New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student‟s Name:

Date of Birth:

District: 21

Hearing Requested By: Parent

Date of Hearing: April 28, 2011

May 10, 2011

May 19, 2011

Hearing Officer: William J. Wall, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2011

District 75 Representative Dept. of Ed., Unit Coordinator Dept. of Ed.

(via telephone)

Teacher Dept. of Ed.

(via telephone)

Parents

Esq. Attorney — Parents

Esq. Attorney — Parents

Law Student (observing) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 10, 2011

District 75 Representative Dept. of Ed. Guidance Coounselor Dept. of Ed.

(via telephone) Psychological Intern Dept. of Ed.

(via telephone) Family Health Center

Parents

Esq. Attorney — Parents

Esq. Attorney — Parents

Law Student (observing) — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2011

District 75 Representative Dept. of Ed.

Teacher Dept. of Ed.

Parents

Esq. Attorney — Parents

Esq. Attorney — Parents

Law Student (observing) — Parents

Dr. Director of Child and Adolescent — Parents

(via telephone) Services, Health Center

LMSW Director, School — Parents

(via telephone)

PRELIMINARY MATTERS

This case is brought by the parent to obtain prospective funding for the 2011/2012 school year for the student at the School. The hearing was held on 4/28/11, 5/10/11 and 5/19/11. All documents received into evidence are listed at the end of this decision. The Impartial Hearing Request was filed on 2/18/11. There was no formal response to the Request from the District included in the record but the matter proceeded to hearing on April 28, 2011.

THE DISTRICT’S POSITION

The District‟s position, articulated in its opening statement, is that the student was provided with a Free Appropriate Public Education (FAPE) during the year 2010/2011. (Trans. p.13). It contends that the Individualized Education Program (IEP) developed on November 22, 2010 does provide a program which allows the student to make reasonable educational progress including progress in his and development. (Ex.1).The District also contends that certain independent evaluations offered by the parent contain inconsistencies.

THE PARENTS’ POSITION

The parents contend that the Department of Education failed to provide with a FAPE based on the 11/22/10 IEP. As a result, the parent took unilateral action which resulted in an acceptance of the student by the School for the 2011/2012 school year. At the time the request for an impartial was made there was no firm offer of placement at the School. The acceptance was not received until April 27, 2011. (Ex. Q)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep‟t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 927; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055. In a more recent SRO decision (Application of a Child with a Disability, Appeal No. 09-067) there was an articulation of what an appropriate IEP should contain.

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]), establishes annual goals related to those needs (34 C.F.R.

§300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate education services (34 C.F. R. §300.320[a][4]… 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)

To reach that IEP, a Committee on Education (CSE) must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere „trivial advancement‟ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130 (Appeal No. 09067). In this case the CSE developed an IEP on November 22, 2010. (Ex. 1). The IEP in this case was developed not at a CSE meeting but rather at an Educational Planning Conference. In this case the EPC was appropriately staffed and there was no obligation to conduct a CSE meeting for this student at this time. However, the Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student‟s educational status in preparation for the Review whether it be carried out by means of a CSE review or a CPE. 8 NYCRR 200.4. Procedures for referral, evaluation, individualized education program (IEP) development, placement and review is the section that specifies the procedures to be followed. It states

(4) A committee on education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other ist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for education. The results of any reevaluations must be addressed by the committee on education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on education meetings for the student.

Exhibit O is the Request for the Impartial Hearing. After a brief description of the student as a year old grade student at , the letter notes that the student was recently diagnosed with Pervasive Developmental Disorder-Not otherwise specified, . The Request then points out that is a Disorder on the autism spectrum.

The student classification after the 11/22/11 IEP remained the same as the prior IEP. He was classified as “other health impaired”. He continued to be assigned to be a assigned to a class in a school. He was assigned to a class with related services. (Ex. 1. p.1) The request alleges “that the CSE Review team did not make any change to ‟s placement, program or disability status. The November IEP recommends only modest changes to ‟s educational experience or very vague directions for teachers and staff to implement.”

The request goes on to describe his current placement as “insufficient” and requests wholesale changes.

It then articulates several failures with ‟s program including a statement “that his day to day is severely disrupted by frequent and ”. It then goes on to quote testing which indicates how far behind the student is in various areas despite his average intelligence. It closes with the demand for prospective funding in a non-public school if a seat is found in an appropriate school. The obligations of a school district with respect to specific classifications and placements are clear. There are no specific laws or regulations dictating what is an appropriate classification or placement for a student in education.

IDEA and the federal and state regulations are silent on the obligations of the CSE to include specific placements or programs. The applicable federal law that determines what must be included in an IEP states in pertinent part at 20 U.S.C. § 1414 (d)(1)(A)(i)(IV)

(IV) a statement of the education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child —

(aa) to advance appropriately toward attaining the annual goals;

(bb) to be involved in and make progress in the general education curriculum in accordance with subclause (I) and to participate in extracurricular and other nonacademic activities; and

(cc) to be educated and participate with other children with disabilities and nondisabled children in the activities described in this subparagraph;

The federal and state regulations simply reiterate that section of the law. The state regulation is found at 200.4(a)(v)(a);

(a) The IEP shall indicate the recommended education program and services as defined in section 200.1(qq) and 200.1(ww) of this Part from the options set forth in section 200.6 of this Part or, for preschool students from those options set forth in section 200.16(i) of this Part, and the supplementary aids and services as defined in section 200.1(bbb) of this Part that will be provided for the student:

(ww) reads in pertinent part:

(ww) education means designed individualized or group instruction or services or programs, as defined in subdivision 2 of section 4401 of the Education Law, and transportation, provided at no cost to the parent, to meet the unique needs of students with disabilities.

(1) Such instruction includes but is not limited to that conducted in classrooms, homes, hospitals, institutions and in other settings.

(2) Such instruction includes designed instruction in education, including adapted education.

(3) For purposes of this definition:

(i) The individual needs of a student shall be determined by a committee on education in accordance with the provisions of section 200.4 of this Part upon consideration of the present levels of performance and expected outcomes of the student. Such individual-need determinations shall provide the basis for written annual goals, direction for the provision of appropriate educational programs and services (emphasis added)and development of an individualized education program for the student.

None of the referenced sections mandate specific education programs, only that such programs be created and made available to classified students in an appropriate manner. The district‟s evidence and testimony indicate that the student had a classification and a program that school officials testified was meeting his need for educational progress and to some extent this was borne out by testing which showed certain progress in reading and over the years.

However, that is not the end of the inquiry as to the adequacy of the IEP and the appropriateness of the district‟s program to address the deficits of the student.

Various courts have articulated the obligations of school districts under IDEA. A comprehensive statement is found in Walczak. Walczak V. Florida Union Free School District, 142 F.3d 119 (2nd Cir. 1998) at p.130.

[75] IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP. The

Supreme Court, however, has specifically rejected the contention that the "`appropriate' education" mandated by IDEA requires states to "maximize the potential of handicapped children." 458 U.S. at 196 n. 21, 189. The purpose of the Act was "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Id. at 192; accord Lunceford v. District of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984)

(Ruth Bader Ginsburg, J.) (because public "resources are not infinite," federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child"). Plainly, however, the door of public education must be opened for a disabled child in a "meaningful" way. Board of Educ. v. Rowley, 458 U.S. at 192. This is not done if an IEP affords only "trivial" educational benefits. Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (quoting Polk v. Central Susquehanna Intermediate Unit 16, 853 F.2d 171, 183 (3d Cir. 1988). An appropriate public education under IDEA is one that is "likely to produce progress, not regression." Cypress-Fairbanks Indep. Sch.

Dist. v. Michael F., 118 F.3d 245, 248 (3d Cir. 1997) (internal citation omitted), cert. denied, 118 S.Ct. 690 (1998).

The court then went on to discuss the nature of an independent review that does not meddle in state educational methodology. Within that discussion it states what it considers to be objective evidence in determining whether or not the District has met it obligation to provide “meaningful educational opportunity”.

[78] To conduct an IEP review that was "independent" without "impermissibly meddling in state educational methodology," Mrs.

B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207,)] For judicial review of the IEP challenged in this case [to be both "independent" and "deferential," the district court was required to examine the administrative record, as well as any new submissions by the parties, with particular attention to [examine the record before it with particular attention to any "objective evidence" of whether B.W. would progress or regress if educated in a day program, id.] whether a preponderance of the objective evidence indicates that B.W. has made progress or regressed in the BOCES day program. This focus derives from the distinction drawn by the Supreme Court between a federal court's proper examination of "objective evidence of progress" and its "impermissible meddling in state educational methodology." Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121 (citing Board of Educ. v. Rowley, 458 U.S. at 203, 207). A review of objective evidence is easiest, of course, when a disabled child is in a mainstream class. In such circumstances, the attainment of passing grades and regular advancement from grade to grade are generally accepted indicators of satisfactory progress. See Board of Educ. v. Rowley, 458 U.S.

at 207 n. 28 (deaf student's ability to perform better than average child in class and her easy advancement from grade to grade indicated that she was receiving an appropriate education despite School District's failure to provide her with a sign interpreter). Nevertheless, this court has looked to test scores and similar objective criteria even in cases where a disabled child has been educated in self-contained education classes. See Mrs. B. v. Milford Bd. of Educ., 103 F.3d at 1121. In such circumstances, the record must, of course, "be viewed in light of the limitations imposed by the child's disability." Id.

While this standard is articulated with respect to a court‟s review of administrative decisions, it is very similar to the standard set forth for an Impartial Hearing Officer in 8 NYCRR 200.5. Due process procedures.

(v) … The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record. The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision (k) of this section. The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.

Guided by the case law and regulations, I reviewed the testimony and documentary evidence. The 11/22/10 IEP indicates that appropriate committee members participated in the meeting and is written with goals that are specific and measurable. The classification contained in the IEP is the same one that was listed in the earlier IEP “Other Health Impaired”. However, this recommendation remained the same despite a new Psychological Evaluation which indicated two disabilities ( and Disorder with and Mood) that really should have brought about a discussion of the “Other Health Impaired” classification. Even if the committee did not wish to change the classification the diagnoses certainly should have led to consideration of a different placement. There is no documentary evidence that serious discussion of either the classification or the placement took place at the CPE. There is no documentary evidence that serious discussion of either the classification or the placement took place at the CPE. However, there was testimony that the parent and her representatives made the case for a change of classification and placement but were rejected by the DOE representatives at the meeting.

The District began with the testimony of , the Unit Coordinator, who was the administrator responsible for the day to day operations of the facility if the principal or the AP were not present. Those administrators had offices in other locations of the school. Her testimony indicated that neither she nor other members of the Committee had individual copies of the Psychological Evaluation nor the opportunity to study it prior to the IEP meeting. It was Ms. ‟s testimony that she believed the student was making meaningful progress academically and . However, she also acknowledged that the student had significant outbursts in the winter of 2010 which were not explained after a period of growth.

She did not comment on any or that was mentioned by the parent, the parent‟s witnesses and certain school witnesses. Her comments on the Independent Psychological Evaluation focused on its availability to the members of the committee. She did indicate that the School Psychologist did have the report and read it. However, although delivered to the school by the parent, it was not distributed to the members of the committee until the day of the meeting and even then they were not given the opportunity to study it.

The next witness, the classroom teacher did identify the outbursts and testified that the only reason the student gave for the outbursts were his hatred of the school and everyone in it (Trans. p.79.) This is in sharp contrast to his behavior when he is not upset. She did confirm the outbreaks occurred once or twice a week for a period of about three months.

She also testified that the student was on the higher end of the academic spectrum in the class. She characterized as a boy with high and fragile when things change or he perceived himself to be behind in his school work. Nevertheless, she believed the program and the placement were meeting the student‟s needs.

The next witness, the School Psychologist, testified that he did participate in the IEP meeting. He felt that the diagnosis was not as important as the disorder. His testimony was consistent with his report. His report (Ex. K) provided the scores reported in the independent psychological evaluation and his report went on to characterize the student as making progress in all of academic, and areas. The report made no comment on the outbursts which other witnesses recognized as debilitating. He did acknowledge their existence and significance during cross examination. I found the report itself to be fairly superficial and the testimony to be rather defensive. In the report he did not address the impact of the new diagnoses although he was in possession of the report at the time he wrote his own report. While he testified to what he believed to be the positive aspects of the child‟s educational experience without acknowledging any or or the difficulties that the student endured during his placement in school year 2010/2011.

Finally, the School Worker testified about the student. She confirmed she did not have the psychological evaluation for the IEP meeting.

During the District‟s testimony, I felt that there was a strong investment in justifying the actions they had taken after the 11/22/10 IEP without giving consideration to the information developed by the Psychologist and the presentations made by the parent and others at the IEP meeting. I found the district witnesses downplayed the seriousness and intensity of the student‟s outbreaks. Nor do I think they recognized the student‟s need for a smaller more structured environment that would allow him to make meaningful academic and progress. There is no question that the student made progress in the classroom setting. However, the testimony and the evidence did not support a meaningful educational experience where the student was making more than trivial progress when a more appropriate placement would result in much more significant progress both academically and .

When we turn to the parent‟s case we find significant testimony from Dr.

, who supervised the psychological testing and knew the student from his treatment at the Family Health Center and , LMSW, the person in charge of admissions at The School Dr. made it clear that should not have to have a BIP that states he needs to take responsibility for his own actions when he is bullied or teased. In fact she testified that would not be able to function academically or in an . environment in a District 75 school because he would be unable to protect himself from constant aggressive . (Tr. 249, 250.) She clearly makes the point that it is ‟s combination of his size, his disabilities and the structure of a class in district 75.

Based on all the evidence and testimony, I find that the District did not offer the student FAPE after the 11/22/2010 IEP meeting.

Turning to the testimony of Ms. , it is clear that he School will be an appropriate placement for under the criteria established by the courts for the second prong of the Burlington/Carter test.

The second prong of Burlington focuses on the appropriateness of the placement chosen by the parent for the student. “In a case where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” (Burlington)

The Carter case refined the court‟s thinking and it determined that strict compliance with the requirements of the state‟s education agency were not necessary for a unilateral private placement to be “appropriate”.

Nor do we believe that reimbursement is necessarily barred by a private school's failure to meet state education standards. Trident's deficiencies, according to the school district, were that it employed at least two faculty members who were not state-certified, and that it did not develop IEPs. As we have noted, however, the 1401(a)(18) requirements - including the requirement that the school meet the standards of the state educational agency, 1401(a)(18)(B) - do not apply to private parental placements. Indeed, the school district's emphasis on state standards is somewhat ironic. As the Court of Appeals noted, "it hardly seems consistent with the Act's goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child's needs in the first place." 950 F.2d, at 164. Accordingly, we disagree with the Second Circuit's theory that "a parent may not obtain reimbursement for a unilateral placement if that placement was in a school that was not on [the State's] approved list of private" schools. Tucker, 873 F.2d, at 568 (internal quotation marks omitted). Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (Carter )

The burden to establish York as an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C. § 1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect")).

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct.

3034, it must provide such children with "meaningful access" to education, Walczak,142 F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every service necessary to maximize their child's potential. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation marks omitted). They need only demonstrate that the placement provides "educational instruction designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley,458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006).

The School is a state approved non-public school which has significant experience in identifying students that will benefit from their program. Ms. made it quite clear (Trans. 291.) that would almost certainly benefit from their program and they had an appropriate classroom for him. Prong II of Burlington is satisfied by the placement of the student at The School.

The final prong of Burlington deals with the equities. Did the parent act in good faith and cooperate with the District. The entire transcript and all the evidence confirms that Mrs. acted in good faith in all her dealings with the District; she made the student available for testing and interviews. Prong III clearly favors the parent.

Therefore I conclude that the parent is entitled to prospective tuition payments to the School for the academic year 2010/2011, subject only to providing the necessary financial evidence that would show that it would be an undue burden on her to make tuition payments and await reimbursement.

ORDER

The Department of Education is ordered to pay the tuition and fees of the School on a prospective basis for the student, , for the academic year 2010/2011. The parent is ordered to provide the necessary financial information that will establish that the tuition payment would be an undue burden on the parent if she had to pay it in advance and await reimbursement. In addition, transportation is to be provided. Dated: August 11, 2011

` WILLIAM J. WALL, ESQ.

Impartial Hearing Officer WJW:gc

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.

DOCUMENTS RECEIVED INTO EVIDENCE ON APRIL 28, 2011

# DATE DESCRIPTION # OF PAGES

DOE

1. 11/22/10 IEP 12

2. 2/18/11 Impartial Hearing Request 3

3. 4/11/11 Class Profile 1

4. 11/16/10 Psycho-educational Case Review 3

5. Various History Update 3

6. 11/16/10 Classroom Observation 2

7. 1/5/11 FBA/BIP 3

8. 11/9/10 Report Card 1

9. 11/17/10 Guidance Counselor Report 1

10. 2/15/11 Therapy Report 1

11. 2/15/11 List of Parent Trainings 1

12. Undated Classroom Teacher Observation 1

13. 2/18/11 - Progress Report 2

14. 11/1/10 BIP 1

15. 11/6/10 Fax from 1

PARENT

A. 4/9/08 2007/2008 IEP 15

B. 11/25/08 Classroom Observation 2

C. 11/25/08 Psychological Evaluation 7

D. 11/25/08 History Update 4

E. 12/5/08 2008/2009 IEP 15

F. 10/19/09 2009/2010 IEP 15

G. 5/13/10 Letter from Dr. 1

H. 5/22/10 Initial Treatment Plan 22

I. 6/25/10 Maimonides Diagnosis 4

J. 9/30/10 Psychological Evaluation 13

K. 11/16/10 Psycho-educational Case Review 3

L. 11/16/10 Classroom Observation 2

M. 11/16/10 History Update 3

N. 11/22/10 2010/2011 IEP 11

O. 2/18/11 Amended Request for Impartial Hearing 3

P. 1/25/11 Promotion in Doubt Letter 1

Q. 4/27/11 Acceptance Letter- School 1