E.S. v. KATONAH-LEWISBORO SCHOOL DISTRICT

sidential placement that the CSE recommended subsequent to the hospitalization because it provided relevant information to the Court about the status of the student. However, the Court has always maintained that this information cannot be admitted as evidence that the IEPs in question were inappropriate. Even if Plaintiff can show that B.S.'s psychological fragility was brought to the attention of the CSE or was an issue before the IHO or SRO, there is no way for the Court to say that a major psychotic episode that occurred in August 2009 is probative of IEPs for the 2006-2007 and 2007-2008 school years. Therefore, the Court takes this information into account but finds that it does not affect its analysis of either the 2006-2006 or 2007-2008 IEPs because the Court cannot draw a connection between the event and these IEPs and the Court cannot speculate as to what might have happened if B.S. had returned to KLSD for these school years.

III. Discussion

In their Complaint, the plaintiffs assert that the SRO Decision should be reversed for the following reasons:

1. The SRO and IHO erred and acted contrary to 8 NYCRR 200.6(h)(2) in concluding that B.S. was appropriately grouped with students whose needs were similar to his for the two relevant school years. Complaint ¶¶ 29-53 and 92.

2. The SRO and IHO erred in finding that B.S. had made meaningful progress during his 2004-05 and 2005-06 school years while enrolled in the defendant District's school. Complaint ¶¶ 28, 63 and 65.

3. The SRO and IHO erred in finding that the program proposed by the defendant District for B.S. was appropriate because (a) B.S. needed a program which would provide more extensive social skills training and adaptive behavior training, (b) the defendant District's program did not provide adequate vocational training such as would be offered in a BOCES program which the plaintiffs requested that the District consider, (c) the defendant District's program was too basic and not sufficiently academically challenging and (d) the defendant District's program for 2007-2008 did not contain an individual reading program. Complaint ¶¶ 54-61, 66-67, 78 and 92.

4. The IHO was biased, and the SRO was biased. Complaint ¶¶ 79-80, 106-109.

5. The Complaint also asserts that for the two school years at issue, the defendant District should have considered a BOCES program or a program offered by other school districts for B.S. Complaint ¶¶ 20, 56 and 82.

a. Summary Judgment under IDEA

In an IDEA case, summary judgment "triggers more than in inquiry into possible disputed issues of fact. Rather, the motion services as a pragmatic procedural mechanism for reviewing" an administrative determination. Lillbask ex re. Mauclaire v. Conn. Dept. of Educ., 397 F.3d 77, 83 n. 3 (2d Cir. 2005) (citation omitted). While the district court must base its decision on the preponderance of evidence, it "must give due weight" to the administrative proceedings, "mindful that the judiciary generally lack[s] the specialized knowledge and experience necessary to resolve difficult questions of educational policy." Gagliardo, 489 F.3d at 113. Accordingly, "district courts may not `substitute their own notions of sound educational policy for those of the school authorities which they review.'" A.C. M.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009) (quoting Rowley, 458, U.S. at 206).

b. IHO and SRO Bias

Because Plaintiffs argue that the Court should afford less deference to the IHO and SRO due to their biases, the Court addresses this issue first. After reading the entire hearing transcript, the Court does not agree that the IHO was biased against Plaintiffs. The interactions between the IHO and the parties, while tense at times, were fair and impartial. The IHO advised the parties of his experience representing school districts, but Plaintiffs' counsel ultimately withdrew his motion to recuse the IHO (Tr. 3, 7, 9-10). The IHO asked questions of both parties' witnesses. He also sustained and overruled objections raised by both sides. He used his authority to speed along a lengthy proceeding by limiting irrelevant or duplicative testimony. The IHO granted extensions and accommodated the parties' schedules as best he could. His actions do not show a bias or lack of impartiality, and therefore the Court upholds the SRO's finding on this issue.

Similarly, the Court analyzed the SRO decision in light of the administrative record and found that it was a fair and objective review of the evidence. The SRO paid careful attention to the student's evaluations, the parents' comments, the recommendations of the parents' experts, and how the IEPs were developed. It is a thorough opinion that displays no bias against the parents. The evidence that the parents attempted to introduce, namely documents questioning SRO Kelly's impartiality in other cases, was not considered by the Court because it was not properly part of the record. (Plt. Memo of Law, Ex. G). Furthermore, the Court's only concern is the SRO's conduct in this case, not the allegations of other families in the State. The Court concludes that neither the IHO nor the SRO displayed any form of bias against the parents. Therefore, the Court affords their decisions the appropriate level of deference in its review.

c. The 2006-2007 IEP

1. The class grouping for 2006-2007 IEP was appropriate under 8 N.Y.C.R.R. § 200.6(a)(3); 8 N.Y.C.R.R. § 200.6(h)(2), 8 N.Y.C.R.R. § 200.1(jj)

Plaintiffs object that the class grouping for the 2006-2007 IEP was inappropriate because it grouped B.S. with students with dissimilar disabilities and greater needs than he has. (Plt. 56.1 ¶ 207). Specifically, B.S.'s mother felt it was "unacceptable that B. would be expected to be in . . . a classroom with so little stimulation, so little social capacities and IQs and language together with kids who are far more impaired." (Tr. 999). She compared and contrasted the students in the class profile with B.S.'s profile and concluded that most of the children in the class had lower IQs, lower language scores, required 1:1 teaching assistants, adaptive physical therapy, physical therapy, and one required behavioral consultations. (Tr. 1125-1127). While there was one student who presented as having a higher intellectual function than B.S., the mother felt that the other data, namely the CELF-4, showed that this student had profoundly impaired language abilities. (Tr. 1127-28).

As cited above, the New York regulations implementing IDEA require that children be grouped together in a special education class only if they have "the same disabilities" or if they have "differing disabilities [but] . . . similar individual needs for the purpose of being provided a special education program." 8 N.Y.C.R.R. § 200.1(jj); see also 8 N.Y.C.R.R. § 200.6(g)(3). A CSE must also strive to "assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided." 8 N.Y.C.R.R. § 200.6(a)(3)(ii). Nevertheless, the regulation cautions that the "social needs of a student shall not be the sole determinant" of his or her class placement. See id; Walczak, 142 F.3d at 123.

Defendants argue that B.S.'s evaluations, performed by both the district and the parents' own experts, indicate that B.S. has extremely low cognitive function and performs far below average academically. They cite to his own WISC-IV full scale IQ, CELF-4 scores, and WIAT-II scores to show that not only is B.S. not the highest functioning student in the class but in fact his scores are consistent with the rest of the class: at or below the 1st percentile in most areas. (SD-11). It is true that some of the students in the class require adaptive physical therapy, 1:1 teaching assistants, and in one case, behavioral consultations. However, the district argues that it is unreasonable to expect that students with multiple disabilities will be identical. Furthermore, B.S.'s classification places him on the autism spectrum — like the other students in the class. Defendants also point to B.S.'s progress in the seventh and eighth grade versions of the same class as evidence that he is appropriately grouped with students with these characteristics.

The main evidence the Plaintiffs highlight, other than the mother's own testimony, is the evaluation performed by Dr. Tannenbaum that suggested B.S.'s scores are very possibly a low estimate of his abilities, however the results indicate that B.S.'s "intellect and ability to achieve academically are extremely low compared with others his age. (SD-2 at 7). Dr. Tannenbaum did not recommend the more sophisticated 15:1+1 class for the 2006-2007 school year, although she did feel that the 8:1+2 program was too basic and recommended the district look at alternative placements. (Tr. 1317).

The Court does not disagree that B.S. likely has a higher potential than his test scores indicate. But, the Court does disagree that the school district treated B.S. as just a set of test scores. The input of Ms. Mellon provided a qualitative assessment of B.S.'s achievements, and the CES gave the parents a full opportunity to present their perspective as well. However, the evaluations are another important piece of the puzzle. While each student in the class profile has unique attributes, the majority of measurable indicators show that the students have similar needs for the purpose of providing special education. They all need remedial reading instruction, intensive speech-language instruction, and training in social skills.

The Court is not being asked whether this was the best possible group of children with whom B.S. could have been placed. To the extent the Court agrees with the parents that this class profile may not have provided a beneficial social interaction to B.S., the social needs of B.S. cannot be the sole factor in determining his placement. In this case, the similarities in academic and cognitive needs amongst the group make it an appropriate placement. The "mere fact that a separately hired expert has recommended different programming does nothing to change [the] . . . deference" to the district and its trained educators. Watson v. Kingston City Sch. Dist., 325 F.Supp.2d 141, 145 (N.D.N.Y. 2004), aff'd 142 Fed. Appx. 9, 10 (2d Cir. 2005). Therefore, the Court concludes that for the 2006-2007 IEP, the IHO and SRO did not err in finding that the class grouping was appropriate and legally sufficient under IDEA and New York regulations.

2. The IHO and SRO properly found that B.S. made progress in 2004-2005 and 2005-2006 school years

Plaintiffs assert that the IHO and SRO improperly relied on the subjective perspective of Ms. Mellon in finding that B.S. made progress in middle school. In doing so, they ignored the WIAT-II test results that the parents allege show regression or no progress. The Court rejects Plaintiffs argument and finds it perplexing that Plaintiffs, who premise their suit on the inadequacy of evaluative tests in reflecting B.S.'s true academic ability, would then prefer to rely on test results over the detailed observations of B.S.'s teacher of two years.

Ms. Mellon's 4/21/05 Teacher Report described B.S. as a child who had made gains in word reading and fluency, spelling, reading comprehension, writing, numerical operations, organizational skills, daily living skills and a number of other areas. (Deft. 56.1 ¶ 34; SD-23). She provided detail with respect to B.S.'s progress reflected in her Teacher Report, further evincing meaningful gains in his reading, writing, spelling and overall comfort and independence in his educational environment. (Deft. 56.1 ¶ 35; Tr. 829-836). At the IHO hearing, she testified that B.S. had a very successful, and, in fact, "great" 2004-2005 school year in her program and the mother testified that she agreed with that conclusion. (Deft. 56.1 ¶ 36; Tr. 828 and 1597).

According to Ms. Mellon's testimony, B.S. had another "great" school year in Ms. Mellon's "life skills" class for the 2005-2006 school year. (Deft. 56.1 ¶ 37; Tr. 828, 836-837 and 857). During the 2005-2006 school year, B.S. was described as having "made steady progress in all academic areas." (Deft. 56.1 ¶ 39; SD-1). For the 2005-2006 school year, B.S. was described by Ms. Mellon as happy, communicative, independent and learning, as making remarkable progress in all academic and social-emotional areas, as becoming increasingly comfortable, independent, maturing and as making meaningful, even remarkable, academic gains in all areas; as actually volunteering to read in front of the class. (Deft. 56.1 ¶ 40; Tr. 839-853).

B.S.'s March 21, 2006 Report Card reflected gains in all academic areas, as well as with respect to his life skills, reported that B.S. received grades of 100% on most spelling tests and commented that B.S. was becoming "more and more independent," was showing responsibility for his daily homework, was becoming a role model for other students, often helped his peers and enjoyed playing with them at recess. (Deft. 56.1 ¶ 41; SD-9; SRO decision at 5). Ms. Mellon's April 17, 2006 Teacher Report for B.S. reflected improvements in B.S.'s decoding skills, reading comprehension, mathematics, word problems, counting money, writing, working independently, socialization and other areas; that he had improved his ability to work independently and independently follow a daily routine and classroom schedule, and that B.S. enjoyed interacting with classmates during the day and at recess. (Deft. 56.1 ¶ 42; SD-10; SRO Decision at 6-7). By the end of the 2005-2006 school year, B.S. had achieved or made satisfactory progress with respect to all IEP goals and objectives. (Deft. 56.1 ¶ 44; SD-31).

During the administrative hearings before the IHO, the plaintiff parents testified that because B.S. felt safe and secure in the defendant District, that this presented a "window of opportunity" for the defendant District to maximize B.S.'s education beyond what it was proposing (i.e., "to really cash in"). (Deft. 56.1 ¶ 45; Tr. 937-939, 945, 2184-2185, 2187-2188; 2190-2192). The parents attempt to distinguish this comment by saying that B.S. may have made social and emotional progress, but they felt the WIAT-II scores showed that he did not progress academically. It is undisputed that the WIAT-II scores from April 7, 2006 do not show an increase from March 30, 2005 test (P-C; SD-69), however the Court does not see a "regression" as B.S. remained in the same percentile or dropped only slightly. (Plt. 56.1 ¶ 179). The Court finds that taking all of the evidence of B.S.'s performance into consideration, the IHO and SRO did not err in finding that he made progress in middle school.

3. The 2006-2007 IEP provided B.S. a FAPE

A "free appropriate public education" must include "special education and related services" tailored to meet the unique needs of a particular child, 20 U.S.C. § 1401(a)(18), and be "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207; Walczak, 142 F.3d at 122. The Court is aware that IDEA does not require school districts to provide services "sufficient to maximize each child's potential commensurate with the opportunity provided other children," Rowley, 458 U.S. at 200-01, however the educational benefit provided must be "meaningful," see, e.g., Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (the IEP must be "likely to produce progress, not regression, and [must] afford[] the student with an opportunity greater than mere trivial advancement."); Deal v. Hamilton Co. Bd. of Educ., 392 F.3d 840, 862 (6th Cir. 2004).

Given what the CSE knew about B.S. at the time it was developing the 2006-2007 IEP, the recommended class was reasonably calculated to enable the child to receive educational benefits. The CSE considered: the Extended School Year eligibility form (4/17/06), Ms. Mellon's Teacher Report (4/17/06), Speech-Language Evaluation (3/31/06), Report Card from 2005-2006 school year (3/21/06), Extended School Year eligibility form (3/8/06), Occupational Therapy Evaluation (2/17/06), Private Psychoeducational Evaluation (Dr. Tannenbaum's Report — 1/19/06), Social History Update (1/2/06), Assistive Technology Evaluation (6/15/05), Occupational Therapy Progress Summary (3/01/05), Reading Diagnostic (12/22/04), and a classroom observation (10/2/02), and physical examination (5/22/02). (SD-17 at 7).

The Comments, derived mostly from Ms. Mellon's observations, depict a student who is doing well on the course that he is on and is benefiting from the program chosen by the school district. Dr. Tannenbaum was able to participate by telephone and described a student who would benefit from practical math and small group or individual multisensory reading instruction. She believed a program with challenging academic study and a vocational component would be appropriate for B.S. Everyone at the meeting agreed that the 15:1+1 class that parallels the high school curriculum would be too academically advanced for B.S. (SD-17 at 6-7).

At this point, the parents and the school district disagreed: the parents wanted the school district to look for alternative placements, such as the BOCES program, while the CES believed the 8:1+2 special class was appropriate. While few details about Ms. Frasca's methods were reported in the IEP, it was accepted to be the high school continuation of Ms. Mellon's class. At the hearing Ms. Frasca described a class that is highly individualized and could be adapted to fit the needs of the specific student in a number of subjects (Tr. 2436-2441). She described how she worked with the students individually at their own level in math, language arts, and reading. (Tr. 2437-38). Other subjects were conducted as a group and tracked the curriculum of the general education classes, such as global history. (Tr. 2440).

On cross-examination, Ms. Frasca testified that when she met with the plaintiff mother before the June 2006 CSE, she explained that the class was becoming more focused on academic achievement and could help children like B.S. attain IEP diplomas or transition into modified programs in hopes that they could pass their RCTs. (Tr. 2499; P-GG). Her comments reinforce the district's view that the recommended class would provide B.S. with an individualized program designed to help him progress in a meaningful way.

The Court also finds that Ms. Frasca's class was reasonably calculated to implement the recommendations of Dr. Tannenbaum. For example, Dr. Tannenbaum recommended an hour a day of one-on-one, multisensory reading instruction such as the Wilson Program. The 2006-2007 IEP prescribes 40 minutes a day of one-on-on reading instruction, to be provided by Ms. Frasca who was B.S.'s Wilson program tutor the year before. (SD-17 at 1; SD-2 at 8). Other study strategies included making less distracting worksheet for him, obtaining high interest/low level trade books for B.S., introducing text books and books on tape, and continuing to use math manipulatives to understand math concepts of multiplication, division, money, and time. (SD-8). These strategies would be easy to implement in a small class setting with the flexibility to individualize the curriculum to meet the student's needs, such as in Ms. Frasca's class.

The Court can understand the parents' frustration that the CSE recommended a program that they did not accept, however the district is required to provide an "education that is `appropriate,' not one that provides everything that might be thought desirable by `loving parents.'" Walczak, 142 F.3d at 132. In this case, the Plaintiffs have not shown by a preponderance of evidence that the 2006-2007 IEP was inappropriate given all the qualitative and quantitative information known about B.S. at the time.

d. The 2007-2008 IEP

1. The class grouping for 2007-2008 IEP was inappropriate under 8 N.Y.C.R.R. § 200.6(a)(3); 8 N.Y.C.R.R. § 200.6(h)(2), 8 N.Y.C.R.R. § 200.1(jj)

The district argues that nothing changed during the 2006-2007 school year to render the class grouping for the 2007-2008 special class inappropriate. B.S.'s evaluations — Dr. Dorta's WISC-IV and WJ-III evaluation on May 23, 2007 and administration of the WIAT-II on August 22, 2007 (SD-45; SD-51) — yielded low scores and reinforced B.S.'s classification as mildly mentally retarded in addition to his PDDNOS classification. Dr. Dorta concluded that the results of his evaluation "appear to be valid estimates of his learning and neurocognitive functioning." (SD-45 at 6). Dr. Dorta found that the "evaluation reveals a complicated profile of neurocognitive impairments" and that "[B.S.]'s overall linguistic ability is in the below average range and his visuo-perceptual reasoning skills are in the borderline range []. His overall intellectual skills are in the impaired range." (SD-45 at 6-7).

The WIAT-II test, administered by the district on August 22, 2007, showed little change from his results in 2006. (SD-51 at 3). The results demonstrated, once again, that B.S.'s academic achievement levels are extremely low in word reading, reading comprehension, and math reasoning ( id.). The evaluators recommended that B.S. continue to receive intensive, direct instruction to improve his word reading, reading comprehension, math reasoning, numerical operations, spelling, and written expression. They also recommended skill development to enable B.S. to perform successfully in life skills and pre-vocational training skills. (SD-51 at 4).

However, while the district fully considered B.S.'s experiences in Ms. Mellon's class when proposing the 2006-2007 IEP, it did not adequately consider what progress B.S. made at Maplebrook during the 2006-2007 school year. First, the Court considers the classroom settings. B.S. received English, math, and American History instruction in an 8:1 setting, reading instruction in a 6:1 setting, a daily 40-minute individual reading tutorial. (SD-44 at 6, P-Y at 7). His progress reports, as discussed more thoroughly below, indicate that B.S. was able to progress in these settings.

While the Court does not have specific information on the class profiles at Maplebrook, the literature provided by the parents inform the Court that Maplebrook generally admits students with IQ scores of 70 and above and does not admit students with primary emotional or behavioral diagnoses. (P-V at 1). The Court credits testimony by Dr. Rosen and B.S.'s mother that B.S. is excelling at sports at Maplebrook, is performing well in the RISE system, and is able to interact with students who are his peers at Maplebrook. (Plt. 56.1 ¶¶ 153, 155, 156; Tr. 1511-1513, 1950-55). B.S.'s father also noted that B.S. benefited tremendously from being with his peers. (E.S. Aff. ¶¶ 10-13).

Maplebrook also conducted testing that demonstrated B.S.'s social and emotional progress. In December 2006, the school administered the Adaptive Behavior Assessment System-Second Edition (ABAS-II), a nationally normed research based instrument that measures skills which are important in everyday life. (Plt. 56.1 ¶¶ 144-45; P-J; Tr. 1878-79). The test was administered again in January 2008 (P-K). Dr. Rosen testified at the hearing that there was a dramatic difference in communication abilities and other social skills. (Tr. 1942-43). Another expert who has evaluated B.S. stated at the hearing that skills measured by the ABAS-II test correlate to "adaptive skills and socialization skills, which [Dr. Dorta] define[s] as most critical because they are the most predictive for long term outcome in children with [B.S.'s] condition." (Tr. 1264). Dr. Dorta agreed that B.S. has made "significant" progress in these skills while at Maplebrook. (Tr. 1262-63).

On the other hand, the class profile for the class the CES recommended changed from 2006-2007 to 2007-2008. Instead of five other students, there were only three — and they still required management services such as adaptive physical education, behavioral consultation, and 1:1 teaching assistants. (SD-49). While the differences between the students in Ms. Frasca's class and B.S. were not as apparent to the CSE the year before, the differences were far more obvious as the CSE developed the 2007-2008 IEP. The district failed to take into account how B.S.'s development while at Maplebrook changed his own profile, even while test scores remained low. The Court concludes that the class grouping for the 2007-2008 IEP violated New York regulations implementing IDEA by placing children in a class with significantly different needs.

2. The IHO and SRO did not credit any of the progress B.S. made in the 2006-2007 school year in forming the IEP for 2007-2008

Even though the district carefully considered the observations of Ms. Mellon, it failed to credit the progress B.S. made while at Maplebrook during the 2006-2007 school year. The Court believes this qualitative data should have been a critical part of developing B.S.'s IEP. Across the board, B.S.'s teachers noted his progress in core academic areas. For example, his November 2006 Progress Reports indicate that B.S. made progress:

Another form of testing, the Terra Nova test, is used at Maplebrook. (Plt. 56.1 ¶ 149). However, there was a dispute during the IHO hearing over the accuracy of conducting off-grade testing. (Tr. 2348-2355). The Court did not find it necessary to address this issue in order to decide the case.

— In reading, Mr. Larocca reported: "[B.S.] works hard and stays focused in class. His homework is completed inconsistently, but there has been considerable improvement with that lately. [B.S.] has gaps in decoding skill and we are working on that. He struggles in many areas of reading comprehension but does extremely well learning new vocabulary." In all areas, B.S. received a "MP" (made progress) and in one goal he received a "MS" (mastered as stated). (SD-48).

— In writing, Mr. O'Connor reported: "[B.S.] has shown great interest in some of the topics discussed and written about this semester. The study of current events resulted in some excellent writing assignments from [B.S.]. [He] still needs to spend more time in the careful revision of his work. . . . Overall, I am pleased with the improved effort [B.S.] has shown." B.S. made progress on objectives such as "constructing clear and accurate sentences" and learning to "accurately describe a problem." (SD-48).

— In math transactions, Mr. Hudson reported: "[B.S.] continues to expand his skills in the following areas: pay wages and taxes, living expenses and budgeting, consumer purchases, grocery shopping, restaurant service gratuities, percentages, addition, subtraction, multiplication, division, career math, check writing, balancing checking account. . . . [but] Math continues to be challenging for [B.S.]. . . . I continue to be pleased with [his] positive attitude, work ethic, and progress."

— In American history, Ms. Coviello reported: "[B.S.] is learning a wealth of information and continues to make progress in all the above objectives. He is determined to try challenging assignments. . . . [B.S.] volunteers to read from the book and does a great job. He is very capable and I look forward to continuing growth."

His April 2007 Progress Reports show the most progress in reading, where Mr. Larocca reported "[B.S.] has made good strides this year developing his reading comprehension skills. He works hard and has improved his ability to stay focused. [His] greatest improvement may be in doing his homework. It is consistently completed to an excellent level." (P-Y). Other notable progress was notes in the following areas:

— American history: "[B.S.] tries very hard in this course . . . and never gives up no matter how challenging the work may seem. . . . He often surprises me with the amount of information he has retained from each lesson."

— Language therapy: "He has achieved accuracy of 80% on tasks requested of him" such as the ability to initiate conversations with relevant and appropriate questions and improvement in auditory processing of oral language.

— English: "[B.S.] should be proud of the effort he put into his Tiki Barber PowerPoint presentation."

The only area that B.S. struggled in was math transactions, however his teacher believed "[B.S.] can become highly proficient in math" if he completes his homework and practices more. (P-Y).

The district's failure to take into account the progress B.S. made at Maplebrook is evident in the proposed IEP in two ways: (1) the 2007-2008 omits an individualized reading program, even though Dr. Tannenbaum explicitly recommended it the year before and B.S.'s reading improved at Maplebrook with the use of multisensory instruction; (2) the annual goals and short-term objectives are identical to those proposed in the 2006-2007 IEP, which reveals that the district never actually evaluated B.S.'s academic needs after the 2006-2007 school year and integrated that information into a new IEP. The SRO explained in a footnote that the reading program had been omitted because Dr. Dorta's report from 2007 did not recommend a 1:1 program and at Maplebrook the student only received 1:1 instruction four times a week. (SRO Decision at 24, n. 21).

The SRO mistakenly states that at Maplebrook gave B.S. 1:1 reading three times a week, however, the Maplebrook IEP reflects that it was actually four times a week. (SD-44 at 6).

The SRO's explanation is not convincing to the Court as there is no evidence in the record to support his conclusion. The Maplebrook progress reports demonstrate that the Wilson method and 1:1 reading had been effective for B.S. Dr. Dorta's report may not have specifically recommended 1:1 multisensory reading instruction, but neither did he recommend that it be discontinued. The Court concludes that the reading instruction was omitted from the IEP because the CSE did not seriously consider the progress B.S. made using multisensory reading instruction at Maplebrook.

The Court is even more troubled by the repetition of the annual goals and short-term objectives from the 2006-2007 IEP and 2007-2008 IEP. The Maplebrook progress reports go into some details on the objectives that B.S. worked on over the 2006-2007 school year and how he performed. The Maplebrook objectives do not line up perfectly with those in the district's IEPs, however the CSE should have tailored the 2007-2008 objectives to take into account objectives B.S. has already met, ones that are now too basic for him, or objectives that continue to be challenges.

In order to create an educational program that is reasonably calculated to enable B.S. to progress meaningfully, the CSE must create goals and objectives that align with B.S.'s needs. On this record, it is not credible that after a full year of education, B.S.'s needs were identical to those the CSE found the year before. To implement an IEP in light of evidence that B.S. progressed at Maplebrook would be inherently regressive. It is apparent that the CSE simply reprinted the unedited IEP. The Court finds that recycling an old IEP is not legally sufficient because it is not individualized or appropriate for B.S. for the specific school year to which it pertains.

3. The 2007-2008 IEP did not provide B.S. a FAPE

The Court has found that the class grouping under the 2007-2008 IEP was not appropriate. The Court also found that the district did not take into account the progress B.S. made at Maplebrook in formulating the IEP and therefore proposed an inappropriate education plan that was not updated to reflect B.S.'s progress since the year before. For these reasons, the Court concludes that the 2007-2008 IEP did not provide B.S. a FAPE.

The IHO and the SRO properly evaluated the 2006-2007 IEP but improperly imputed many of the same arguments to the 2007-2008 IEP. In that regard, they committed the same error as the school district. While the IHO and SRO found Ms. Mellon's observations and progress reports compelling, they erred in not crediting the progress B.S. made at Maplebrook. The Court must reverse their rulings on the grounds that they failed to take into account important information about B.S. in formulating the 2007-2008 IEP.

e. Tuition reimbursement claim for 2007-2008 school year

The Court may require the school district reimburse parents for their expenditures for private school educational services obtained for a student by the parents, if (1) the services offered by the district were inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. Sch. Comm. of the Twn. of Burlington Mass. v. Dept. of Educ., 471 U.S. 359, 370 (1996). The parents will not be automatically barred from reimbursement if the private facility is not approved by the State Education Department as a school for children with disabilities. Florence Co. Sch. Dist. Four v. Carter, 510 U.S. 7, 11 (1993). Parents are also not held to the same strict standard of placement as are school districts, and the inability to place a child in the least restrictive environment will not bar parental reimbursement. W.S. L.S. o/b/o C.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 139 (S.D.N.Y. 2006) (citing M.S. v. Bd ofEduc. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)).

1. The District's 2007-2008 IEP was inappropriate

The Court found above that the 2007-2008 IEP was inappropriate. The Court now considers the other two prongs: whether Maplebrook was appropriate for B.S. and whether equitable considerations support the parents' claim.

2. Maplebrook was appropriate to meet B.S.'s needs for the 2007-2008 school year

The IHO and SRO did not reach the question of whether Maplebrook was appropriate for B.S.'s needs, therefore the Court makes a de novo finding. A private placement is proper under IDEA if the education provided in the private placement is reasonably calculated to enable the child to receive educational benefits. Florence Co. Sch. Dist. Four, 510 U.S. at 15. As the Second Circuit has stated:

Parents who seek reimbursement bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. . . . 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. . . . [T]he issue turns on whether a placement-public or private-is `reasonably calculated to enable the child to receive educational benefits.'" Frank G. v. Bd of Educ., 459 F.3d 356, 364 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 207, 102 S.Ct. 3034 and identifying certain exceptions). A private placement meeting this standard is one that is "likely to produce progress, not regression." Walczak, 142 F.3d at 130 (internal quotation marks omitted).

Gagliardo, 489 F.3d at 112. However, academic success at the private placement alone is not sufficient. The Court must find that a preponderance of the evidence supports the finding that the placement at Maplebrook provided B.S. with education instruction specifically designed to meet his unique needs. Gagliardo, 489 F.3d at 115.

The Court has already marshaled evidence of B.S.'s social, emotional, and academic progress at Maplebrook. A review of the IEPs and progress reports shows a program that is attentive to B.S.'s needs and has found a way to accommodate his unique profile. While his scores indicate extremely low intellect and academic ability, the teachers are Maplebrook are seeing progress in core academic areas and have noted that B.S.'s main weakness, attention deficit, has improved in some settings. Reports from his math teacher show that there is still more progress that can be made, but overall B.S. is doing much better in classroom settings than his scores would imply.

Futhermore, Dr. Marc Weiler, a psychologist retained by the parents conducted an updated evaluation of B.S. using the WIAT test. His report, dated September 20, 2008, was admitted into evidence at the hearing. The results indicated an improvement in B.S.'s word reading and reading comprehension scores above what would have been expected. (P-HH). Dr. Weiler also states in his report that he believes B.S. could be reading at a 6^th grade level by the time he graduates from Maplebrook, which would open up more vocational opportunities for B.S. and predicts his ability to live independently as an adult. (P-HH).

B.S. has also responded well to the RISE program and has developed socialization skills that will improve his chances of holding down a job, avoid co-morbid psychiatric conditions, having meaningful relationships, and living independently. (Tr. 1264). His active participation in Maplebrook's sports programs have contributed to B.S.'s development as well. (E.S. Aff. ¶¶ 10-14).

Defendants disagree that B.S. demonstrated progress while at Maplebrook, but in doing so, they undermine their own argument that Ms. Mellon's observations show that B.S.'s progress while in the district's middle school. The school district argues that because B.S.'s test scores remained the same or were slightly worse after a year at Maplebrook, B.S. made no progress. However, the district takes a less test-centric view when considering how B.S. fared in Ms. Mellon's classes. There, the teacher's observations indicate that B.S. progressed while his test scores did not improve. The Court finds that since both teacher observations and test scores are considered by the school district in developing IEPs, it is fair for parents to also consider both in deciding if a private placement is appropriate. In this case, the qualitative information on B.S. shows substantial progress, and there is some objective evidence as well that he has made slow progress in certain academic areas.

Defendants also argue that Maplebrook is not the least restrictive environment because there are no non-disabled students. The Court recognizes that this factor alone does not bar a parent's claim for reimbursement because parents who unilaterally place their child will commonly place him or her in a private school that specializes in teaching children with disabilities. Cleveland Heights Univ. Heights City Sch. Dist. v. Boss, 144 F.3d 391, 400 n. 7 (6th Cir. 1998). The right of parental placement would be vitiated if the courts were to find that such a private school placement violated IDEA's mainstreaming requirement.

Given B.S.'s social and academic needs, Maplebrook is the least restrictive environment because it provides him with an opportunity to interact with students who have a range of abilities and participate in activities that he is excluded from in the public school setting. For example, even though he is able to take general education P.E. classes, B.S. was unable to play on sports teams in the district because there is no provision for a student of his ability to join — at KLSD, there are try-outs and physical requirements for the teams that he cannot meet. (E.S. Aff. ¶¶ 35-38). Rather than learn in a very small class with students who are now significantly different from B.S. in terms of social and physical impairments, B.S. has shown he can succeed in a larger, more standard academic class with more opportunities for peer-learning. At the same time, Maplebrook offers the vocational training that has also been recommended for B.S.

The Court concludes that Maplebrook was an appropriate placement for B.S. for the 2007-2008 school year.

3. Equitable consideration support the parents' claim for reimbursement

If parents meet their burden, the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief. See Florence County Sch. Dist. Four, 510 U.S. at 16. Here, the Court considers the economic hardship that Plaintiffs have endured in placing B.S. in private school. (E.S. Aff. ¶¶ 6-7). The Court also considers that Plaintiffs were active participants in the CSE's process of developing their son's IEPs. While they strenuously defended their views, they did not impede the process or otherwise fail to cooperate. They provided the school district with testing information and documentation from Maplebrook to enable the development of an appropriate education plan. They included their experts in meetings to provide clear and reliable information to the CSE.

After reviewing the record, the Court does not agree with Defendant that the parents acted in bad faith in paying tuition to Maplebrook in June 29, 2007 before the school district had an opportunity to finalize the 2007-2008 IEP. The first meeting occurred on May 11, 2007 but was adjourned until testing from Maplebrook could be made available. In the meantime, the district did not consider or propose any alternative placements, or give serious consideration to keeping B.S. at Maplebrook. The parents accurately assessed that the district was unwilling to offer anything more than the IEP it had already designed the year before. The next meeting did not occur until August 2007, which would have been late to secure a private placement for B.S. Nevertheless, M.S. testified that she remained willing to consider a district placement, even as late as September 24, 2007 when she requested to observe Ms. Frasca's class. (Tr. 1768; SD-55). The Court finds that equitable considerations, such as the parents' efforts to participate in the district's process and the cost to them of a private placement, support their claim for reimbursement.

IV. Conclusion

The Court holds that because the 2006-2007 IEP provided B.S. a FAPE in accordance with IDEA, Plaintiffs are not entitled to reimbursement for the 2006-2007 school year. However, the Court holds that the 2007-2008 IEP did not provide B.S. a FAPE in accordance with the IDEA because it was not reasonably calculated to enable B.S. to meaningfully progress given his needs following the 2006-2007 school year. The Court overrules the IHO and SRO's decisions with respect to the 2007-2008 IEP and grants Plaintiffs' request for reimbursement for that school year. Accordingly, the parties' cross motions for summary judgment [dkt. nos. 29 and 35] are granted in part and denied in part. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

SO ORDERED:

Dated: September 30, 2010