Impartial Hearing Decision

THE UNIVERSITY OF THE STATE OF NEW YORK

THE STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE APPLICATION OF XX

BY HIS PARENTS, and Ms. XX. FOR A DUE PROCESS

IMPARTIAL HEARING,

Petitioner,

-against-

XX SCHOOL DISTRICT,

Respondent. X

HEARING OFFICER’S FINDINGS OF FACT AND DECISION

Joel D. Ziev, Ed.D.

Impartial Hearing Officer July 22, 2011

HEARING OFFICER’S FINDINGS OF FACT AND DECISION

Background

At the request of X. and Ms. X. (“Parents”), this impartial hearing (“Hearing”) was held to determine whether the Central School District (the “District”) must reimburse them the cost of tuition for having unilaterally placed (hereinafter referred to as the “Child”, or the “Student”) at the XXXX (XXX ) Program for the 2010-2011 school year. The XXXXXXX Program is located in the XXXXXX, which is in turn located within the boundaries of the District.

In a letter dated February 9, 2011, the Parents submitted a request for this Hearing to the District on behalf of their son. On February 10, 2011, the District appointed the Impartial Hearing Officer (“IHO”).

The Hearing commenced on April 4, 2011 in the District’s Administration Building and continued on April 12, 14, May 9 and concluded on May 18, 2011. XXXXXX represented the District, and the Parents were represented by YYYY.

The transcript of the Hearing consists of 969 pages (hereinafter cited as “Tr.” followed by a page number). Eleven witnesses’ testified, five for the District and six for the Parents. Thirty two documents were admitted into evidence: 22 by the District and 10 by the Parents. (Hereinafter respectively referred to as “SD-#”; “P-#”).

During the course of the Hearing, the IHO granted time extensions to both sides as a result of scheduling conflicts. These extensions are noted in the record. Post-hearing briefs were received on July 8, and it was agreed that the decision in this matter would be rendered by July 22, 2011.

ISSUES

The issues involved in this matter, in which the Parents unilaterally place their Child with a disability in a non-public school and then seek funding from their District are based on the factors enumerated by the Supreme Court in School Comm. of Town of Burlington, Mass. v. Department of Educ. of Mass., 471 U.S. 359, 370, 374 (1985). (1): The District must show that it offered a Free and Appropriate Public Education (“FAPE”) to the Child. FAPE is offered when (a) the board of education complies with the procedural requirements set forth in the Individuals with Disabilities Education Act (“IDEA”), and (b) the Individual Education Plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits from the program and placement recommended by the District’s CSE. It also must show that the placement was in an environment the least restrictive for him. (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). (2) The Parents must show that the unilateral placement of their son at the XXXXXXX Program was appropriate; and (3) do equitable considerations support reimbursing them for their expenses related to this placement. (“Burlington factors”).^[1]

FINDINGS OF FACT

The Student is a year old child (D.O.B. XXXXXX). The family resides within the XXXXX School District. The Student has been classified by XXX as XXXX (P-I, SD-7). More specifically, the Child has XXXXX, (SD-5 at 4; Tr. at 323, 662-63, 824), and is XXXXXXX, XXX, and has an XXXX (Tr. at 400-402, 771, 772). The Child is on prescribed medication including XXXXXX (SD-7, pg 1). His classification is not in dispute

The 2009-2010 school year.^[2] On August 11, 2009 the District’s Subcommittee to their CSE (“Sub-CSE”) met and recommended that the Child be placed in a District’s self-contained special education class for the 2009 - 2010 school year. The Committee’s recommendation was for an 8-1+2 class with relate services in the District’s XXXXXXX School. The report of this meeting indicates that the Child would receive assistance from a 1-1 aide, and Parent Training. The IEP developed from this CSE meeting calls for a reevaluation and annual review in June 2010 (SD-1). The Comments section of this IEP includes that the Parents “actively participated in the meeting providing feedback.” The Parents “were in agreement with class size but rejected the composition of the class. The Parents stated that their Child would not be returning the private day school in where they had parentally placed him for the 2008-2009 school year. They advised that they were considering a XXXXXX in the XXXXXXXXXXXXXXX School District. (id. at pg 5).

In September 2009, the Parents unilaterally enrolled their Child in the XXXXXXX Program for the 2009-2010 school year. This program was established by the XXXXX for the start of the 2009-2010 school year. XXXXXXX was at that time located within a XXXX in the XXXXX School District (“XXXXX”). XXXXX was therefore considered the Child’s District of Location and as such would be responsible upon written request of the Parents for additional special education services and Child Find activities for private schools located within that District Pursuant to New York State Education Law §3602c.3

In September 2010 the XXXXXXX Program moved from XXXXX onto the facilities of the XXXXXXXXX in XXX XXXXX School District. The Student continues to be enrolled in XXXXXXX Program for the 2010-2011 school year.

Preparation for the 2010-2011 School Year. Dr. XXXXXXX, the District’s supervisor of case management and nonpublic schools testified that the Child was not the District’s concern while he was attending a program outside of the XXXXXXX District. It would have been up to XXXXXXXX to have done CSE review at that time, [during the 2009-2010 school year] and to provide services (Tr. 209). Dr. XXXXX stated that “because there was no BEDS^[4] number [for XXXXXXX] and they were renting space from [another XXXX] that they were not considered to be XXXXX responsibility”…. “At that point we had a quandary

Pursuant to Education Law § 3602-c, boards of education of all school districts of the State shall furnish services to students who are residents of this State and who attend nonpublic schools located in such school districts, upon the timely written request of the parent or person in parental relation of any such student. For the purpose of obtaining education for students with disabilities such request shall be reviewed by the CSE of the school district of location, which shall develop an IESP for the student based on the student's individual needs (Educ. Law §§ 3602-c[2][a], [2][b][1]). A school district of location recovers from the school district of residence the evaluation costs, CSE administrative costs, and special education services costs incurred (8 NYCRR 177.2; see also "Guidance on Reimbursement Claims for the Cost of Providing Special Education Services to Parentally-Placed Nonresident Students Pursuant to Education Law Section 3602-c" located at http://www.p12.nysed.gov/specialed/publications/policy/reimbursement608.htm).

because they were not going to school in our District, but the District where they were going to were not acknowledging them.” (Tr. 210). ^[5]

She stated that she had many discussions with the Parents during that time on how best to suit the Child’s needs (id.). The Father testified that on May 10, 2010 he received approval from the XXXXXXXXXXX, located within the District, regarding XXXXXXX leasing space in that facility (Tr. 498).^[6] He then had several telephone contacts with the District advising that the XXXXXXX Program would be moving into the District and with the District’s transportation office regarding setting transportation for his son to the XXXXXXX Program in the XXXXXXX. He stated that he spoke with Mr. XXXX. a member of the District’s board, Dr. XXXXX, head of the District’s office of funded programs, and Ms. XXX regarding the move to the District (Tr. 510-512, 517, 519). The Father also requested to be put on the District’s Email list for non-public schools within the district. He stated that this was done immediately and that he started to receive Emails (Tr. 518). One of these Emails was from the District regarding XXXXXXX’s application for federal funds Title I support ( P-C).

Dr. XXXXX recalled that she “had several conversations throughout the school year in regards to trying to figure out what we can do to service the children [in the XXXXXXX Program]” (Tr. 248). Dr. XXXXX said she met with the Parents on or about June 23, 2010 (Tr. 248, 407, 520). She recalled that the Father mentioned that there was a possibility that they [XXXXXXX] might actually be coming back into the [District] into one of the here” (Tr. 249). In this June meeting she urged that Parents to get a BEDS number for their program. ^[7]

The Father testified that the reason for the June meeting was to ask how to obtain district information on the prospective students [for XXXXXXX]… and that they were not getting any notification of any scheduled evaluations or the CSE meetings and wanted to find out why that was (Tr. 521). The Father stated that Dr. XXXXX responded that there were two things… “The first thing was they will not do the CSE meeting until we’re [XXX] physically back in the district, and two, we don’t have staff in the summer, we can get some people together to do the evaluations but they’re not going to be of such great quality and as [the Child’s] Parents you would want to wait until September… we’re going to get it done very quickly and get it started right away” (Tr. 521). Dr. XXXX testified that during the June meeting the Parents did also mention by name other children that they had concerns about and also wanted to know about CSE meetings and annual reviews for them (Tr. 249). She told the Parents, “As soon as I know for sure that you are gonna be in the district, I’ll do whatever we need to do to get an IEP and a CSE meeting.” (Tr. 250). Dr. XXX confirmed that there would be less staff over the summer but did not recall saying that it would be more difficult or that it would not be done (id.).

The Father testified that he received a BEDS number in February 2010 for the 2009-2010 school year and was given another BEDS number on July 12, 2010 for the District.^[8] He explained that the BEDS number was specific to the District and that the number he received in July was specific for East XXXXX(Tr. 534).

On August 10, 2010 the Father, writing in his capacity as a director of the XX Program, sent an Email to Dr. XXXX, District Director of Special Services, to “bring to your attention that two children in our program [XXXXXX] located this year at the XXXXX, have not yet had their annual review or CSE Committee meeting.” He added that, “We are enrolling additional children and may be providing other names for your consideration as well” (P-G). One of the children mentioned in this Email was his son. Also via Email, Dr. XXXX wrote the response to the Child’s Father’s Email with a copy to Dr. XXXX. This response stated that, “the two students were not reviewed because the school was located last year in the XXXXX School District.” She explained that it was XXXXX’s responsibility to review these children as they were the District of Location. Once the school year begins and your school returns to XXX , I will be happy to do an Annual Review for these students.”(id.)(Tr. 254). (Emphasis added). Dr. XXXXX testified that, “once we knew that the school would be moving here [to the District]…these were resident children going to school in our District. It would absolutely be our responsibility to offer and to provide FAPE” (Tr. 251). During the hearing, Dr. XXXXX was asked to explain the difference in her Email and her testimony on when she would start the review process for a child coming into the District. She explained that, “My position was only as a school psychologist. I was not a administrator in any way and I needed to take my direct orders,…from the administrators. The information that I was probably given was that I needed to wait, and I did what I was told.” She could not recall who told her (Tr. 255). She stated that what her Email was really asking for was official notification or notification somehow, from the Parents that the school indeed is going to be at XXXXXXXXX [in the District] (Tr. 257-258). She stated that she had spoken with the Parents on numerous occasions and that they did tell her that they were working on it [having XXXXX move to within the District] but she was not told that it was going to take place and was officially put in place (Tr. 261). Dr. XXXXX testified that, “I just really wanted to try to do whatever we could to help these kids because it looked like they were caught in a notch where that were just not getting what they needed” (Tr. 289).

The record indicates that District personnel were aware of the Parents’ plans to relocate their XXXXXXX Program to a facility located within the District and that their Child would also be returning to the District. The District did provide the Parents with the transportation schedule for their Child to the local XXXXXXXXXXXXX and did go forward with scheduling evaluations in preparation for a CSE meeting. The Parents provided no indication that they were in any way interested in having their Child attend a District program.

On August 30, 2010, the Parent signed a form sent by the District giving their consent for Annual Reevaluation (SD-4). There is no indication when this consent form was sent to the Parents but the Educational evaluation was done on August 26, 2010, four days before the Parents signed the consent form (SD-6).

Findings of Fact and Conclusions of Law

REGARDING WHETHER, ON THE FACTS PRESENTED, THE DISTRICT

SHOULD BE REQUIRED TO REIMBURSE THE PARENT FOR THEIR

UNILATERAL PLACEMENT OF THEIR SON.

An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services. The IEP goals must be reasonably calculated to enable the child to receive meaningful educational benefits. (Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176, 192 (1982)).

The recommended program should be in the least restrictive environment for the child. (34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1); 8 NYCRR 200.1(cc)). See also; (Application of a Child with a Disability, Appeal No. 93-12; Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Disability, Appeal No. 02-032; Application of a Child with a Disability, Appeal No. 03-095).

It is also the school district’s burden to show that it complied with the procedural requirements of the Individuals with Disabilities Education Act. (Rowley, 458 U.S. at 206- 07; Application of a Child with a Disability, Appeal No. 02-025).

The Process State and Federal regulations state that every child with a disability must have a valid IEP in effect at the beginning of each school year, see 34 C.F.R. § 300.323(a); 8 NYCRR 200.4(e)(1)(ii); 20 U.S.C. § 1414(d)(2)(A); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 (2d Cir. 2005), and that the CSE must review each child’s educational program at least once each year to determine its adequacy and to recommend an educational program for the next school year. See 34 C.F.R. § 300.324(b)(1); 8 NYCRR 200.4(f); see also 20 U.S.C. § 1414(d)(4)(A)(i); New York Education Law § 4402(1)(b)(2). In this instant matter the CSE meeting was not scheduled until after the start of the 2010- 2011 school year. The letter inviting the Parents to a CSE meeting is dated September 15, 2010, and the meeting was scheduled for September 28, 2010. This letter lists the purpose of this meeting as, “Initial Eligibility Determination Meeting” (SD-22).

The Parents’ requested that the date of the meeting be changed. By letter dated October 7, 2010 from XXXX ,9 the District’s CSE Chairperson, the District agreed to this change and it was rescheduled for October 19, 2010. This second letter indicated that the purpose of the meeting was for an “Annual Review” (SD-23).

On October 19, 2010 the District convened what is referred to in the IESP and IEP as a Subcommittee on Special Education. (SD-7, P-L)

Dr. XXXXX’s September 15 and October 7, 2010 letters to the Parents invite them to participate in a Committee on Special Education meeting. There is no mention of a Sub-CSE meeting. The Districts letter inviting the Parents to this meeting includes a list of people who were expected to attend the meeting. These are: Chairperson, Psychologist, Special Education Teacher, and Regular Education Teacher. The purpose for this meeting is listed as “Initial Eligibility Determination meeting” (SD-22). This letter also states, “Please let us know, in writing, if you do not wish to have the attendance and participation of an additional parent member at the meeting.” Sub-CSE meetings do not require this action. The record is not clear on why the District began referring to it as a Sub-CSE meeting rather than a CSE meeting.

The regulations do provide for the use of subcommittees but this authority is limited to Districts with a general population of greater than 125,000. East XXXXX lacked authority to convene a subcommittee as it has less than 125,000 inhabitants. (8 NYCRR 200.3(c); (Tr. 946-47); National Center for Education Statistics, 2009 America Community Survey (www.nces.ed.gov).)

I find the District’s use of a Sub-CSE rather then a CSE is not appropriate and in violation of the NYS Regulations 8 NYCRR 200.3(c) I note that all of the letters to the Parents are from the Chair of the CSE Ms. XXXXX. (SD-22,23,24 and 25) These documents are not signed by Ms. XXXXX but her signature is typed in. There is no indication that Ms. XXXXX supervises the preparation of these documents. . Participants in the October meeting. On October 19, 2010 the Sub-CSE met to recommend an appropriate placement for the Student (P-I, SD-7). The Regulations of the New York State Commissioner of Education (the “Regulations”) list the required membership in a CSE meeting. (8 NYCRR 200.3 (a)(1)(i-x)). (34 C.F.R. § 300.343). These include:

(i) the parents or persons in parental relationship to the student; (ii) at least one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (iii) one special education teacher of the student, or, if appropriate, a special education provider of the student; (iv) a school psychologist;

(v) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general curriculum and the availability of resources of the school district, provided that an individual who meets these qualifications may also be the same individual appointed as the special education teacher or the special education provider of the student or the school psychologist;

(vi) an individual who can interpret the instructional implications of evaluation results. Such individual may also be the individual appointed as the regular education teacher, the special education teacher or special education provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student when such member is determined by the school district to have the knowledge and expertise to fulfill this role on the committee; (vii) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (ix) other persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual to be a member of the committee on special education; and

(x) if appropriate, the student. The October 19, 2010 meeting included the following participants:

a) K. XXXXX, CSE Chairperson;

b) C. XXXXX, a private psychologist working with the private placement;

c) L. XXXXX, Special Education Teacher;

d) A. XXXX, General Education Teacher; e) Father f) Mother

(P-I, SD-7 ).

A review of those who participated in this meeting reveals that no one representing the District at this CSE meeting personally knew the Child. The chairperson, Ms. XXXXX, the general education teacher, Ms. XXXXX, and the , had never even met him; Dr. XXXXX, is listed at this meeting as a special education teacher. During the hearing she identified her title with the District as the Supervisor of Case Management and Nonpublic School Services, and before that she served the District as a school psychologist (Tr. 198). Dr. XXXXX had briefly seen the Child about three years before and saw him again briefly at the XXXXXXX Program (Tr. 199-200). Dr. XXXXX had neither taught nor evaluated this Child (Tr. 403). Based on her testimony it is clear that she is not serving as a special education teacher and listing her as one is not appropriate. Thus, the District people who presumably knew about the special education options available to the Child within the District – had no first-hand knowledge, whatsoever, of his social/emotional, cognitive and academic needs. In addition although the Child has severely delayed language skills, (SD-5 at 4), there was no Speech and Language therapist present at the meeting (Tr. 267-68, 372). In that regard, Dr. XXXXX testified that the presence of a Speech and Language therapist would have been “optimal” (Tr. 268). Dr. XXXXX stated that the District’s Supervisor of Speech and Language services was in the building, right down the hall. “We could have called her in, should something come up that would have required extra intervention or more clarification or understanding.” (id). It was Dr. XXXXX, who is not a speech therapist, who determined the configuration of his services (Tr. 293-94).

The Psychologist listed as a participant at this meeting is Dr. XXXXX. She testified via telephone. Dr. XXXXX has her Doctorate in Clinical Child psychology (Tr. 602). She was employed by the XXXXXXX Program as a consulting part time psychologist from its inception in September 2009 and worked with the children and teachers there through November 2010 (Tr. 608). She left the program due to personal health concerns. She testified that her role at this meeting was “as a psychologist that knows [the Child] in terms of his emotional, social and behavioral functioning.” This meeting was prior to her doing any testing on the Child. (Tr. 632). 10

This CSE did not include any of the Child’s teachers from the XXXXXXX Program that could have assisted in the development of this IEP.

The IEP does note under special alerts that the Child is taking medications on a routine basis. The CSE did not have available to them any medical report of the Child’s physical condition or the use for these medications (SD-7, P- I). Although not required, the participation of a physician in this CSE meeting may have been very helpful to at least explain the impact of these medications on this Child.

The CSE did not include an additional parent member called for in the regulations. This member is not required only if the parents of the student request that the additional parent member not participate. (8NYCRR 200.3)

The record includes a report of Dr. XXXX’s testing. It took place on February 2011. (P-M) I find that this meeting did not include all of the required members called for in the Regulations. This includes an appropriate special education teacher who may have worked with the Child during the 2010-2011 school year, a School District psychologist, a speech and language therapist, a physician and additional parent member.

The Evaluations Even if the CSE had been properly constituted, the evaluations used by the CSE were deficient. The issue is whether the CSE on October 19, 2010 had the data, reports and other information sufficient to determine the Student’s individual needs, educational progress and achievement, ability to participate in regular instructional programs, and continuing eligibility for special education. The CSE must first accurately assess the child’s behavior, drawing upon a variety of sources, including tests, parent and teacher input and adaptive behavior, and ensure that the information obtained is documented and carefully considered. (34 C.F.R. § 300.535[a][1], [a][2]).

Determination of present level of performance The regulations require that prior to the CSE meeting, the CSE or other professionals must review the evaluation data that is available on a child, including evaluations and information provided by the parents of the student, current classroom-based assessments and observations, and observations by teachers and related services providers. On the basis of that review, along with input from the child’s parents, they must then identify what additional data is needed in preparation for the meeting.

The record reveals that there was no such review prior to the October 19, 2010 CSE as called for in the regulations (8 NYCRR 200.4(b)(5)(i-iv).

The Regulations require that the CSE shall arrange for an appropriate re-evaluation of each student with a disability if conditions warrant a re-evaluation, or if the student's parent or teacher requests a re-evaluation, but at least once every three years by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student’s disability. In accordance with paragraph (5) of this subdivision, the re-evaluation 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 special education. The results of any re-evaluation must be addressed by the CSE in reviewing and, as appropriate, revising the student’s IEP. (8 NYCRR 200.4(b)(4)).

In so doing, the CSE has an affirmative obligation to administer tests and other evaluation materials as needed to ascertain whether any additional modifications to the IEP are necessary in order for the child to participate in the general curriculum (8NYCRR 200.4[b][5][iii]), including using instruments that may assess the contribution of behavioral factors, where appropriate. (20 U.S.C. § 1414[b][2][C]; 34 C.F.R. § 300.532[i]). These tests must be tailored to assess the particular area of need of the child, not merely provide a general intelligence quotient. (34 C.F.R. § 300.532[d], 34 C.F.R. § 300.536[b]; 8 NYCRR 200.4[b][6][iii]). Thus, a CSE must accurately identify a student’s needs as a first step when amending his or her IEP. The results of these evaluations have to be addressed by the CSE in reviewing and, where appropriate, revising the child’s IEP. (8 NYCRR 200.4(b)(4)(5)).

The evaluations and reports that were available to the October 19, 2010 CSE as listed in the IEP include the following:

• Evaluation – 9/22/2010 (SD-5)

• Evaluation – 8/30/2010

• Educational Evaluation – 8/26/2010 (SD-6)

• Evaluation – 6/04/2009 - prepared by (SD-15)

• A Social History updates – 5/27/09 . (SD-7, pg.6)

The record of this hearing does not include a report of the Evaluation, or a copy of the Social history update that were noted in the IEP. There is also no observation of the Child in his current educational placement, a report of a physical examination or an updated evaluation or any written determination that none was required.

The Regulations provide that, “if a determination that additional data is not needed, the school district must notify the parents of that determination and the reasons for it and of the right of the parents to request an assessment to determine whether, for purposes of services under this Part, the student continues to be a student with a disability. The school district is not required to conduct the assessment unless requested to do so by the student’s parents.” (8 NYCRR 200.4(b)(4)and (5)(iv)). The record includes no notification to the Parents regarding this issue.

The report was prepared by Ms. XXXX M.S, a in the District. Ms. XXXXX was not a participant in the October Sub- CSE meeting. Her report is dated September 27, 2010. It does appear that some of this testing was completed in the spring of 2010. Ms. XXXXX’s summary report indicate that the Student’s, “overall language skills are XXX” He tested XXX age equivalent levels in every area (SD-5, pg 4). Ms. XXXXX’s report provides no specific recommendations. It does state that, “recommendation for service will be made, as deemed necessary, by the Committee of Special Education”(id.) There was no listed as a participant in this CSE meeting. Ms. XXXXX did not testify at this hearing. Ms.XXXXX, the Child’s current provider did testify. She started working with the Child at the XXXX in late September or early October (Tr. 320). On cross examination she changed her testimony and stated that she began working with the Child in December [2010] (Tr. 351). Ms. XXXX reviewed Ms. XXXXX’s and agreed that based on her knowledge of that Child that her findings on the CELF test, that he has a XXXXXXXX in expressive and receptive language, are accurate. She also agreed with the report that his speech and articulation appeared to be within normal limits and he was intelligible (Tr. 325). She testified that that the Child’s expressive and receptive language skills were XXXXXXXXX (Tr. 350, 383). Ms. XXXXXX did not participate in the October 19, 2010 meeting.

The Educational Update was prepared by Mrs. XXXX is dated August 26, 2010. The reason stated for giving this evaluation was: “To ascertain (the Child’s) present level of academic functioning to determine appropriateness of special education services for the 2010-2011 school year.” (SD-6). She notes in the summary section that the evaluation was held in the Child’s home. Mrs. XXXXX administered the WRAT4 and the WRAT Expanded: Level 2. The results indicate that the Child only completed one of the subtests, spelling. In this area he scored a standard score XXXXXXXX. This report notes that the “Child unwilling did not [ ] take test” any of the other subtests (id).

Mrs. XXXXX’s does note in her report that she learned additional information from a consulting teacher that had worked with the Child in the past. She was told that he is able to attempt second grade math and comprehension tasks, forth grade decoding and fifth grade spelling skills. None of this information was obtained through her testing. The record includes no documentation of any of these results or who provided this information.

Mrs. XXXXX recommended that the Child, “could benefit from a Small Class Setting to support his academic needs. He could benefit from behavior management therapy to help reinforce wanted behaviors, can also improve his ability to communicate and interact with others.” (id).

Mrs. XXXXX was also not a participant in the October 2010 meeting and her report provided the committee with little information on the Child’s actual present level of academic functioning. He only completed one of the subtests.

The record includes no report, no observation and no reference to any Functional Behavioral Assessment (FBA) or Behavioral Plan. Even though the IEP include the need for a XXXX to assist the Child and the reports available to the Committee frequently note behavioral issues and the need for positive reinforcement or a form of token economy.

School reports: The Mother testified that she did not recall whether the Student received progress reports or report cards, but in any event did not submit any additional information for the CSE to consider, because she claimed the District did not ask her for any information (Tr. 459).11

Without more meaningful and current data, the CSE could not properly develop measurable goals and short-term objectives or benchmarks by which both the District and the Parent would be able to determine the Student’s progress as required by the Regulations.

I find that the Committee moved forward with developing the IEP without sufficient basic current information on the Child’s present level of performance in any academic or other need area. There was no prior review of what evaluations were needed and the testing that was attempted was hastily organized and in most cases incomplete. In addition none of the Child’s teachers were available to provide any additional needed information.

Regarding Goals and Objectives - The U.S. Department of Education has indicated:

In the official interpretation of its regulations, that an IEP team must develop measurable annual goals for a student, and may then develop either measurable intermediate steps (short-term objectives) or major milestones (benchmarks) that will enable educators and the student's parents to monitor the student's progress during the year. Short-term objectives generally break the skills described in the student's annual goals into discrete components, while benchmarks establish expected performance levels at regular intervals. (34 C.F.R. Part 300, Appendix A, Section I, Question 1).

Goals and objectives are to be developed from the Child’s present level of performance. A review of the goals and objectives listed in the October 19, 2010 IEP indicate that they have little actual relationship to the present level of performance available to the sub-CSE and none of those who evaluated or actually worked with the Child were participants in this meeting. For example there is no indication from any of these reports that the Child can During the course of this hearing the Parents introduced a report of a Consultation that took place on March 11, 2011. This was prepared by Dr. XXXXX, M.D. Dr. XXXXX also testified via telephone. The report and other information provided by Dr. XXXXX were not available to the District prior to or at the CSE meeting.

function on the level in any area of reading yet many of the goals have him now functioning at least on this level with a criteria of 85% success over 5 weeks. It would be revealing to determine his present level of function in each area listed under measurable goals using the same criteria as stated in this section of this IEP. What can he do now?

IEP Recommendations – The IEP recommends that the Student be placed at the District’s XXXXXXXXX class . The IEP includes related services:

both individually and in a small group and Parent Training. Additionally, the team recommended that the Student have an individual aide to accompany him throughout the day. The team also recommended that the program provide a positive reinforcement plan to assist him in attending to classroom activities and to decrease frustration (P - I, pg. 2).

Dr. XXXXX knew the Child both as his therapist and having seen him in his educational setting and was a participant in the October 19, 2010 CSE meeting. She opined that the Child would not be appropriately placed in a class of children of which five are classified as XXXX. She explained that she did not think that that would be a good fit. “The child has a desire and the beginnings of a lot of social skills and what he needs is models and models in terms of peers that are within his capability so that he can continue to work on his social skills and do so in a way that is received by his peers and appreciated by his peers ….that cannot be done when the majority of the kids have the [XXXX] diagnosis.” (Tr. 611-612). She indicated that even if the other children were on the same level academically that it would still not be an appropriate class. “… his social and emotional growth really cannot take place unless he has the appropriate peers with whom to grow and to reciprocate with.” (Id.).

She testified that she felt that he made social and emotional progress during the 2009-2010 school year (Tr. 610). He is not on the [XXXXXX] XXXXXX. There are symptoms that may overlap with children on the XXXXX, but I find that he had a XXXXXXXXX (Tr. 611).

The Comments section of this IEP also include that the “Parents requested that the following be put into the comments. The Parents do not agree with the class placement.” (Id, pg. 6). Dr. XXXXX recalled that, “when the Chair asked [the Parents] what they disagreed with, time was running out and they just said ‘we disagree and we just want to move to an impartial hearing.”(Tr. 296). The record includes a handwritten note dated October 19, 2010 signed by the Father that states, “I place my child privately at XXXXXXX in [the] XXXXX.” (SD-19). The Father confirmed that he did sign this note (Tr. 949). He explained that he wrote it because, “Ms. XXXXX told him at the meeting that, I have to write the statement or else there will be no services provided to my child (Tr. 949-950). The Father explained that he, “wanted the district to provide my child with free and appropriate education. We had plans to go and see the placement. We were told that the placement would be in XXXX class, which we had seen before, but we wanted to see it again. We were not ready to make a decision until that’s done. We had not seen the IEP, and what that means to me and what it meant at that time is that my child has been going to school for the past ten weeks and that’s where he‘s going so we can get services” (Tr. 950). The record does not reveal if the Parents were advised by the District that signing such a statement, (SD-19), would trigger the sub-CSE ’s development of the

IESP.

The record includes the two documents developed as a result of this IEP meeting. The first is an IEP (P-I), and the second an IESP (SD-7). The first letter was sent on November 5, 2010. Ms. XXXXX, the CSE Chairperson, sent this letter to the Parents advising them that, “the Board has formally met on November 3, 2010 and supported the recommendation of the Subcommittee on Special Education, which you have already received” (SD-24). There is no documentary evidence on when the Parents received this IEP. The Father testified that he recalled getting the IESP between two to four weeks after the October meeting (Tr. 953). They did not realize that it was not the IEP until they were preparing to visit the recommended class. They called and requested the IEP. They got the IEP about two weeks later (Tr. 954).

On November 12, a second letter was sent by Ms. XXXXX to the Parents.

“After careful consideration and review, the Committee on Special Education has recommended that your child continue to be classified as a student with a disability and receive special education services as indicated on the enclosed Individualized Education Services Program (IESP). The IESP indicates the evaluations used by the Committee as a basis for its decision and other program options considered and reasons they were accepted or rejected as well as any other factors relevant to the Committee’s decision for providing appropriate services in the least restrictive environment.” This letter goes on,

“The results of the Committee meeting will be forwarded to the Board of Education for their review. Once the Board of Education has met to review the committee’s recommendation, you will receive a letter notifying you of the Board’s decision.” (SD-25).

This second XXXXX letter did include a copy of the Child’s October 19, 2010 IESP.

Neither of these letters reference the Parents’ Comment included in the IEP/IESP that the “Parents do not agree with the class placement” (P-I, SD-7) or the Parents’ August 19 letter advising that were placing their Child at XXXXXXX (SD-19).

Dr. XXXXX testified to the District’s rational for the preparation of two documents; one the IEP and the second the IESP. She explained that the District has, “a two prong process. We develop an IEP over FAPE and then we get a letter from the parent declining or saying we’re parentally placing the child at a school of our choice. We then generate an IESP and the parent actually gets both documents. One is to provide FAPE so the child comes to public school, they are always welcome and there is a place waiting for them. …. The parent has absolutely the right to place the child in a school of their choice; we use the IESP to provide related services in the school…” She explained that the two documents come out at the same time. The first is the IEP offering FAPE. The second would be the IESP. And that’s triggered by letter that the parent gives usually at the [CSE] meeting stating that they are parentally placing their child, and then [the District] will then provide all of the related services.” (Tr..298-299).

At the Impartial Hearing, Ms. XXXXXr testified that the IESP was generated because the Father wrote and signed the statement regarding his placing his Child at XXXXXXX at the subcommittee meeting (SD-19) (Tr. 582-83).

I find that based on the review of the information that was available to the District it is apparent that the October 19, 2010 CSE did not have available to them current and objective data that would be necessary to determine: the Child's present need areas, his current level of performance in each of his need areas, or to develop measurable goals and objectives or benchmarks for each need area and therefore to develop a meaningful IEP. (8 NYCRR 200.4(b)(6), 8 NYCRR 200.4(f)(1)(i)), (8 NYCRR 200.4 [d][2]).

I find that the IEP does not: list measurable annual goals consistent with the Student's needs and abilities, including benchmarks or short-term instructional objectives and evaluative criteria, evaluation procedures and schedules to be used to measure progress toward the annual goals and to be followed during the period beginning with placement and ending with the next scheduled review by the Committee. Such benchmarks or short-term instructional objectives shall be measurable, intermediate steps between present levels of educational performance and the annual goals that are established for a student with a disability. (8 NYCRR 200.4 [d][2]iii]).

Based upon the cumulative effect of an improper CSE composition at the October 19, 2010 meeting, the insufficiency of the evaluations considered by the CSE and the resultant inappropriateness of the goals and objectives listed in the IEP and IESP generated on October 19, 2010, I find that the District failed to provide a FAPE to this Child for the 2010-2011 school year.

The District, therefore, has not met its burden of proof with respect to the first criterion of the Burlington/Carter test. Accordingly, it is now necessary to consider the next two prongs: whether the Parents have met their burden of demonstrating that the XXXXXXX placement selected for that school year was appropriate and is the Parents’ claim supported by equitable considerations?

II. Did the Parent’s unilateral private school placement of the Child meet his needs?

It is the parent’s burden of proof to establish that a private placement is appropriate for their child and thereby warrants tuition reimbursement. (M.S. v. Bd. of Ed., 231 F.3d 96, 104 (2d Cir. 2000)). The fact that the facility chosen by the parents, such as the XXXXXXX Program has not been State-approved for children with disabilities is not dispositive. (Florence County School District Four v. Carter, 510 U.S. 7 (1993)). The Supreme Court held that a parent's claim for tuition reimbursement for an unapproved private school was not barred, because the statutory definition of a free appropriate public education (20 USC 1401 [a] [18]), which includes a requirement that the services provided must meet State educational agency standards, did not apply to parental placements. Therefore, the fact that the private school in Florence County did not have a fully certified instructional staff or develop IEPs for its children did not preclude tuition reimbursement. However, the Supreme Court indicated that the private school placement must be proper under the substantive requirements of the Individuals with Disabilities Education Act (20 USC 1400 et seq.). In view of the Supreme Court's holding that the absence of a private school IEP did not preclude tuition reimbursement, the Parents’ request for reimbursement can be considered.

The requirement that a placement be in the least restrictive environment applies to unilateral placements by parents as well as to school district placements. While parents are not held to as strict a standard, the issue must be considered in determining whether the parents are entitled to an award of tuition reimbursement. (M.S. v. Bd. of Ed., 231 F.3d 96, 105 (2d Cir. 2000)).

In this instant matter, the Child is enrolled in an un-graded class in the XXXXXXX Program. The program is not on the list of State approved schools. The Child is now finishing his second year at the XXXXXXX Program. This Program now has students and two teachers. One of the teachers, Ms. XXXXX, has both a master’s degree in special education and is certified to teach special education (Tr. 703, 903). The second teacher, Mr. XXXXX, testified that he does not yet have a degree or certification in special education but is certified in social studies and is working towards a master’s degree and certification in special education (Tr. 696). He has taught for three years in a self contained classroom and subbed in regular education for two years. Mr. XXXXX has been at the XXXXXXX Program since October of 2010 and has had the Child in his class since that time (Tr. 699). This class also includes an aide, Ms. XXXXX, who serves as the Child’s shadow [his 1-1 aide] (Tr. 703). The Child receives individual three times a week from the District’s therapist (Tr. 319) as well as (Tr. 712-713).

Classes go from 8:30 in the morning until 4 in the afternoon. The morning consists of with in the afternoon. The two teachers share teaching responsibilities and are joined in the morning by an additional person who teaches

This program is supported by a part time curriculum director, Ms. XXXXX, and a part time psychologist. Ms. XXXXX has a master’s degree in special education and is certified as a special education teacher (Tr. 815-16). She is on site two days a week and is responsible for assisting teachers and the curriculum. 12

Both Mr. XXXXX and Ms. XXXXX testified regarding the Child’s progress at the XXXXXXX Program.

Ms. XXXXX and Mr. XXXXX described the Child as a XXXXXXXX youngster, who is XXXXXXX, and has an XXXXXX (Tr. at 701, 824, 827, 870, 885).

As set forth below, the XXXXXXX staff demonstrated that their program provides the Child with instruction “specifically designed to meet ... [his] unique needs”.

In that regard, the XXXXXXX staff determined that the Child is a visual learner (Tr. 715, 752, 756, 829, 836) who also has a very good memory (Tr.713). When teaching the Child in his two weakest academic areas, math and reading comprehension, (Tr. 714) both of which have a strong language component (Tr. 831, 839-40, 905), they employ methods that allow him, as much as possible, to rely on his very good visual memory (Tr. 829, 834, 836).

Mr. XXXXX testified that the Child receives individual instruction in math, as do all XXXXXXX students (Tr. 729, 834, 845, 882). The math is taught through a series called TouchMath (Tr. 830), which pairs visual cues – i.e., dots – with numbers to assist him in making numerical associations (Tr. 756). As a visual learner, [the Child] can look at multiple dots on a page and determine their precise number (Tr. 752, 905-906). The XXXXXXX staff is now working with [the Child] to help him transition to understanding and performing math functions, without relying on the visual cues (Tr.751-52, 756). His math skills are now between the and level (Tr.712, 737).

Likewise, when individually working with the Child in the area of reading comprehension, the XXXXXXX staff allows him to rely on his good visual memory. They

Ms. was not invited to participate in the October 19, 2010 District CSE meeting (Tr. 902). have found that, if they give him a full page of text, he can lose focus and become anxious (Tr. 715, 831. Thus, the XXXXXXX staff presents the Child with less material on a page and asks him fewer questions at a time (Tr. 715, 716). They also use timelines and graphic organizers, strategies that are effective teaching tools for visual learners (id.). Regarding the individualized reading program, Mr. XXXXX said,

“We’ll take a paragraph ... and we’ll go through the [individual] words first to see if he has an understanding of the words..... ... [A]fter we’ve gone through the individual words, ... he’ll read the whole thing. Then I’ll ask him questions....

[Y]ou have to pull out the words first and have an understanding of the word.

Sometimes he won’t know a particular vocabulary word, so I’ll usually look at the reading material first, pull it out, go over the words with him; then we’ll go back and read the entire thing.” (Tr. at 729-30).

Similarly, according to Ms. XXXXX, “It’s the vocabulary and the language that we are addressing. If we address it and explain it for him to understand it and then you ask him a question, he reads.” (Tr. 898). In addition to this individualized approach to reading comprehension, XXXXXXX created a language-rich environment to help the Child and his classmates build their vocabularies (Tr. 837). “We bombard the class with language-based approach through everything that they do.”

According to Mr. XXXXX, the Student is functioning on a starting grade level in reading comprehension (Tr. 718, 737), and Ms. XXXXX would put him at a mid to mid grade level (Tr. 832, 841, 896-97). Mr. XXXXX stated that in math he is at around a or grade level. As opposed to math and reading comprehension, the Child’s spelling and decoding skills are excellent; he decodes and spells on a grade level (Tr. at 713, 841).

As with his academics, Mr. XXXXX testified that the Child is now more social than when he met him in October. “He’s able to integrate into the classroom environment in a much better fashion, His behavior has improved tremendously” (Tr. 720).

With regard to mainstreaming, XXXXXXX is a self-contained program housed within the XXXXXXXXXX. This XXXXX has over 500 children with the majority regular education students (Tr. 745). While the Child is not mainstreamed for any academic subjects (nor was there any testimony that he should be), he does has the opportunity to interact with non-disabled peers in the lunchroom, in the library and gym, as well as during recess (Tr. 485, 745-46, 832-33).

In summary, the XXXXXXX Program currently has students with two teachers, one certified in special education. The teachers are supported by a part time special education teacher; the Child is assisted by a full time one-on-one aide and receives and that are provided by the District as called for in their IESP.

I find that this XXXXXXX Program has been designed to meet the Child’s unique needs and is a placement that is “likely to produce progress, not regression.” Walczak, 142 F.3d at 130.

I find, therefore, that the placement at the XXXXXXX Program for the school year 2010-2011 was appropriate and provided the Child with an opportunity to benefit from his education.

III. Is the Parents’ claim supported by equitable considerations?

IDEA and its implementing regulations provide that an IHO or court has discretion to deny or reduce an award of tuition reimbursement if the parents fail to give the school district notice at the most recent CSE meeting “that they are rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. §1412[a][10][C][iii][I]); 34 C.F.R. §300.403(e). This statutory provision, "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004] Moreover, the courts have frequently denied requests for tuition reimbursement if the parents have behaved in an inequitable manner. (See, e.g., Florence County School District Four v. Carter, 510 U.S. 7, 15 (1993)).

In this instant matter the District Sub-CSE meeting was held on October 19, 2010. The Parents participated in this meeting and cooperated in this process. The record indicates that they did object in writing to the recommended placement in a District program and advised the District of their intention to continue their Child at the XXXXXXX Program for 2010- 2011 school year (SD-19). As noted above, the record includes a handwritten note dated October 19, 2010 signed by the Father that states, “I place my child privately at XXXXXXX in [the] .” (SD-19). The Father confirmed that he did sign this note (Tr. 949). He explained that he wrote it because, “Ms. XXXXX told him at the meeting that, I have to write the statement or else there will be no services provided to my child” (Tr. 949- 950) The Father explained that he, “wanted the district to provide my child with free and appropriate education. We had plans to go and see the placement. We were told that the placement would be in XXXXX, which we had seen before, but we wanted to see it again. We were not ready to make a decision until that’s done. We had not seen the IEP, and what that means to me and what it meant at that time is that my child has been going to school for the past ten weeks and that’s where he’s going so we can get services.” (Tr. 950).

The comments section of the IEP and IESP includes, “Parents requested the following be put into the comments. The Parents do not agree with the class placement.” (P-L, SD-7).

The Parents’ testimony that they referred their son for purposes of obtaining a free and appropriate education is not supported by their actions and evidence in this case. The Father testified that all of the schools that his son attended since kindergarten have been non-public schools, all of these schools, “enroll XXXX children, children”(Tr. 537). During the 2009-2010 the Child attended the XXXXXXX Program that was at that time located in a XXXXX facility in a neighboring school District. The Parents created and opened the XXXXXXX Program in September of 2009. One of the XXXXXXX teachers testified that the morning program at XXXXXXX includes XXXXXXX and studies and the afternoon, studies math, social studies, science and reading (Tr.703). The Parents lease at this XXXXXX was not renewed for the 2010 school year. The Father did not refer his son to the XXXXXXXX School District at any time prior to the receipt of the termination of his lease in XXXXX and the securing of a site within the District for XXXXXXX (Tr. 552).

In May 2010, the Father acting as a director of the XXXXXXX Program, and his attorney met with the District’s Superintendent of Schools seeking District funding for the XXXXXXX Program. As noted in his letter, Mr. XXXXX sought District support for the XXXXXXX Program (P-B). Mr. XXXXX’s request for District funding or services is consistent with the goal of expanding XXXXXXX that was expressed by the former school psychologist. The former XXXXXXX school psychologist testified that the hope of the program is for more children to attend and for it to become more well know (Tr. 688).

The Father testified that on May 10, 2010 he called the District’s transportation office to let them know that that his Child’s school would be moving to the District (Tr. 506). He stated that he spoke with Mr. XXXXX, a member of the District’s board, Dr. XXXXXX Head of the District’s office of funded programs, and Ms. XXXXXr regarding the move to the District (Tr. 510-512, 517). The Father also requested to be put on the District’s Email list for non-public schools within the district. He testified that this was done immediately and that he started to receive Emails (Tr. 518)(P-C).

The record does include a copy of the District’s notification to the Parents regarding their request for transportation for their Child to the XXXXXX. The form includes “Last Altered 7/28/2010” This form lists information regarding the times for transportation to and from the Child’s home to the “XXXXXXX” (P-D).

On August 10, 2010 the Father sent an email to Dr. XXX written on behalf of two XXXXXXX students. To “bring to your attention that two children in our program [XXXXXXX] located this year at the XXXXX, have not yet had their annual review or CSE Committee meeting” He added that, “We are enrolling additional children and may be providing other names for your consideration as well” (P-G). One of the children mentioned in this Email was his son. There is no indication in this Email that he wanted a meeting of the CSE to placement opportunities for his son in a District program. (P-G). The Parent did actively pursue support for the children enrolled in the XXXXXXX Program,

Dr. XXXXX testified that the Parents did not tell her that they were seeking a public school program. She stated that “they developed this program, the XXXXXXX Program. They were very proud of the program they had developed and I understood that since [the Child’s] parents were directors and the developers that he would remain with that program.” (Tr. 289).

The record includes no written request or notification that the Parents were interested in having their son return to a district school. All of their communication with District personnel appears to be on behalf of their XXXXXXX Program’s relocation into the District.

On August 22, 2010, the Parents signed an Enrollment Contract with the XXXXXXX Program and agreed to pay the Student's tuition for the 2010-11 school year (P-L, Tr. 471). This agreement indicates that they enrolled the Student in the program with respect to the “2010-2011” school year, additionally, according to the document; tuition is not refunded after 8/22/2010. (P-L, pg 2)13 The Parents did not provide any testimony that they were required to enroll the child in XXXXXXX to preserve a seat for him, and in fact, the class contained only students (Tr. 702). The tuition document shows that they had committed to XXXXXXX before they met with the CSE.

During the course of this hearing that Father was asked “If [the District] offered [his son] what you believe was an appropriate educational setting for [him] would you consent to that setting? His response was, “Yes. Absolutely, I would” (Tr. 527). The Mother indicated that she was looking for a free and appropriate public education from the school district. They were not committed to his remaining at XXXXXXX (Tr. 414, 471).

I find that the Parents’ statements regarding their willingness to return their Child to a District program is not supported by the record. The record of this hearing establishes that

Note: the school year listed in this document 2009 - 2010 was incorrect on this document. This was corrected on the exhibit and initialed by the IHO.

regardless of the CSE’s recommended placement their Child was going to return to

XXXXXXX.

I find that the Parents’ claim for tuition reimbursement for the unilateral placement of their son in a private school for the 2010-2011 school year is not supported by equitable considerations.

ORDER

I therefore direct:

That the IEP prepared by the District for the 2010-2011 be deemed a nullity.

That the IESP also prepared by the District shall remain in force only to the extent that it provides the related services listed in this document in support of the Child’s placement by the Parents at the XXXXXXX Program for the 2010-2011 school year, pursuant to Education Law §3602-c.

That the District reimburse that Parents for the costs they incurred in providing related services in support of the Child’s placement at the XXXXXXX Program. These include the cost of providing the 1:1 aide for this Child and for the provided at XXXXXXX from the beginning of the school year until the time the District provided this service in December 2010. Payment shall be made, upon the Parents presentation to the District of proof of such payments.

This decision is rendered July 22, 2011.

JDZ Joel D. Ziev, Ed.D.

Impartial Hearing Officer

PLEASE TAKE NOTICE:

The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer. The parents and the board of education involved in this proceeding have the right to obtain a review of this decision by the State review officer in accordance with 8 NYCRR 200.5[j]). Within 35 days of the date of this decision, the parent and/or the School District may 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 mall 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 may be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Footnotes

[1] Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993). These two cases are typically referred to together as the "Burlington/Carter" analysis for tuition reimbursement.

[2] The record of this hearing indicates that there was an impartial hearing regarding the 2008-2009 school year that according to the Father resulted in a settlement (Tr. 529) and a resolution that dealt with the 2009-2010 The record includes no documentation of these actions. This hearing will only focus on issues regarding the 2010- 2011 school year (Tr. 12).

[4] Basic Education Data Systems number

[5] The record of this hearing does not include a written referral by the Parents to this District of Location that would have provided additional special education support. The record indicates that the District understood that the District of location would be responsible for the annual review and for developing the Individualized Educational Services Program (“IESP”) for the 2010-2011 school year.

[6] The letter regarding approval of this lease is dated June 22, 2010 (P-O)

[7] The Father apparently knew at that time that the XXXXXXX lease for 2010-2011 had already been approved. 5

[8] The record includes no documentation that despite the Parents’ receipt of a BEDS number during the 2009- 2010 school year, that they referred their son to XXXXX for services or for an annual review or any XXXXX’s Child Find outreach efforts. 6