New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: September 30, 2010

November 10, 2010

December 1, 2010

January 14, 2011

February 3, 2011

February 11, 2011

April 8, 2011 Hearing Officer:

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 30, 2010

Student

DOE

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2010

Student

Student

Parents

DOE

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 1, 2010

Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 14, 2011

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 3, 2011

Student

Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 11, 2011

Student

Parent/ — Student

Student

(via telephone) — Student

Student

(via telephone) — Student

(via telephone) — Student

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 8, 2011

Student

Parents

DOE

This matter came before me on September 30, November 10, December 1, 2010 and on February 3, February 11, and on April 8, 2011, the hearing was held pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). The ( ) request was received on July 15, 2010 and the compliance date was extended after each hearing date. Appended to the record are lists of persons in attendance and of documents submitted into evidence.

BACKGROUND

The student is a year old who is classified as . The Department of removed from his parents when he was years old; his has of the child. He has been for care at least times by the time he was years old. The student has significant resulting in him from to another. I n March, 2005 the Department of Education (DOE) recommended and placed the student at the ( ) in . In 2006, added to the student’s a , the ( ) includes a for . The are targeted to reduce the frequency of his , and .

The has requested that the student’s pendency placement be controlled by the last agreed upon Individualized Education Program (IEP) dated March 24, 2006. (Exh. B) Accordingly, the student remains at , in a class setting of with authorized including to his major . Also, the student will continue with a 16 hours per day including week-ends and all other services and programs as set forth in that IEP. A pendency order was issued on September 30, 2010 which included the aforementioned placement, programs and services, effective from July 14, 2010 until a final decision is rendered on this matter. The commenced this hearing seeking a continuation of the placement with the same services and programs as previously cited, for the 2010-2011 school year.

The Committee on Special Education (CSE) convened an IEP meeting on June 1, 2010; the CSE deferred the matter to the Central Based Support Team () for a residential placement with a 12:1:1 class and related services. (Exh. C) However, no placement was offered by the start of the 2010-11 school year. The DOE concedes prong one of the Burlington/Carter criteria that it failed to provide the student with a “free appropriate public education” (FAPE). It will not offer any witnesses regarding a FAPE. The DOE argues that is not an appropriate placement and that the equities do not favor the . Also, the DOE contends that the burden of proof shifts to the to establish that is an appropriate placement for the current school year.

THE ’S CASE

testified that the student is her and that she was of the child in February, 2000 because both parents were . When she initially took of him he had been diagnosed with ( and for the following years he presented with . He would take off his , , and in general class, in each education school he attended. The recommended that he be . Several different were administered, however, some had effects and none were to his . In 2003, he was to different for care arising from that occurred in school. He a child with a , he in class and at he the . She stated he was constantly , and . His of persisted into 2005, wherein he was in for several months. In March, 2005 he was placed at , a residential school and he continues to reside at . (Tr. 132-136 and 137-138 )

used different and reward systems in an effort to his , for the . Subsequently, he was placed on , the ( ). She described the and the placement of it on his . His has , he is that there are for , he . (Tr. 144-146) She recalls the student receiving in 2010. The reviewed the IEP from June 1st, 2010, she stated that she did not attend and did not recall receiving any written notification of the meeting. In addition, she testified that the telephone number on the IEP was an old number and that she has had her current number for the past seven years. The cell phone number listed on the IEP is current and belongs to her ; however, she has no recollection of her contacting her regarding the CSE meeting. Moreover, the stated that she did not receive a copy of the IEP from the DOE and did not receive any documentation regarding a change in the student’s program or placement.(Tr. 149-152)(Exh. C)

Ms. testified that prior to October, 2010; she had not received any documents or engaged in any communications with anyone from the DOE that informed that her education program had been changed. She recalled sometime in September, 2010 that , who arranges , contacted her and sought consent for persons from other schools, to visit the student in person at . She complied with ’s request regarding allowing different schools to send personnel to interview her despite not knowing why the DOE wanted to change the placement. Ms. reviewed ten letters handed to her by counsel; the letters were from numerous potential schools, rejecting the student. She never received any of them and was not aware that the DOE had applied to those schools. The letters were dated from September through October, 2010. She stated that in her opinion continues to be an appropriate placement because it is a and keeps him focused. The is still necessary because the student is and has no when he someone. The reminds him that there are for . (Tr. 155-157;159-161 and 162-163) (Exhs. 3-13) Each time the is administered sends her letter reporting the that gave rise to use of it.(Tr. at 168)

On cross-examination, she admitted that the student had very doing his ten day visit last summer. He from her, the and a year old child and had to contact to come and get him. When the student comes , Ms. has the and does not employ any methodology to keep his in check. She him . (Tr. 173174)

Ms. stated that a man contacted her regarding changing the student’s placement; she informed him that she liked . The man did not pursue the matter any further; the was unable to recall the name or school that he represented. (Tr. 190-192) The recalled being contacted via a letter by , from School; she contacted and made an appointment to visit the school. Pursuant to advice, she contacted to have arranged. advised her was only available if she brought the student with her on the interview. She explained that he was in school and that she couldn’t take him from school. Next, she followed up with office to cancel the appointment since was not available via DOE and on her own she had no means to get to the school. Opposing counsel recited a list of schools, approximately , to ascertain whether the had received a letter or telephone call from any of them; she had not.(Tr. 193-196)

Ms. testified that other than the October 19, 2010 letter from , she did not receive any other correspondence from for the 2010-2011 school year. She stated that she had conversations with Julie within the school year, the first was when Ms. requested consent to have school representatives visit the at . The second conversation was when she contacted Ms. for to visit the School, in October. The final conversation was in November, prior to Thanksgiving, when she wanted for her and to visit . She contacted office, left a message; did not return her call. (Tr. 197-200) T he stated in the beginning received several however, each subsequent year the have been reduced. In 2010, he received which is less than in 2009. (Tr. 214-216).

testified that she is the student’s ; she has a . in and is a Board Certified ( . She is employed by as an of and as an educational for some of the students. Her duty as an requires her to oversee the rest of the to ensure that they are properly administering their responsibilities. As a direct she works on ensuring that an appropriate ( ) is developed to address the student’s needs which a reduction in and an increase in appropriate . She explained in detail what a is and then described the purpose of the which is based on the findings in the . The idea of analysis is grounded in a theory that there are four functions of : , , to get and then because it good. (Tr. 308-310 and at 311)

The stated that is an that is focused on the of ; it of student . A population that has low cognitive skills and typically is categorized as either or or with other . The other student population consists of students who are diagnosed as typically they are students with poor school records, who have been from various schools due to conduct . is , who was a student of . is the of which gave to who went into the with . (Tr. 313-315)

employs a approach which reinforces appropriate by rewarding the student and are . Rewards include items, breaks from work, to spend at on the grounds and other things that are to the student. may include of , time out from rewards or from a preferred to a - and any other that would serve as a to continue the . Also, there are , a term designated by the . consist of a ( ) which is a small or various types of . The is composed of , a and a that looks like a and that are placed usually on the / . The lasts for seconds. The , it gets your and makes you not want to continue in engaging in the that gave to the . A person the based on the student’s paperwork which indicates which are to be addressed by the . (Tr. 316-318)

Approximately of the + school age student at is with the . Also, provides if it’s on the student’s IEP and is provided on alternate days in five to ten minute sessions. When students first arrive at they are assessed, they are put on a positive only program. However, if after months to a year, the student’s persist after exhausting positive supports, they will approach the parent regarding the . The parent is fully informed by staff about the ; the parent is free to reject the option and will continue its positive program. However, if the parent desires for to use the , then the process to gain judicial approval is started. (Tr. 323-325; 328-329) The explained in detail the process from beginning with the DOE through the judicial proceedings. (Tr. 329-330)

stated that she has been for years; over that period of time she was either his or his direct . Currently, she is his direct and will have to review or change his plan by May, 2011. She will revise his , for the upcoming school year. Every twelve months, in order to continue the , it must be presented to the court for approval. She discussed his current , his , and his diagnosis with respect to his . The student has a diagnosis of . She noted that the student has been on several different , the were not in his and . Other were tried and before to the . The reviewed and discussed the in its entirety. (Tr. 3311-333; 335-338) ( Exh. J)

She stated the student’s have decreased from to one in the most recent thirty day period between April and May, 2010. His noncompliance have gone from 356 to 2. In the major category, the decreased to zero during a monthly period. She opined that the treatment was the cause of the significant improvement. The staff members keep monthly data sheets on the so that they can the effectiveness of his . She reviewed some of the monthly charts, tracking his initial in targeted areas to December, 2010. (Tr. 343-345; Exh. Q) During the month of December, 2010, he received for a period of four seconds; both were for . She concluded that the treatment is highly effective as reflected in the substantial decrease in . (Tr. 350-353)

The reviewed and discussed the various components of the Proposed Amended ( ) in detail. She noted that there are replacement that are taught to the student to decrease the . The replacement are taught in different ways and each one is a different sort of task. The functional assessment provides the reasons for the . acknowledged that she is aware that New York State prohibits the use of the for other than and . However, has two additional categories that it uses to treat with the and they are - and major . She explained that due to a lawsuit and injunctive relief, plaintiffs in the lawsuit are permitted to be for additional categories.(Tr. 360-362; Exh. J)

The functional ( ) and ( ) were reviewed. She explained the various sections of each. In the , the first section lists the specific that the observed when was being . Next section, attempts to identify the factors that are which caused the . It attempts to explain and describe all of the contextual factors that would most likely give rise to the . This is important to help determine the function of the and to set up replacement . The apparent maintaining consequences section identifies the primary purpose/function of each . The main reasons for were escape from his demands and the second reason was for attention. The next column shows strategies that are put in place to prevent the undesirable such as consequences that are set up as road s to deter the . The consequence for engaging in is he receives a application. (Tr. 362-365; Exh. M)

opined that continues to need to include the . She stated that when the is not available, for whatever reason and is aware that the is not an option he will immediately engage in or other targeted . The is highly beneficial, despite the fact that receives very few The presence of the keeps his in check and enables him to progress in other areas. In the past when the was removed, there was a substantial increase in all of his . However, the student has been faded from . Also, a few of the were removed from his categories. She noted that the fading out of the and some is consistent with the Fading Policy and Procedure designed specifically for the student. She noted that the next step in would be to another and to continue removing till they are reduced to the bare minimum. The stated the student has made improvements in reading and spelling. His social skills are improving. He does know what constitutes appropriate social skills and needs to be more consistent. The sessions have helped with the social skills. The student has not engaged in any over the last year. She opined that is an appropriate for the student. (Tr. 380383 and 387-389) (Exh. S)

On cross examination, admitted that it was her understanding that the DOE does not want any student on . (Tr.at 402) She reviewed the student’s classroom schedule and acknowledged that the schedule does not indicate social skills training and counseling. (Tr. at 419-421; Exh. 18) Also, the conceded that failed to meet his goal regarding reducing the frequency of as noted on the June, 2010 to September, 2010. There was an increase in his educationally interfering which caused him to fail in making much progress towards meeting his current IEP goals and objectives during that same period. In addition, his 30 day chart for April, 2010 to May, 2010, shows that in the verbal category there was a substantial increase from 1660 to 3455. (Tr. 425-427) (Exhs. Q, J and P)

responded that the increase from 130 in August, 2010 to 331 in October, 2010 as well as the increase in are directly related to the decrease in and the - . She stated that the and are his for the more that are with the . She noted that they are working on reducing those .( Tr. 439-442; Exh. 19)

testified that she is an education at ; she has a Bachelors in Education and is not licensed. She described her duties as consisting of running IEP meetings, taking notes and working on the progress reports and report cards. She reviewed her notes from the June, 2010 IEP and identified the team members who participated at that meeting and their area of expertise. Next, she identified the DOE team members and their comments. She noted that the CSE special education commented that it appears that the student could use a less restrictive program. He did not provide any reason for that suggestion. The CSE school psychologist stated the case needed to be referred to and also that they cannot put the in the IEP; no explanations were provided for the changes.(Tr. 464-465 and 469-471) (Exh. 17) Ms. stated that she had to request a copy of the June , 2010 IEP; she did so by letter on August 6, 2010. (Tr. at 473 and Exh. Y) On , she stated that the education suggestion was that could use a . (Tr. 478)

stated that she has been the at for the past years and has worked there for approximately years. She received her from the state of last year. She has and has taught him. She acknowledged that conducted a report for the student in 2009, subsequently after , she conducted the same in March, 2009. She explained that she and used the of , ( ) which is a that , , and as well as .(Tr.484-487 and 488-490) (Exhs. 1 and Z)

The is once a year and took about to complete it. is for the student; he requires a lot of breaks. The student has , and . She noted that he is much more comfortable with his and the classroom setting and opined that the scores may not reflect his . She and of the student resulted in very similar scores. The student scores on both tests indicated that he was functioning academically on a to grade level, depending on the subject matter. Those results were a slight improvement over his 2008 scores. His 2010 scores show a marked improvement, he advanced approximately two grade levels in and approximately a in m . She stated that there is a discrepancy between the results and his evaluation of his academic performance. According to Ms. , his , the student is performing on a grade reading level and on a late to grade level in . She opined that the student is making solid academic progress because his has improved substantially, which has made him available for learning. (Tr. 492-495) (Exhs. 1, Z and AA)

Ms. stated that she taught for a few weeks when he first came to , approximately years ago. She acknowledged that she is aware of the student’s increased verbal outbursts and misconduct. She was able to demonstrate through a comparison of the two evaluations that in the area of nonsense word decoding he advanced more than a grade level. However, she acknowledged that the 2010 report indicated throughout that the student had no identifiable strengths in spelling, reading comprehension, oral expression, written expression, math and in a host of other subject areas.(Tr.498-500 and 501-503) (Exhs. Z and AA)

On redirect, Ms. referenced report which found that the student’s academic performance on her test was commensurate with his IQ level, which is . She stated that the student’s actual academic performance is approximately two grades higher than reported on the More specifically, his reading comprehension is approaching grade level and the national average for his age group is late grade to early grade. He is approximately and a the average child in the United States. (Tr. 510-512; Exh. AA) On re-cross examination, she admitted that she made an error in stating that the only area of decline in 2010 was in associational fluency. The student also declined in the area of listening comprehension. She noted that it is typical for a child to show a decrease in one or two areas, compared to the 12-14 areas measured overall. (Tr. 510 -512; 513-514) (Exhs. Z and AA)

The next witness, , testified that she is the student’s classroom ; she holds licenses to teach education and education from the . She teaches all of his core subjects, consisting of English, arts, mathematics, social studies, health and science. Her class has and , , a classroom and for . The school day runs from nine to . The student receives reading tutoring, twice a week for thirty minutes and for thirty minutes weekly. She estimated the student’s academic functioning levels to be on a grade level for reading and math. He with expressing his own thoughts in writing and consequently his writing skills are about grade.(Tr. 536-536 and 539-541)

During cross examination, she conceded that the student still engages in and has not progressed in that particular area. Also, she conceded that in several academic areas he has not progressed, he remained the same. However, she noted that even though he has mastered several goals, she wants him to continue doing them and to go beyond the stated percentage goal.(Tr. 550-552 and 571-574) (Exh. EE)

FINDINGS OF FACT AND DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 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. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The 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. § 1415[f][3][E][i]). 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 Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606

F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). 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. § 300.101[c][1]; 8 NYCRR 200.4[c][5]). program for the next school year" (34 C.F.R. § 300.324[b][1]; 8 NYCRR 200.4[f]; see 20 U.S.C. § 1414[d][4][A][i]; Educ. Law § 4402[1][b][2]). A district must have an IEP in effect at the beginning of each school year for each student in its jurisdiction with a disability (34 C.F.R. § 300.323[a]; 8 NYCRR 200.4[e][1][ii]; Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6 [stating "[a]n education department’s delay does not violate the IDEA so long as the department 'still ha[s] time to find an appropriate placement … for the beginning of the school year in September'"]; Application of the Bd. of Educ., Appeal No. 10-006; Application of a Student with a Disability, Appeal No. 09-111; Application of a Student with a Disability, Appeal No. 08-157; Application of a Student with a Disability, Appeal No. 08-088). ]). As a matter of State law, a school year runs from July 1 through June 30 (Educ. Law § 2[15]). Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; ^[8] NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 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 NYCRR 200.4[e][7]; Application of a Child with a Disability, Appeal No. 08-087).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP inadequate under the IDEA (A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y.] In the instant matter, the DOE admitted that it did not provide the student with a FAPE and did not present any testimonial evidence, only documentary evidence was admitted into the record. As noted above, the DOE conceded that it failed to provide the child with a FAPE for the 20102011 school year thereby conceding the first prong of the Burlington/Carter prong test. (Tr. at43 and 631) Next, I must now determine whether the has met her burden under the second prong of the test which requires the to establish the appropriateness of the services obtained for her .

Based upon a review of the record, I find that the has sustained her burden to establish the appropriateness of the continued placement of the student at the . The record shows that the student has made slow and steady academic progress, as reported by his , Ms. and Ms. . (Tr. 235-236; 506-509; 510-513 and 593-596 602-603) The student has made gains with his ; his testified that she only has had to administer one during the period from October, 2008 to the present school year.(Tr. at 605) His opined that despite only having to apply a once over the past two years, she believes that the student continues to need the because it acts a deterrence and keeps his in check.(Tr. 606-607) His , has noted that the student has made vast improvements academically and in his social skills. Also, she stated that he has not engaged in any and opined that the continues to be necessary.(Tr. 384-385 and 386-388) The has shown that has provided educational services that were “proper under the Act”( Carter, 510 U.S. at 12,15; see Burlington, 471 U.S. at 370. The services provided at addressed the child’s unique special education needs. Accordingly, I find that the prevails on prong two.

I turn now to whether the claim is supported by equitable considerations, the third criterion. The DOE argues that the failed to cooperate with the schools who were trying to interview him. I find their argument without merit since the parent did not receive any material for the 2010-11 school year until October, 2010. The DOE shall continue funding this child’s education at .

ORDER

The Department of Education shall continue the funding of for the remainder of the 2010-11 school year and shall amend the IEP to include and all the support and services recommended in the last agreed upon IEP, from March, 2006. Date: May 12, 2011

_________________________

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

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

DOCUMENTATION ENTERED INTO THE RECORD SEPTEMBER 30, 2010

PARENT

A Impartial Hearing Request, 7/14/10, 5 pp. B IEP, 3/24/06, 14 pp.

DOCUMENTATION ENTERED INTO THE RECORD NOVEMBER 10, 2010

PARENT

C IEP, 6/1/10, 11 pp. D DOE Due Process Response, 8/18/10, 4 pp. E First Preliminary Injunction Order, 9/8/06, 7 pp. F Second Preliminary Injunction Order, 10/2/06, 3 pp. G Findings of Fact and Decision, 10/15/07, 21 pp. H Statement of Agreement and Order, 9/25/09, 5 pp. I Statement of Agreement and Order, 7/1/10, 7 pp.

DEPARTMENT OF EDUCATION

1 Evaluation Report, 2/19/09, 6 pp.

DOCUMENTATION ENTERED INTO THE RECORD DECEMBER 1, 2010

DEPARTMENT OF EDUCATION

2 Rejected 3 Rejection Letter from , 8/24/10, 1 p. 4 Rejection Letter from , 8/24/10, 1 p. 5 Rejection Letter from , 8/26/10, 1 p. 6 Rejection Letter from , 8/27/10, 1 p. 7 Rejection Letter from , 8/30/10, 1 p. 8 Rejection Letter from , 9/1/10, 1 p. 9 Rejection Letter - , 9/8/10, 1 p. 10 Rejection Letter from , 9/15/10, 1 p. 11 Rejection Letter from , 9/23/10, 1 p. 12 Rejection Letter from , 10/14/10, 1 p. 13 Rejection Letter from , 10/15/10, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD JANUARY 14, 2011

DEPARTMENT OF EDUCATION

14 Policy for Committee, 11/23/2008, 1 p. 15 Policy for , and , 11/09/2009, 14 pp.

16 Policy on and , Undated, 3 pp. 17 Meeting Form, 06/01/2010, 3 pp. 18 Classroom Schedule, Undated, 1 p. 19 Notes, 12/12/2008 to 11/29/2010, 12 pp. 20 Omitted 21 Omitted 22 Letter from , 10/14/2010, 1 p. 23 Letter from , 10/14/2010, 1 p. 24 Letter from , 10/18/2010, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 3, 2011

PARENT

J Proposed , 5/13/10, 39 pp. K Affidavit of , , 6/28/10, 6 pp. L Probate and Decree and Order, 7/15/10, 2 pp. M and , 10/15/09, 10 pp. N Quarterly Progress Report, 9/2009-3/2010, 12 pp. O Progress Report, 3/2010-6/2010, 11 pp. P Quarterly Progress Report, 6/2010-9/2010, 12 pp. Q Student Charts, December 2010, 17 pp. R , 12/6/10, 7 pp. S Fading Plan, Undated, 2 pp. T Right to Effective , 1998, 4 pp. U of , 2008, 11 pp. V on , 5/20/08, 67 pp. W of with That Includes , 11/21/09, 3 pp. X of Students at , 1/28/10, 9 pp. Y letter to . , 8/6/10, 1 p.

DOCUMENTATION ENTERED INTO THE RECORD FEBRUARY 11, 2011

PARENT

Z Report, 3/25/09, 3 pp. AA Report, 5/27/10, 10 pp. BB and BIP, 12/15/10, 10 pp. CC Monthly Charts, 2005-2011, 10 pp. DD Daily Charts, 1/23/11, 10 pp. EE Quarterly Progress Report, 9/10-12/10, 12 pp.

Footnotes

[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal