He also used XXXX. The Student was able to keep pace with the rest of the XXXX grade classes. XXXX was taught in a 2:1 or 1:1 ratio. Students were grouped according to ability level. During the XXXX school year, the Student progressed in XXXX. The Parent testified to his belief that extensive use of the software at home was instrumental in the progress the Student made in XXXX grade (Tr. pp. 716-720, 743-745, 759-763, 3655-3657; Ex. D-28 at p. 1).

A review of the Student’s Progress Report on Goals for the XXXX school year shows that he achieved two out of three XXXX goals, and with respect to Goal 2, he made progress but had not met the criteria set in the goal. He was scheduled to continue to work on that goal, and others, during the XXXX school year (Ex. D-32 at pp. 1-2, D-27 at pp. 7, 9, 14).

A review of standardized testing shows that the Student scored in the average range in XXXX (Ex. D-24 at pp. 3-4). A review of the Student’s report card for the XXXX school year shows that he approached grade level standards in the areas of XXXX. He was meeting grade level expectations in the areas of XXXX (Ex. D-24 at p. 5). His progress in XXXX is described with specificity in the narrative portions of the report card written by XXXX (Ex. D-24 at pp. 6-7).

The IEP for the XXXX school year includes XXXX goals. Goals numbered XXXX (Tr. p. 940; Ex. D-27 at p. 14). XXXX agreed that the XXXX goals were appropriate (Tr. p. 2006).

The evidence shows that the Student progressed in the area of XXXX as part of XXXX’s XXXX class during the XXXX school year, and the CSE’s recommendations for the Student’s continuation in that program for the XXXX school year was reasonably calculated to confer meaningful educational benefit.

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

ORDER

Based upon the above, it is hereby

ORDERED, that the Parents’ application for annulment of the District’s IEP for the XXXX school year is hereby denied; and it is further

ORDERED, that the Parents’ application for tuition reimbursement for the Student’s full tuition and related expenses at XXXX for the XXXX school year is hereby denied; and it is further

ORDERED, that the Parents’ application for payment for transportation related expenses regarding travel to and from XXXX every day until such time as the District first made transportation available to the Student between his home and XXXX is hereby denied; and it is further

ORDERED, that the Parents’ application for payment of attorney’s fees and expenses associated with representation in this matter is hereby denied; and it is further

ORDERED, that the Parents’ application for any further relief, including compensatory education, which the Hearing Officer deems just and proper is hereby denied.

NOTICE OF RIGHT TO APPEAL

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

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

An appealing parties’ Petition for Review shall be personally served upon the opposing party within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon Petitioner, the date of mailing and the 4 days subsequent thereto shall be excluded in computing the 25- or 35-day period [8 NYCRR Section 279.2(b)].

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

DATED: May 4, 2016

New City, New York

____________________________________

WENDY K. BRANDENBURG, ESQ.

Impartial Hearing Officer

Footnotes

[1] There were 16 additional scheduled dates of hearing that were canceled by the parties for various reasons, including but not limited to XXXX. 3

[2] XXXX, the District’s Director of Special Education and Support Services, testified that she had a lengthy conversation with the Parent regarding the accuracy of the Student’s age as listed on his birth certificate. She stated that she was told that children who were XXXX were often made to seem at least on records older than they were, so they would show a level of intellectual delays that made them adoptable out of the country (Tr. pp. 105, 4345-4347). A Developmental Pediatric report by XXXX, included a discussion of the utility of a bone age study to determine the Student’s age (Ex. P-WWW at p. 3). The Parents also questioned his age, as he was XXXX (Tr. p. 3613). 6

[3] One such incident resulted in the suspension of the Student in October 2011, discussed infra. 11

Impartial Hearing Decision