New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth: District: 2 Hearing Requested By: Parent Date of Hearing: April 13, 2011

June 9, 2011

July 12, 2011 Hearing Officer: Judith T. Kramer, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2011

Attorney — Student

Parents

Attorney — DOE

School Psychologist, CSE-Region 10 (via telehone) — DOE

Education Teacher,, School — DOE

(via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2011

Attorney — Student

Parents

Psychologist (via telephone) — Student

Classroom Teacher, School (via telephone) — Student

Headmaster, School (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2011

Attorney — Student

Mother — Student

Attorney — DOE

Headmaster, School (via telephone) — DOE

INTRODUCTION

On April 13, 2011, an impartial hearing was commenced pursuant to the Individuals With Disabilities Education Act (“IDEA”), 20 U.S.C. 1415 regarding the alleged failure of the DOE to provide a FAPE to (“the child“) for the 2010-2011. The hearing was held at the Impartial Hearing Office of the Board of Education of the City of New York located at 131 Livingston Street, Brooklyn, New York. The hearing commenced at 10:00 a.m. and was continued on June 9, 2011 and July 12, 2011.

A list of exhibits that were admitted into evidence is attached to this decision.

BACKGROUND

On December 2, 2010 the parent filed a request for an impartial hearing alleging that the CSE failed to provide a FAPE for the 2010-2011. Among other things, the parent alleged that there were procedural and substantive deficiencies in the creation of the IEP and that the child’s classification as and impaired is incorrect. As such, the parent is seeking prospective tuition payment for the child who was unilaterally placed in and attended the School for the 2010-2011 school year. (Parent’s Ex. A)

THE PARENT’S POSITION

The parent contends that there were many procedural and substantive defects in the child’s IEP created on June 18, 2010 including the fact that the child was given an erroneous classification and that there was no parent member present at the CSE meeting. She further alleges that she was not given a class profile of the proposed placement and that the placement at was not an appropriate placement for the child. The parent contends that the School provides the child with an appropriate placement and that she has made progress there. Lastly, the parent contends that the equities favor her because she has fully cooperated with the DOE. Accordingly, she is seeking prospective Connors relief for the tuition payments at the School for the 2010-2011 school year. Alternatively, during the course of the hearing, the parent’s counsel made an oral application to amend the request to include a request for Carter relief in the event the IHO found that the parent does not qualify for Connors relief.

THE DOE’S POSITION

The DOE contends that it provided a FAPE to the child. It contends that the IEP was properly created and that the CSE meeting was appropriately constituted. It further contends that the placement at would have provided the child with an appropriate placement and that the DPE was not required to provide the parent with a class profile. Finally, it contends that the parent is not entitled to have the child’s tuition paid by the DOE because there has been no evidence that she is obligated to pay the tuition if she is not successful here. The DOE asks that the request be dismissed in its entirety.

THE EVIDENCE PRESENTED

The student is years old. At the time of the CSE meeting in question, the child was going into the grade. She attended the School for the 2009-2010 school year. is a state approved education private school. She has been attending the School for the 2010-2011 school year. On June 18, 2010, a CSE meeting was convened and an IEP was created. The child was continued in her classification as and impaired which she has had since 2005-006. (Parent’s Ex.D.1, June 8, 2011,T.314) She was recommended for a : program at . (Parent’s Ex. G) Related services in (3x30 : ), (2x30 : ) and (1x30 3:1) were also recommended. (Parent’s Ex. N)

Dr. testified that he has been a school psychologist and has participated in CSE reviews for the last 7 years. He attended the CSE meeting for this child. He has limited recollection of the meeting but a detailed recollection of the discussion at the meeting. (April 13, 2011, T.31) He testified, as did the mother that the father was not able to fully participate in the CSE meeting because he had to remain in the waiting area to care for a younger sibling but that he spoke to him briefly on the telephone. The mother was present during the entire CSE meeting. (April 13, 2001, T.33, June 9, 2011, T.347, Parent’s Ex. A.3)

The CSE continued to classify the child as impaired. She had been initially classified as impaired in 2005 or 2006. (April 13, 2011, T. 36) Dr. believed that was an appropriate classification because the child suffered from mild to moderate impairment that was affecting her academic performance. He did not re-classify the child as OHI because he did not see medical reports from a treating physician or a psychiatrist presented to the CSE that the child suffered from . (April 13, 2011, T.

37) He was aware the child was previously taking medication for but he also knew that it was discontinued. (Id. at T. 38) He had reviewed two psychological evaluations. One indicated that the child suffered from and a disorder NOS. Id. The other indicated no clear-cut diagnosis. Id. at T.38) He was aware of her from the child’s teacher from who attended the CSE by telephone. (Id. at T. 40)

With regard to the gals on the IEP, Dr. testified that he received these goals from the child’s related service providers, as well as from the child’s teacher from . He believed that the recommended goals were appropriate for the child. (Id. at 46)

With regard to the functional levels reported on the IEP, Dr. testified that he did not enter the levels reported by Dr. because they did not make sense to him. He stated that the report indicated that the child was reading at an . grade reading level. He thought it was an error because her other scores on essay composition and WAIT II were reported at the and grade respectively. (Id. at T. 42-43)

Dr did not remember the parent raising the issue of the child’s at the CSE meeting. He did state that based upon the documents he reviewed, it was unclear to him as to whether the child had . He testified that and other related services were provided to address her and her needs which may impact her academic achievement. In addition, Dr. testified that the : program would provide the child with a highly structured setting where the child would be instructed in small groups; receive : and differentiated instruction. She could be given a management plan if needed and still be placed in the . (Id. at T. 52, 53, 54)

Overall, Dr. testified that the recommended program was appropriate as the LRE. He believed that a education school was not appropriate because she was achieving well and was not significantly below grade level. He believed that the child should not be isolated from a general education setting. (Id. at T. 52) He also stated that the two participants from disagreed and believed that the child needed a class with a lower student/teacher ratio.

, the teacher in the recommended class at , testified that he has been teaching education for 6 years. (Id. at T. 44) He stated that he would have been the child’s teacher this year. In the beginning if the 2010-2011 school year, he had 6 students in his class, by the end of the school year, there were 8 students. ( Id. at T.46) There was a paraprofessional in the class for one student. The students were functioning from mid-grade to upper- grade. Some were functioning at the grade level. Id.

He testified that before the school began, he would have had a and academic program in place before the children entered the classroom. (Id. at T. 148) Within the first few days of the school year, he meets with each student individually and does an assessment. Id. He uses Teacher’s College for decoding and Every Day Math Program for the math assessment. (Id. at T.149 He maintains the assessment data in a binder to monitor growth. Id. He would have grouped the child with two other students. (Id. at T. 150)

He testified that his class is highly structured and he could have implemented the child’s academic and / goals on her IEP. (Id. at T. 150) He indicated that he was aware of her impassivity and would have been able to redirect her task and to implement a self-regulatory tool to help her stay on task. (Id. at 152) He testified that there hasn’t been a single in his classroom that persisted for more than two minutes (Id. at T.168- 170) He would have had a quiet lunch in the guidance counselor’s office if needed. (Id.at 179) As to her academic goals, he utilizes Teacher’s College curriculum for reading skills such as inferencing, understanding characters. He utilizes graphic organizers, word attack strategies, smart board, shared reading and poetry activities. (Id. at 154- 156)

To meet the math goals, he testified that he models the skills several times using the smart board and math games. As to the writing goals, he also uses Teacher’s College curriculum and has his own interactive shared writing method.(Id. at 156-157) He uses team building to build self-esteem. He builds a “circle of trust”. T hey work on skills every day. (Id. at159)

He had children in his class with similar deficits and strengths as the child and he has successfully taught these students. (Id. at 164, 174) This year four were classified as , three were classified as and one was classified as . (Id. at T. 184)

He testified that could meet all of the child’s relat4ed service needs on site.

Mr. testified that he has dealt with disruptions in the classroom. He has a “chill out” desk in the classroom for children who want to work away from the group. T wo of his students had tempers; six were easily distracted and require shorter intervals of work. (Id. at T. 182-183) None of his students have BIPs. If a child is hyperactive, he breaks the lesson in to small steps.

Dr. testified that he is a clinical psychologist who has evaluated the child three or four times over the years. (June 9, 2011, T. 201) His evaluation dated February first and February 9th, 2010 was to clarify her diagnosis and to look at treatment and planning. (Parent’s Ex. E, 201) When he first met the child she presented with a myriad of issues ranging from , academic disorders, disorders, issues with regulation, and issues with and functioning. She made inappropriate sounds and faces. He testified that the child was often in her own world. She demonstrates immature speaking in a younger voice. (Id. at T.201-203) He stated that her skills were impaired. S he can often be and sad or happy and . (Id. at T.205) The child reported to him that she had difficulty making friends and that her peers find her and . (Id. at T. 206 –207) He testified that she needs a small structured environment with : . (Id. at T. 209) By small, he means less than 12 with education teachers and assistants in the classroom and therapeutic support with a psychologist involved in the child’s plan. (Id. at T.224) The child would not do well in large lunchroom situation. She needs a nurturing environment.

When Dr. tested the child in mid-year 2010, she was not reading at the th grade level. (Id. at T. 213) He said that the IEP was probably an accurate reflection of the child’s reading level at the time. (Id. at T. 214) She was reading at the grade level when he her saw two years ago (Id. at T. 214). He also stated that in a classroom setting the child may perform lower.

He stated that while the testing which showed her to be at the . reading level was not a typographical error, it overestimated her performance. He stated that he did not agree with the classification of impairment because even though she has and issues, she has higher level issues.( Id. at T. 220) His conversations with her teacher at revealed that her issues interfered with her educational progress. He could not say with certainty whether LD or ED would be best to classify her. He would probably prefer ED. (Id. at T.242) Medication was discussed but he said that there was no diagnosis yet. The child was recommended for a referral to a psychiatric treatment team for cognitive therapy. She is getting therapy in and out of school. (Id. at T. 238) Dr. noted that the child’s has improved this year. She is not as labile. (T.239-240)

is certified as a teacher in California. She is New York State Certified in administration. She is the founder and head of the School (“ ”). is with 110 students. There are up to 12 students in a classroom. The class ratio is . There are two classes per grade. The chldren receive related services on site. Academic and therapeutic services are offered there. The student population consists of students who have problems on and awareness and whose cognitive functioning is average or better than average. Very few students at are clasified as but they are fragile with and receive . (Id. at T. 261) Most are classified as .

The tuition at is $45,675 per year. The parent made a n $8,000 nonrefundable payment on September 22, 2010. (Id. at T.252)

The School, a for-profit school, takes loan from the Association, a non-profit entity, to assist families who can’t afford the cash flow. (Id. at T. 253) That loan agreement is not entered into evidence. They refer to this as Connors funding. (Id at T.268) To quailfy, the family haw to make less than $150,000 for a family of four. (Id. atT. 269) The parent does not sign that loan agreement and is not legally bound to pay the Association. The parent is obligated to pay the School by virtue of a separate agreement. That agreement has not been offered into evidence. Ms testified that if the parent does not prevail in this litigation, the School is not obligated to pay back its loan from the Association in the amount of $18,000. (July 12, 2011,T. 431) She further testifed that if the parent does not prevail, she does not know whether a decision wll be made to take legal action agains the parent for the balance of the tuition. She does not make that decision. That decision is made by the CEO of the parent company of the School.

testified that she is the child’s teacher at . (June 9, 2011, T. 276) She teaches her literacy, science, arts and writing. (Id. at T. 277) She stated that the child’s stregnths are in reading . Id. She has the ability to answer abstract questions. She is creative and artistic. She states that the child’s weaknesses are in writing and math facts. Id. She struggles with retaining information. (Id. at T. 278) As for her and abilities, Ms. testified that the child is sweet and compassionate.(Id. at T. 279) She is a hard worker who can become distracted. Id. She requies teacher support and . The teacher stated that the child engages in appropriate such as tapping her feet, calling out, invading people’s space and noise making. She also interrupts the teacher. (Id. at T.279-280) In order to assist the child, she uses a reward system to whicih the child responds well.(Id. at T. 282)

As for her progress at the teacher testified that the child now reads at the grade level. (Id. at T.285) She can read complex books and plays. She can multiply and divide and do long division. (Id at T. 287) She is at the mid-grade level. Her writing has improved. The child is working towards expressing her self in an appropriate manner. The child does not a BIP at . She said that the child needs a small class size with two teachers in the room. Her class ratio was : . (Id. at T. 288-289) The child receives once a week for thirty minutes at .

The mother testified that the child has had an IEP since turning . She has attended at least or six schools before -some were general education and some were education. She has also received related services for years. The mother took the child to see Dr. for the first time in 2004 or 2005. (Id. at T. 317) She has provided his reports to the CSE. She forwarded reports from Dr. as well as from the child’s related servoce providers for the March 2010 CSE meeting. (Id. at T.318) She testified that there was no parent member at the CSE meeting. She did not agree with the reading scores placed upon the IEP and did not agree with the decision to decrease the amount of therapy.

The mother testified that her child is slightly paranoid. The cihld has difficulty sustaining relationships. She is hot tempered and unpredictable. T he child has her parts to people. She crawls under chairs. The mother stated that at the child has had her best school year. The loves it there. The mother speaks to the child’s teaschers daily. The child’s have improved.

She visited after the child was already attending . (Id.T. at 352) She does not remember when she got the FNR but it was within the deadline. Id. She felt that the did not offer enough support for the child. (Id. at T. 353) She testified that the children in the class were almost all students. (Id. at T. 354)

With regard to the funding she received for School, she has paid a total of $8,000 to date. (Parent’s Ex. O) The mother testified that her husband works for and earns $109,000 a year. She owns a cooperative apartment in Manhattan than she estimates to be worth at least $500.000. (June 9, 2011, T. 360) She never spoke to anyone at the Association. She never executed an agreement between herself and the Association. She has a contract with to pay the tuition. The School told her that she qualified for Connors funding.

CONCLUSIONS OF LAW

Under the IDEA, a child with a disability is entitled to a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes education and related services designed to fulfill the unique needs of the student with a disability, and it is provided in conformity with a written IEP. 20 U.S.C. §1401(8).

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 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]; WalczakE.G. v. City Sch. Dist. of New RochellePatskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

The DOE may be required to pay for tuition at a unilateral placement in a private school or for education services where the DOE is found to have denied the student FAPE. Burlington School Comm. V. Dep’T of Educ., 471 U.S. 359 (1985); Florence County School Dist. V. Carter, 510 U.S. 7 (1993).

The DOE has the burden of showing by a preponderance of the evidence that it provided the child with a FAPE for the 2010-2011 school year. The DOE has met that burden.

Through the testimony of Dr. , the evidence shows that the IEP was designed to offer the child some meaningful educational benefit. The child’s former teacher at and the related service providers established the goals on the IEP. The reduction of the services was done upon the recommendation of the therapist.^[1] Dr.

testified that the : program was the . It would provide the child with a highly structured setting where the child would be instructed in small groups; receive : and differentiated instruction. She could be given a management plan if needed. Overall, Dr. testified that the recommended program was appropriate, as the , which is all the DOE, is required to offer. The DOE is not required to provide the child with an optimum placement as Dr. or Ms. would have preferred to see, only one that will offer the child an opportunity to obtain an educational benefit.

The parent’s claim that the child was denied FAPE because there was no general education teacher present must also be rejected. The IDEA requires a CSE to include, among others, not less than one regular education teacher of the student if the student is or may be attending a general education environment (20 U.S.C. § 1414[d][1][B][ii]; see 34 C.F.R § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]). The regular education teacher "shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive interventions and supports and other strategies and supplementary aids and services, program modifications, and support for school personnel" (20 U.S.C. § 1414[d][3][C]; 34 C.F.R. § 300.324[a][3]; 8 NYCRR 200.3[d]).

However, in this case, a regular education teacher was not required at the CSE meeting, because the evidence does not show that the CSE considered placing the student in a general education classroom for the 2010-11 school year. In fact, the evidence shows that the DOE recommended a : placement in a community school and the parent's unilateral placement at admits only students with education needs. (Parent’s Ex. N) Neither party in this case argues that the district should have offered the student additional opportunities for mainstreaming or that she should have been placed in a general education setting. Thus, a regular education teacher of the student was not required at the June 2010 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher (34 C.F.R. § 300.321[a][2]; 8 NYCRR 200.3[a][1][ii]; W.T. v. Bd. of Educ., 716 F. Supp. 2d 270, 287-88 [S.D.N.Y. 2010]; M.N. v. New York City Dep't of Educ., Region 9 (Dist. 2), 700 F. Supp. 2d 356, 365-366 [S.D.N.Y. 2010]; Tarlowe, 2008 WL 2736027, at *5-*6; see Application of a Student with a Disability, Appeal No. 11-008; Application of a Student with a Disability, Appeal No. 10-076).

While it is true that the CSE did not have a parent member present and only the mother was preset and not the father, these did not interfere with the discussion of the goals or the final recommendation. This was not an initial IEP for this child. Thus, though the absence of a parent member may have been a technical violation of the regulations, it does not rise to the level of denying the child a FAPE. Nor did the absence of the father. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally 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]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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]).

now complain that the IEP provides for more frequently.

Moreover, the fact that the parent was not given a class profile is not a denial of FAPE. [See, Cerra v. Pawling Central School District, (2d Cir. 2005) 427 F3d 186, at 194.]

In addition, the fact that the child was not reclassified as Dr. would have liked, does not constitute a denial of FAPE. A child is not entitled to receive a particular classification and disagreement between two psychologists does not deny the child FAPE.

The child has been classified as impaired for several years (since 2005-2006) without complaint by the mother. Moreover, Dr. did not deny that the child had issues. Even he could not state with certainty what her classification should be. Although he had a preference for as the proper classification, his opinion was inconclusive. In any event, the services on the child IEP were designed to deal with all of her many deficits including and to address her . It should be noted that in addition to the recommended on the IEP, Dr. testified that the child also receives additional and therapeutic services outside of school which presumably will continue wherever the child goes to school.

In addition to the testimony of Dr. , Mr. testified that he could have implemented all of the academic and goals set forth on the IEP. He stated that within a few days of the beginning of the school year, he does individual assessments of each child to determine their academic levels. Mr. ’s class had only six children in it at the beginning of the 2010-2011 school year and only eight by the end.^[2] He was able to provide each of his students with individual . He stated that his class was highly structured and that there were few disruptions. He is able to redirect the children to task. He had a self-regulatory tool to help children stay on task. He had a chill-out area for those who needed some time alone. The children in his class work on skills every day. He stated that the child could have been given a quiet lunch in the guidance office which addresses Dr. ’s concern that the child may not do well in a large lunchroom setting. The functional levels of the students in his class were similar to the functional levels of the child. Four of the children in his class were classified as , some were and one was .3 Some of them were functioning at the same reading and math levels as the child. The teacher stated that he would have placed the child in a group of with two other children with similar functioning levels. He also stated that he utilizes various strategies and curricula to teach academics and has a smart board in the classroom. He employs shared reading and poetry sessions as well as his own interactive shared writing method. He recognized by reviewing the IEP that the child needed frequent motivation and redirection throughout the day. Nonetheless, he testified that he has been teaching for six years and that he has had success in teaching students with similar deficits and strengths in all areas. In his opinion, could have met the student’s related services needs as well.

Since the DOE has met its burden to show that it provided the child a FAPE, it is not necessary to address the issue of whether is an appropriate placement or whether the equities favor the parent. Suffice it to say however, that the so-called “Connor’s” funding provided to the School by the Association is highly questionable when considering the parent’s claim for monetary relief.4 It is not its prospective nature that is questionable but the fact that the loan taken by from the Association will be forgiven if the parent is unsuccessful. Thus, nobody will be required to cover it. The Headmaster of the School stated that unless the parent ultimately prevails, the School will never have to pay back the $18,000 that was the subject of the loan made by the Association. (July 12, 2011, T. 431) She was not even sure of would take any legal action against the parent to repay the other half of the tuition which was given to her by . That being the case, the DOE should not have to pay that portion of the tuition in any event.

The teacher at the school also stated that most of the children at are .

Ordered that:

The parent’s request for tuition payments either prospectively Connor’s or as reimbursement under Carter are dismissed. Dated: July 22, 2011

_________________________

JUDITH T. KRAMER, ESQ.

Impartial Hearing Officer

JTK:jj

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.

4 Since the parent’s counsel objected to the loan documents coming into evidence because they were not timely disclosed, they are not part of this record.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request with Fax Return Sheet, 12/2/10, 7 pp. B Notice of Rejection, 8/18/10, 4 pp. C Amended Notice of Rejection, 9/15/10, 4 pp. D Due Process Response, 12/9/10, 3 pp. E Psychological Summary Performed by David , Psy.D., 2/1/10 and 2/9/10, 6 pp. F Diagnostic Psychiatric Evaluation Performed by Dr. , Ph.D.,

3/19/10, 3/25/10 and 3/31/10, 7 pp. G Final Notice of Recommendation, 8/11/10, 1 p. H Report by Blythe Carey, 4/2010, 3 pp. I and Progress Report by , 4/2010, 2 pp. J Therapy Progress Note by , 4/1.10, 1 p. K Progress Report, 4/2010, 1 p. L Affidavit of Payment by School, Undated, 1 p. M Mid-year Progress Report, Undated, 10 pp. N IEP, 6/18/10, 15 pp.

DEPARTMENT OF EDUCATION

1 Petitioner’s Complaint, 12/2/10, 4 pp. 2 Department’s Response, 12/9/10, 3 pp. 3 Individualized Education Plan, 6/18/10, 15 pp. 4 Rationale, 6/18/10, 2 pp. 5 NYU Child Study Center Diagnostic Psychiatric Evaluation, 3/2010, 7 pp. 6 NYU Rusk Institute of Rehabilitation Medicine Psychological Summary, 2/2010,

6 pp. 7 Report by and -The School of New York,

4/2010, 3 pp. 8 Progress Report- The School of New York, 4/2010, 1 p. 9 Progress Report and - The School of New York,

4/2010, 2 pp. 10 Therapy Progress Note, 4/1/10, 1 p. 11 Withdrawn 12 Final Notice of Recommendation, 8/11/10, 1 p.

Footnotes

[1] In fact, the child is only receiving once a week at , the mother’s chosen placement, so the mother cannot

[2] It is well-settled that discrepancies between services actually provided by a placement school and those mandated by an IEP do not necessarily violate IDEA. See A.P. v. Woodstock Bd. of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (attached); see also Van Duyn v. Baker Sch. Dist., 502 F.3d 811 (9th Cir. 2007); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341 (5th Cir. 2000). Here the actual class ratio was more favorable than the one provided for in the IEP.