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July 14, 2004.

PEGGY WATSON, as a parent of Ben Watson, a disabled student, Plaintiff,

The opinion of the court was delivered by: DAVID HURD, District Judge



  Plaintiff Peggy Watson ("plaintiff") brings this suit against defendant Kingston City School District ("District") alleging failure to provide her son, Ben, with a free appropriate public education ("FAPE"), in violation of the Individuals with Disabilities in Education Act, 20 U.S.C. § 1415(i)(2) ("IDEA"). Specifically, plaintiff contests a State Review Officer's ("SRO") conclusion that her son's Individualized Education Program ("IEP") for the 2001-02 school year was appropriate. Both parties have moved for summary judgment pursuant to Fed. R. Civ. P. 56.*fn1 Oral argument was heard on March 25, 2004, in Albany, New York. Decision was reserved.


  Ben was classified as learning-disabled by the District's Committee on Special Education ("CSE") in December 1993 due to auditory-language processing problems. (Docket No. 12, p. 1.) In accordance with the IDEA, the CSE developed yearly IEPs for Ben. (Docket No. 33, SD-6, 7, 10, 20, 33, 41) ("Admin. Rec. SD-__").

  His disputed 2000-01 IEP, modified after settlement, provided that Ben: (1) be placed in special, non-inclusive classes for English, Math, Science and Social Studies with 12 students for 1 regular classroom teacher and 1 special education teacher, (2) receive speech/language therapy once a week, and (3) receive multi-sensory reading instruction. (Admin. Rec. SD-41, p. 1.)

  On October 2, 2000, plaintiff sought an independent audiological evaluation from Professor Gertner ("Gertner") of Kean University. Gertner found that Ben had trouble hearing and repeating words. He recommended that Ben be placed in a reading program that utilized Orton-Gillingham instruction ("O-G"), a form of multi-sensory reading instruction. Gertner also recommended that Ben be instructed in smaller, sound-controlled classrooms, with as much one-on-one instruction as possible. (Admin. Rec. SD-43.)

  On October 10, 2000, the CSE suggested that Ben receive a behavioral evaluation because he was being disruptive in class. (Admin. Rec. SD-45.) Plaintiff asked the District to implement Gertner's recommendation that the school use the O-G method of instruction and that her son be placed in a private school, in order to negate the potential stigma of Ben being viewed as a special education student. Id. The District denied plaintiff's requests.

  Ben spent approximately one month at a District school in the fall of 2000, before being removed from the District school by plaintiff. (Admin. Rec. SD-47.) He was subsequently home-schooled from October until December 2000, and then began tutoring sessions in January. Id. District teachers tutored Ben in all his classes except Math, for which he received instruction from his grandmother, a retired teacher. Id. Testimony below indicated that before voluntarily leaving the District, Ben voiced his concern and anger about being classified as a special education student, (Docket No. 29, pp. 67, 83-85), and that at plaintiff's request, the District had begun investigating the possibility of placing Ben in an "integrated" classroom setting, (Docket No. 18, p. 11.)

  Plaintiff obtained a second independent evaluation from Dr. Phoebe Liss ("Liss") in December 2000. Liss also recommended that Ben receive O-G instruction in a small classroom environment. (Admin. Rec. SD-49.) The CSE thought that Liss's recommendations could be applied within the District, although it was cognizant that Ben was concerned about being stigmatized for receiving special education services. Ben's home-schooling continued throughout the spring of 2001. (Docket No. 28, p. 4.)

  In June 2001, the CSE developed Ben's 2001-02 IEP. In creating the IEP, the CSE considered Ben's auditory-processing needs and level of academic performance, as shown by his April 2000 WIAT and November 1999 WISC III scores. (Docket No. 41.) While not included in the IEP, additional material was assessed by the CSE, including Ben's IQ scores and successful English Regents exam results, Gertner's and Liss's independent evaluations, spring 2001 tutoring evaluations completed by District instructors, two psychology exams conducted by the District, and previous IEPs. (Docket No. 28, p. 6; Docket No. 29, pp. 65-67.) The District also discussed mainstreaming alternatives with plaintiff, Ben's potential need for an FM trainer, and preferential seating within classrooms. (Docket No. 28, p. 6; Docket No. 29, pp. 60-62, 247.)

  Based on Ben's needs, the CSE developed a series of related objectives to assist Ben in progressing through the high school curriculum. These objectives focused on improving his language, mathematical, organizational, study, and attending skills. The CSE also provided Ben with special education services that would help him to successfully meet the IEP's objectives, while placing him in a less restrictive classroom environment. (Docket No. 41; Docket No. 29, pp. 36, 40.) These services included speech therapy and multi-sensory education sessions to improve his vocabulary and comprehension skills. The IEP also stipulated that several classroom modifications would be put in place, such as repetition of material by the classroom instructor and modification of tests and assignments. (Docket No. 29.)

  Ben's 2001-02 IEP specifically recommended that Ben continue to be classified as learning-disabled but that he be placed in a larger, more inclusive classroom setting. The CSE also stated that once every six school days he should receive one-on-one speech therapy for forty minutes and multi-sensory reading instruction for thirty minutes. (Docket No. 41.) Plaintiff requested an impartial review of the 2001-02 IEP on July 1, 2001. She was particularly concerned that the IEP did not include appropriate academic and social peers for Ben. (Admin. Rec. SD-67.)

  The impartial hearing officer ("IHO") reviewed the proposed IEP and found that it was inappropriate for Ben. (Docket No. 27, pp. 9-10.) Specifically, the IHO stated that the CSE had insufficiently developed Ben's IEP because (1) it had not personally observed him in the home-school setting, (2) the IEP was not created when Ben had started home-schooling, (3) it had not considered the recommendations of Gertner or Liss, or the prospect of Ben attending a private school, (4) the IEP did not include an assistive technology evaluation, and (5) the language instruction was not sufficient in length or ...

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