New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: October 4, 2011

November 30, 2011

December 20, 2011

December 22, 2011 Actual Record Close Date: December 29, 2011 Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2011

Educational Advocacy Services — Student

CSE- Chairperson Designee — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 30, 2011

Advocate — Student

Mother — Student

Father — Student

Chairperson Designee — DOE

Teacher (via telephone) — DOE

A.P. (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 20, 2011

Advocate — Student

Parents

Parents

Principal — Student

Designee, CSE 7 — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2011

Advocate — Student

Parents

Teacher (via telephone) — Student

District Representative — DOE

On July 6, 2011, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of . The parent requested the hearing on July 1: (1) to challenge the alleged failure of the Committee on Special Education for District 21 (the “CSE”) to provide with a free appropriate public education for the 2010-2011 school year and (2) to seek reimbursement for tuition at the , a non-public school, for the 2010-2011 school year.

The hearing on the merits was conducted on October 4, November 30, December 20 and December 22. Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

The compliance date for the submission of this written decision was extended to October 14 and then to November 3 at the request of both parties because witnesses from the Department and from the child’s school were not available due to religious observance, to December 3 at the parent’s request because witnesses from the child’s school were not available, and finally to January 2 at the parent’s request because the parent had experienced a death in her family (trans. 83-84; see IHO Ex. I [notice to parties with explanations re: extension]). The record closed on December 29 upon the receipt by the hearing officer of the transcript.

Background

boy who experiences . He is He attended during the 2010-2011 school year. During the 2011-2012 school year, he attends a program in a District school in Brooklyn. His disability is classified as This classification is not in dispute. The School District’s Case a certified special education teacher employed by the Department of Education, testified that he was the “teacher-assigned” to the CSE to conduct classroom observations and participate in IEP meetings (trans. 17-18). He participated in a CSE meeting for on May 21, 2010 to prepare an IEP for September 2010 (trans. 18, 20; Department Ex. 1). The parent participated in the meeting by telephone. The following individuals also attended the meeting: a Department general education teacher, a school , (a classroom teacher at ), a parent member and the parent’s advocate (trans. 19). The CSE recommended that attend a special class in a special education school with a behavior management paraprofessional, and receive the related services of occupational therapy (four 30 minute sessions per week individually) and (three 45 minute sessions per week individually and two 45 minute sessions per week in a group of three students) (Department Ex. 1). The CSE also recommended that attend a summer program at (Department Exs. 1, 9).

The team had available progress reports for from his teacher and related service providers and Mr. classroom observation (trans. 20-22; Department Ex. 10). Mr. had observed on May 13, 2010. He observed during an instructional breakfast period and circle time for a total of 30 to 35 minutes (trans. 23-26). needed prompts from his teacher and paraprofessional during the meal and circle time. had difficulties with attention and needed the “paraprofessional to redirect him frequently” and “a lot of prompts from the teacher” to participate in circle time (trans. 25-26). often made “loud utterances” and hand/finger movements (trans. 27). used “pictures” to make requests during breakfast (trans. 49-50).

At the meeting, Mr. advised the parent of the procedures for requesting an assistive technology evaluation (trans. 47).

The IEP notes that but was able to make his wants and needs known through , was able to follow directions and classroom routines, and enjoyed interacting with peers and adults (Department Ex.^[1] at p. 3). He “exhibit[ed] a variety that often interfere[d] with his learning and require[d] redirection and an integration of a heavily individualized sensory diet in order to remain regulated” (id). was able to use the bathroom independently but had frequent accidents (id). He also assistance of a management paraprofessional and “highly intensive supervision” due to his behaviors (Department Ex.

1 There does not appear to have been a functional behavioral assessment )”FBA”) done in order to prepare this behavior intervention plan. The parent’s hearing request does not challenge the Department’s failure to conduct an FBA, therefore this decision does not address this issue.

therapist at prepared a report for the CSE meeting outlining his severe expressive, receptive and and his (Department Ex. 2). She described his progress in communication skills, social interactions . at also prepared a report describing his progress in self-regulation and his improved fine motor skills (Department Ex. 3). ’s classroom teacher prepared a progress report explaining that received a full-day ABA program focusing on discrimination skills, and daily living skills (Department Ex. 4). She stated that was able to learn “new skills,” benefitted from “intensive one to one instruction in which repetition and reinforcement coincide to acquire any new skills” and, due to his severe deficits, required “intense programming in order to further develop in a functional manner” (Department Ex. 4 at p. 3).

The CSE sent the parent a final notice of recommendation dated June 29, 2010, informing the parent (Department Ex. 6).

, a certified special education teacher, special education supervisor and principal, testified that she was an administrator at (trans. 60). The school includes thirteen classes for students age 4.9 through 11 years (trans. 61). The following related services are provided at the school: counseling. The program implements the TEACCH methodology and data is collected with respect to students’ skills (trans. 77-79). Ms. reviewed ’s IEP and stated that as of September 2010, the school would have been able to provide with all the related services set forth on that IEP (trans. 63). The school had sensory equipment in the occupational therapy room and the gym (trans. 73).

Ms. was unable to state who would have been ’s teacher as of September 2010. would have been placed in a class with students within a two-year age range of him (trans. 64). Ms. was unable to recall whether there were seats available for students in the eight year-old age range in September 2010 (trans. 64).

Ms. reviewed the goals set forth in ’s IEP and testified that each of his goals would have been able to have been addressed by personnel in the program at (trans. 66-69). She did not describe how the goals would have been addressed, except with respect to the use of a picture exchange communication system (“PECS”). She also reviewed the behavior intervention plan included in the IEP and observed that there were students in the program who manifested similar behaviors and for whom school personnel employed strategies similar to those described in ’s plan (trans. 70).

Ms. Montanile opined that P. 77K at P. 164 would have been able to provide a free appropriate public education to during the 2010-2011 school year (trans. 70). She was not asked, nor did she testify with respect to, the basis for her opinion. The Parent’s Case The parent testified that when was , it became clear that he was because he cried nonstop and was unable to sleep (trans. 165-167). was and received (trans. 166). entered when he was ; on the first day of school, the rabbi called the parent and told him to take home (trans. 167-168). then attended a series of schools, and then the parents enrolled him in (trans. 168).

The parent attended the CSE meeting in May 2010 and disagreed with the program because needed a program, but he agreed to look at the recommended program (trans. 169). The parent visited and found that all the children in the program were able to speak, the school was large, and they did not have (trans. 170). needed more attention than could be provided in a class because he can “get lost” in “five seconds” (trans. 171).

made progress at By the end of the 2010-2011 school year, he no longer needed toilet training, he was able to eat, and his behavior was better and calmer—he no longer jumped up and down and no longer banged his head on the floor (trans. 172).

After the parent visited the proposed placement at , he wrote to the CSE that this placement was not appropriate for because there were too many stairs, no ABA therapy, no “ ” and insufficient related services (Parent’s Ex. D). The parent also informed the CSE that he would enroll in Imagine and request an impartial hearing to seek tuition reimbursement (see also Parent’s Ex. E).

, the principal of , testified that she was a certified teacher of the handicapped, licensed speech pathologist and certified school building leader (trans. 91). Imagine is a small, private special education school with 21 students and 40 staff members during the 2010-2011 school year. Staff uses ABA and DIR methodologies, and all instruction and services are provided on a basis. Each student has an individualized and intense program (trans. 92). Students do work in small groups and dyads, but with one-to-one adult support (trans. 101). Staff members are trained at the beginning of the school year and weekly throughout the school year (trans. 93). The school provides a ten month program (trans. 109). Ms. stated that did need to receive services during the summer (trans. 109).

During the 2010-2011 school year, was a student at the school. He was in a class with five other students and six staff members. The staff members included the teacher, therapists and instructors (trans. 123). There are no paraprofessionals, and students rotate every 45 minutes to work with a different staff member. Ms. described as a child with significant, significant deficits in and regulatory skills. He received throughout the day and regulation techniques to keep him in a state where he could be ready to learn and was ready to learn. He was given academic programs throughout the day, related services throughout the day, life skills throughout the day in accordance with the goals that were set forth for him at the beginning of the year (trans. 95).

Staff formulated goals for in September through a series of meetings and through the school’s computer network (trans. 118-119). needed during the school day, particularly between learning tasks, in order to regulate himself in order to return to learning (trans. 96). is unable to regulate himself consistently, and “in the absence of these techniques, he cannot calm himself effectively” and jumps up and down, runs around, engages in , and is not able to learn (trans. 96). Teachers and therapists were able to address his sensory issues throughout the school day (trans. 101).

had parent training in the form of home visits by school staff to work with parents on strategies that have been successful at school and parental visits to the school (trans. 98). also provided students with related services (trans. 99). received occupational therapy, (trans. 105). Towards the end of the school year, started to use a voice output/ . School staff was trained on use of the device, and used it throughout the school day (trans. 109-112).

The school also employs visual schedules, which were appropriate for . had his own visual schedule which provided him with a detailed routine for the school day and served to help him organize himself and (trans. 125-126).

Ms. opined that provided with an appropriate special education because the program school staff designed addressed his specific needs: deficits (trans. 99, 101). made progress throughout the school year: he was able to transition through the school building and was able to regulate himself for longer periods of time and improved his peer interactions (trans. 99-101). Ms. attributed his progress to the intense sensory and self-regulation strategies used at the school (trans. 100).

, a certified special and general education teacher, testified that she was ’s teacher at during the 2010-2011 school year (trans. 140-141). She has received training in ABA, TEACCH and DIR/Floortime (trans. 139-140). There were six students in the class with six adults. The students’ ages ranged from six through twelve years (trans. 141-142). In the classroom, developed relationships with his teachers but had difficulty interacting with his peers. Ms. addressed this issue by placing him in a group of two students, in which he would continue to receive one-to-one support but he had opportunities to interact and engage in parallel play with other students (trans. 142).

also “had a ” so Ms. and the instituted a for him. As a result of these structured , became “more available for learning”—“with the instruction, we were able to provide that input and meet his needs throughout the day so that he was able to attend for longer periods of time” (trans. 142). All the staff members who worked with implemented his sensory diet (trans. 143).

’s .” He was able to attend for “at most five to seven minutes at a time. So he required frequent sensory input in order to be regulated” (trans. 151). Without such sensory input, would be unable to learn because he would not and would not be “available for learning.” With the staffing in the class, was able to receive the degree of input he needed without disrupting the rest of the class (trans. 151-152). Ms. stated that needs “a lot of attention” and a “very calm learning environment;” she observed that “if there are too many children in a classroom, then [he] might or other students might be ” (trans. 152). She opined that he needed a class of no more than six students with one-to-one instruction available and that provided him with the “specialized and individualized program” with “collaboration between therapists” that he needed (trans. 153).

needed some assistance with toileting and to feed himself appropriately (trans. 143).

Ms. described the class schedule (trans. 144-150; Parent’s Ex. J). The school day started with instructional breakfast and work on activities of daily living; then morning meeting, which was a circle time with the six students together but with one-toone adult support; yoga was provided for ; followed by DIR/Floortime and then ABA therapy in a discrete trial format, task analysis or independent activity schedule; lunch; motor activities to work on body recognition and motor planning; the final two periods of the day alternate among swimming (one time per week) and therapy.

Ms. opined that needed a 10 month school year and did not require a 12 month school year to address his special education needs (trans. 160-161). After school vacations, he is able after “a short amount of time to readjust” to school (trans. 161).

In March 2011, ’s teacher, Ms. , prepared an educational progress report (Parent’s Ex. G). She stated that was receiving ABA therapy, Floortime/DIR, therapy, . She provided instruction to him in social skills, communication, expressive and , academics, fine and gross motor skills, visual discrimination, and daily living skills. He was able to follow one and two step verbal directions in the classroom and answer simple questions about his wants and needs. “frequently engage[d] in , moving his fingers in front of his mouth while producing , .” He is able to be redirected to task for two to three minute intervals before engaging in . Ms. provided personalized sensory techniques periodically throughout the day to calm him. These techniques have been successful in reducing his self-stimulatory activities. Ms. also observed that becomes “ when he is in a room with multiple people and sounds” and his is likely to engage in . When this occurs, he is moved to a quiet, calm space.

was but wants to . He and modified sign-language with school staff.

With respect to academics, Ms. worked with on visual discrimination, working memory, imitation and communication. He can recognize the numbers 1, 2 and 3 and was working on spelling his name. Ms. stated that he “requires one to one direct instruction and frequent redirection to remain focused on his work” and was “able to attend in group lessons and meetings with frequent redirection” (Parent’s Ex. G at p. 2). He required “individualized instruction, frequent reinforcement, and a structured sensory diet throughout the school day in order to acquire new skills” (Parent’s Ex. G at p. 3).

In March 2011, ’s therapist prepared an annual report (Parent’s Ex. F). The therapist reported that had improved his receptive language abilities, specifically in answering yes/no questions and identifying objects. was able to follow one-step directions when he was . He required prompting for more complex directions. He was producing some verbal approximations of words and learning to use effectively an , an eight cell Talk Tech. His skills also improved.

’s also prepared a report in March 2011 (Parent’s Ex. H). The therapist detailed ’s progress: he can attend for longer periods of time and his fine motor skills and visual perceptual skills have improved.

School staff prepared a progress report for in April 2011 (Parent’s Ex. I; trans. 113-116). This report outlines the slow yet consistent progress made during the 2010-2011 school year in the areas of life skills, and leisure skills.

The parent signed an enrollment contract for the 2010-2011 school year (Parent’s Ex. K). The tuition was $77,500.00 for the period from September 2010 through June 2011. The parent paid this amount in full (Parent’s Exs. L, M).

Findings of Fact and Decision

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

I. The Appropriateness of the School District’s Program for The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-

121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) its CSE develops an IEP reasonably calculated to enable the student to receive educational benefits. Board of Education of Hendrick Hudson S.D. v. Rowley, 458 U.S. 176, 206-207 (1982). While school districts are required to comply with all procedures set forth in the IDEA, not all procedural errors result in an inadequate IEP. See, e.g., Application of a Child with a Disability, Appeal No. 06-121. If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. The School District bears the burden of demonstrating the appropriateness of the program recommended by its CSE.

A recommended special educational program must be reasonably calculated to allow the child to receive an educational benefit and be the least restrictive environment for the child. Board of Education Hendrick Hudson S.D. v. Rowley, 458 U.S. 176 (1982). A school district fulfills its obligations under the IDEA when it provides a child an IEP that is “’likely to produce progress, not regression” and that affords the child the opportunity for more than “mere ‘trivial advancement’”—in short, likely to provide some “’meaningful’” benefit. Application of a Child with a Disability, Appeal No. 06-121 quoting Cerra v. Pawling Central School District, 427 F.3d 186, 195 (2d Cir. 2005) and Mrs. B. v. Milford Board of Education, 103 F.3d 1114, 1120 (2d Cir. 1997)]. A school district thus satisfies this standard “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School District, 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189.

An appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010. The Department did not meet its burden of proof in establishing that the program recommended for in the IEP was appropriate. The IEP prepared for does not provide sufficient special education services to address his identified extreme special educational needs. Specifically, the IEP sets forth a program that is inadequate to address ’s identified and severe special educational needs in the areas of , , communication, social skills, pre-academics, and ADL skills. Furthermore, the proposed placement at where the defective IEP was to be implemented, was inappropriate for .

The program is inadequate to address ’s unique and identified special educational needs. manifests behavioral challenges and sensory deficits that severely impact his learning. The evidence (the testimony of Ms. and the Imagine reports as well as the information available at the CSE meeting) demonstrated that needed highly intensive supervision and structured throughout the school day to address his and . All the witnesses who have worked with clearly testified that required instruction throughout the school day in order to learn. had difficulties with attention and cognition and required prompting and reinforcement to participate in any learning-related activity. Every witness who has worked with unequivocally and credibly stated, based upon their experiences with and their educational expertise, that required in order for him to learn. There is one special education teacher in class. He or she would be unable to provide sufficient one-to-one teaching to throughout the school day. Similarly, one teacher would be unable to provide with the frequent prompting, redirection, reinforcement and repetition needed to remain on task, to address his and . There was no evidence that the crisis management paraprofessional would be able to address this range of special educational needs nor provide one-to-one instruction to . Furthermore, was unable to function in a group instructional setting (without one-toone teacher support) nor learn independently and, as a result, would not be able to benefit from the instruction presented in classroom.

also manifests significant requiring repetition and reinforcement of material and intensive development of communication skills. was nonverbal. There is nothing in the record to indicate how a program would be able to address his significant cognitive and communication deficits throughout the school day. alone (even provided for one period per day) was not sufficient to address ’s needs in this area. needed communication skills training throughout the school day and the integration of communication skills training in the classroom. In addition, needed to work on ADL skills, including continued work . Again, the Department did not establish how these needs would be met for —given his and need for one-to-one instruction with sensory input, reinforcement and repetition— in the program.

In sum, the IEP is inappropriate because it does not include sufficient one-to-one instruction and support to result in making any meaningful educational progress. See Application of a Child with a Disability, Appeal No. 10-039 (district failed to offer FAPE because the recommended program did not “provide the level of individual support required to address the student’s distractible behaviors and attention needs”).

While the IDEA does not require that the child’s IEP list a particular school, the school district is required to assign the child to a school at which the child’s IEP mandates can be satisfied and the child’s educational needs met. M.H. v. New York City Department of Education, 712 F. Supp. 125, 162-164 (S.D.N.Y. 2010). Placement at would not have been appropriate for . First, Ms. was unable to testify as to whether there was a seat available for at the school in September 2010. Second, Ms. conclusory testimony was insufficient to establish that ’s IEP could have been implemented at the school. She did not explain how the goals on the IEP would have been addressed, except for the goal relating to . The Department offered no evidence as to how ’s would be addressed at the school in the classroom throughout the school day—which is what needed. In addition, would have been overwhelmed in the large school environment, which would have further interfered with his ability to learn. As a result, the Department was unable to demonstrate that would have made meaningful educational progress at —without an intensive program with one-to-one instruction with supports to address his and make him available for learning, was not going to learn.

The evidence presented at the hearing establishes that the Department did not offer a free appropriate public education for the 2010-2011 school year. As a result, the parent prevails with respect to the first prong of the Burlington/Carter analysis.

II. The Appropriateness of Imagine

The parent bears the burden of proof concerning the appropriateness of Imagine for . See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2nd Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at Imagine addressed 's identified special education needs. See G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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 . . . . To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially 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.” Frank G., 459 F. 3d at 364 (emphasis added).

requires one-to-one instruction in order to learn and to address his . provided with this level of support. Imagine personnel addressed ’s needs for instruction in the areas of , social skills, ADL skills, expressive and receptive language, and fine and gross motor skills. Ms. described in detail the school’s program and explained how they were able to provide with an intense, supervised, individualized program of oneto-one instruction with repetition and reinforcement. They described how school personnel addressed ’s through consistent and structured sensory input throughout the school day. This input resulted in improved behavior, self-regulation and attention, and was available for learning. was able to move to working on pre-academic tasks. School staff also worked with on communication skills and social skills. The small and structured . By the end of the school year, was using a voice output device. Imagine also provided with therapy in the classroom and provided his parents with parent training.

has made slow, steady and consistent progress in line with his other special educational needs. His were reduced and his increased as a direct result of the school’s program of sensory input delivered throughout the school day in a structured, manner. He started on pre-academic skills. He improved his through the dyad work supported by teacher instruction. He increased his communication skills and his . School staff worked with him on using an assistive technology device—the voice output device. ’s fine also improved.

Imagine does not provide a twelve month school year. A parental unilateral placement is not required to provide every service a child requires. Therefore, the Imagine placement is not rendered inappropriate because it does not provide with six weeks of instruction in July and August. Given the progress made during the school’s ten month program, I cannot let the in the summer stand in the way of a finding of appropriateness of

It is important to remember that the “special” in special education means precisely that—special. In other words, “specialized instruction . . . to meet the unique needs of a child with a disability.” 20 U.S.C. §1401(25). The evidence demonstrates that the program met this definition. made progress consistent with his challenges while enrolled as the result of the type of structured and individualized with sensory input provided by school staff.

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at Imagine was appropriate for .

III. Equitable Considerations

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that the parent cooperated with the CSE by attending the CSE meeting, communicating with School District personnel, and visiting the placement at

Therefore, for all the above reasons, it is ordered that:

The Department of Education shall reimburse the parent for the tuition he has paid to the for ’s enrollment for the period from September 1, 2010 through and including June 30, 2011. The amount of reimbursement shall not exceed $77,500.00 and shall be paid by the Department within fifteen business days of receipt from the parent of proof of payment.

Dated: December 30, 2011

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer JMB:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Impartial Hearing Request, 7/1/11, 4 pp. B Program Description, Undated, 1 p. D Final Notice of Recommendation, 6/29/10, 2 pp. E Ten-Day Notice, 8/18/10, 1 p. F Therapy Report, 3/29/11, 6 pp. G Education Report, 3/13/11, 4 pp. H Report, 3/8/11, 11 pp. I Progress report, 4/29/11, 6 pp. J 2010/2011 School Year Class Schedule, 1 p. K 2010/2011 School Year, Enrollment Contract, 3 pp. L 2010/2011 School Year Affidavit of Payment, 1 p. M 2010/2011 school year, Parents' Proof of Payment, 3 pp.

DEPARTMENT OF EDUCATION

1 IEP, 05/21/2010, 19 pp. 2 Report, 5/14/2010, 3 pp. 3 Report, 5/3/2010 2 pp. 4 Teacher Report, 5/21/2010, 3 pp. 5 Floor Time Report, 5/17/2010, 3 pp. 6 Final Notice of Recommendation, 6/29/2010, 1 p. 7 Acceptance Letter, 2/22/2010, 1 p. 8 Medical Report, 5/17/2010, 2 pp. 9 CSE Minutes, 5/21/2010, 1 p. 10 Observation, 5/13/2010, 2 pp.

IMPARTIAL HEARNG OFFICER

I Email From Hearing Officer to Parties, 11/30/11, 1 p. II Email from Hearing Officer to Parties, 12/15/11, 1 p. III Case Follow-Up Sheets, Various Dates, 4 pp.

Footnotes

[1] at p. 5). His management needs included a small, structured environment; (id). His attention span is short (two to three minutes) (Department Ex. 1 at p. 6). The IEP includes a to address his (Department Ex. 1 at p. 19).1 The IEP includes goals in the areas of receptive , daily living skills, letter identification, social interaction, visual-perceptual skills, motor skills, and play skills.