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Special Education Law
DECISIONParent PrevailedSEL No. 2011-ih-817

New York City Department of Education, Impartial Hearing Decision

December 28, 2011·Lana S. Flame·Hearing Requested by: Parent

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: Hearing Requested By: Parent Date of Hearing: September 26, 2011

December 6, 2011 Actual Record Close Date: December 16, 2011 Hearing Officer: Lana S. Flame, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 26, 2011

Mother — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2011

Mother — Student

Social Worker (via telephone) — Student

(via telephone) — Student

Attorney — DOE

Director, (via telephone) — DOE

CSE (via telephone) — DOE

(via telephone) — DOE

The parent of . filed an impartial hearing request on his behalf, dated August 30, 2011. (Ex. A). The hearing was held in the matter of ., pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. Sec. 1415(f)(1), on September 26, 2011, and December 6, 2011. The New York City Department of Education ("DOE") was represented by an attorney, . The parent was self-represented. Lists of the documents entered into evidence and the individuals who testified are included in the decision. Procedural History and Time Line Extensions

The parent requested the hearing by letter dated and served on the DOE, August 30, 2011. The resolution period ended on September 12, 2011, due to an unsuccessful session and the parties waived the remainder of the period. The parent requested a determination regarding the student's pendency placement. The hearing regarding pendency was held on September 26, 2011. A written pendency order was issued on October 7, 2011 (Ex. II). The hearing was scheduled for December 6, 2011, because the parties could not schedule their witnesses on a mutually workable earlier date. On October 13, 2011, the parties jointly requested two thirty day extensions of the compliance date due to the availability of the witnesses. I granted a thirty day extension to, November 26, 2011, which the NYSED IHRS automatically rolled over to the next business day, November 28, 2011. On November 23, 2011, I granted a second thirty day extension due to the availability of the witnesses to December 28, 2011. (Tr. 324-325). The hearing continued on December 6, 2011. The parties requested leave to submit posthearing closing statements. They were submitted on December 16, 2011, and forwarded to me by the New York City DOE Impartial Hearing Office on December 20, 2011.[1]

Background

. is grade student who is and , or disorder. (Ex. B-5, Tr. 289). The parent explained how these disorders manifest themselves in the student. He has “a lot of , , very . There's a host of issues that come with having . He has , they can have .” (Tr. 289). He has a condition. (Tr. 289-290). He has . (Tr. 290).

In October 2009, . was diagnosed as having by Dr. while the family was living in a, “more for the than the ...his has to him...” (Tr. 292).

On September 28, 2010, the parent attended a CSE review and her son's case was deferred to the Central Based Support Team (“CBST”). (Tr. 307). On November 3, 2010, the CSE met and added , a New York State-approved non-public school, to IEP. (Tr. 299). The student attended from November 2010 to June 2011. On or about March 8, 2011, at a CSE meeting, the parent produced prescriptions in an effort to have physical therapy and reading instruction added to the student's IEP. The CSE denied her request. On or about March 22, 2011, was added to the student's IEP. (Tr. 19, 301). The parent filed for an impartial hearing in order to obtain special reading instruction and had a resolution session on May 4, 2011, at which time she entered into a resolution agreement for individual Special Education Teacher Support Services (“SETSS”) four times per week, an hour per session, not to exceed 240 hours. Sixty hours of SETSS was still owed from the months that the student was not placed in September and October 2010 (Tr. 247) and the DOE agreed to provide 180 additional hours of SETSS. (Ex. D; Tr. 16-17, 262).

The DOE's Committee on Special Eduction ("CSE") met on June 28, 2011, and developed an Individualized Education Program ("IEP") for the student. He was classified as having a disability, (" "). The classification is not in dispute. (Tr. 286). The student was recommended for a New York State approved non public school (“NPS”) day program with a staffing ratio of and the following related services: once a week in a group of three for thirty minutes per session; once a week for thirty minutes per session; twice a week for thirty minutes per session; twice a week for forty-five minutes per session; once a week for thirty minutes per session; and in a group of three twice a week for thirty minutes per session. The student also was recommended to receive a . (Ex. B-29). The student was offered a placement at the and has been attending the school since July 5, 2011. (Tr. 14).

All of the related services are noted to be provided in a “separate” location. (Ex. B-28, B-29). The IEP states that the student's services are to be provided at “current frequency, duration and location” (Ex. B-4). Issue Presented

In her due process complaint, the parent alleges that the DOE denied her son a free and appropriate public education (“FAPE”) by failing to provide a number of his related services after school through outside providers, namely the individual once a week for thirty minutes per session, and twice a week for thirty minutes per session, individual twice a week for forty-five minutes per session, and twice a week for thirty minutes per session.

In the course of the hearing the DOE and parent stipulated that the student should be attending the , that the related services listed on his IEP are appropriate, and that he received his related services from outside providers over the 2011 summer months at DOE expense. (Tr. 5-6, 42, 67, 96). The parties stipulated that the student is receiving his mandated services through an RSA for the 2011-2012 school year. (Tr. 82). Additionally, the parent testified that the student is receiving all of his services at The and she is not challenging the provision of those services there. (Tr. 61).

Therefore, the issue presented is whether the DOE provided a FAPE in its recommendation that the student attend The and receive all of his related services during the school day except for . The Evidence Presented

Ms. , director of the elementary program of is familiar with the student from the application process as well as from seeing him in class daily and speaking to the mother about his services. (Tr. 103-104). She believes that he is progressing academically. (Tr. 104-105). Ms. testified that the school has been using the IEP dated June 28, 2011, but that she anticipated that the IEP would be amended because the parent informed her that she wanted to be provided through RSAs. (Tr. 106).

receives counseling at , individually once a week for thirty minutes per session and in a group of three once a week for thirty minutes per session. (Tr. 107-108). He has received these services at the school since the summer session began in July 2011. (Tr. 108). The takes place in the therapist's office. (Tr. 109). The provides language on site and has four on staff. The provides on site and has three full-time therapists on staff. (Tr. 109).

Ms. testified that when a child is accepted into The the expectation is that they will receive their IEP mandated related services at the school. (Tr. 112, 121). It was The intention to provide . with all of his related services when he began to attend. (Tr. 120).

Ms. testified that The tries to have its related services providers provide 25% of the mandate pushed into the classroom. She added that the goal is to push in and services 40% of the student's mandate. Ms. testified that the effort to increase the provision of related services in the classroom is a school policy because they do not want the children to be pulled out of their classes and have their academics disrupted. (Tr. 143).She added that it is different for each child and when they do pull students out, it is during nonacademic classes, as much as possible. (Tr. 112-113, 142).

She clarified that for ., "for the most part" he would be pulled out for his and therapy. (Tr. 114). She was not sure which class would be used for the 25% push in, but thought probably it would be during reading and language arts. (Tr. 143-144). Ms. explained that even if a student's IEP did not say the services should be pushed in, her understanding was that "we're covered if the push in. That's my understanding." (Tr. 144).

Based on a general school schedule, Ms. testified that . has eight forty minute periods per day and homeroom from 8:00 am to 8:25 am. (Tr. 115, 119, 135-136, 137; Ex. III). He usually arrives by 8:05 am, has his breakfast and does a morning activity to get ready for the day. Four periods a week ( 2 hours and 40 minutes) are devoted to nonacademic subjects, Music, Art, Family and Consumer Science (Health) and Technology. Four periods a week ( 2 hours and 20 minutes) are devoted to adaptive physical education and one day per week, . has swim instruction for two periods for about an hour and thirty minutes, for an eight week period. (Ex. III). Ms. testified that the related services providers make the students' schedules. Ms. testified that . would have received his two thirty minute sessions of during his physical education classes. (Tr. 118). She was not sure when he would have received his one thirty minute session of individual or two thirty minutes sessions of . She thought maybe during the 8:00am to 8:30 am home room period or during technology, a time when there were no academics. "I would look at his schedule and try to figure out a good time." (Tr. 118119). She believed that could have been provided his mandated related services during the school day. She stated that the school "would've done our best to make sure" that receiving all of those mandated services would not have impacted his academic instruction. (Tr. 119).

Ms. was not aware of the number of hours the student is taken out of the classroom for the . (Tr. 122-123). A progress report from states that . "is seen two times per week one on one and two times per week in a group of three for 40-minute sessions." (Tr. 146-147; Ex. I-6). Ms. understood that . is taken out sixth period on Mondays and Wednesdays, during art and a course called “Inquiry” which Ms. described as a period used to get the students used to a new way of teaching adopted by . (Tr. 146-147). During that period the students are exposed to new vocabulary that is used in the program and she characterized it as addressing mostly science or social studies skills. (Tr. 139).

Regarding her letter of September 28, 2011, Ms. testified that although it stated that “he was receiving all mandated services through RSAs”, (IHO Ex. I), at the time, . in fact was receiving and his health paraprofessional at . (Tr. 130-313). She wrote that she understood that . would be receiving his related services through the school year through RSAs because that is what the parent had told her. (Tr. 131-132).

The parties stipulated to the fact that no minutes were taken of the June 28, 2011, CSE meeting. (Tr. 244).

testified that she is a social worker at CSE 4 who works with the non-public school team. (Tr. 158). She was the social worker on the June 28, 2011, CSE team and had prior meetings for the student with the parent (Tr. 169, 170). She recalled that the team deferred the case to the Central Based Support Team (“CBST”) to change the student's school setting.(Tr. 170, 171). She elaborated saying that the school he was attending in was not meeting all of his educational needs and the CSE felt that The was both more appropriate and closer to his home. (Tr. 171).[2] She further testified that “the prior setting wasn't able to provide all the needs of services in their setting” which was “what actually initiated the change to a different setting”. (Tr. 175). Specifically, it “was probably the and maybe additional reading services.” (Tr. 175-176). When asked to elaborate on the student's need for additional reading services, the witness did not recall what was discussed. (Tr. 176).

She recalled that the CSE discussed the student's needs for " , and , and special ." (Tr. 171). She did not recall the student's specific needs, but recalled that she and the school , "were actually pushing for those services to be provided in the school setting" so the services can be integrated more closely with his academic setting. (Tr. 172-173). Ms. testified that this discussion was had with the parent at almost every meeting, but was not sure if it was discussed at the June 28, 2011 meeting. (Tr. 173-174). She had no recollection about discussing the student's needs. (Tr. 174). She thought that the team also recommended that take place in the school setting. (Tr. 174-175). The parent expressed that she preferred to have the services provided outside of school (Tr. 178). Ms. understood that the RSAs issued at the June 28, 2011 meeting were to be effective until “middle August”. (Tr. 160-161). She also thought that the student’s previously awarded SETSS hours were going to be used in school. (Tr. 162).

Ms. recalled that the CSE told the parent that the services would be provided "within a certain time frame and then it's up to the new CSE to see where things go from there", i.e., that the services “would only be provided up until a certain date". (Tr. 179). She then stated: “I'm not sure actually.” (Tr. 178-179).

testified that she is a , has been the interim acting chairperson of CSE 4 since July 1, 2011, and previously was the supervisor of psychologists. (Tr. 186-187). She is familiar with . because his educational programming was covered by her CSE. (Tr. 188). She recalled meeting the parent in the course of a resolution session and a CSE review prior to June 2011. Ms. recalled being present at a meeting with the parent on June 28, 2011, at the CSE review. (Tr. 193-194, 224-225). She recalled that the “conversation surrounded [ .'s] significant reading issues and his learning progression” and also “how other services would be given to him so he could maximize his time in school.”(Tr. 225-226). The parent thought “that he needed to remain in the classroom to gain as much reading and on-task time as possible” and was concerned about his rate of learning. (Tr. 226, 227). She recalled that the parent was concerned about her son attending a new school and wanted his related services to be provided outside of the school. Ms recalled that the CSE agreed that RSAs could be provided for the summer because they thought it would help him make the transition to the new school by allowing for more time in his classrooms. (Tr. 194-195, 212-213, 221, 227, 233). She later testified that she believes that “there was some conversations about whether there were and providers in the school.” (Tr. 216-217). Ms. testified that after the summer months she would not have had jurisdiction to provide RSAs for the related services since the student no longer would be serviced by her CSE, but by the CSE that covers the area where The is located. (Tr. 195-196, 201, 216, 217-218)).

Ms. testified that she is familiar with .'s educational needs “as was shared.by his mom”. (Tr. 203). She understood that “he has significant reading delays.” (Tr. 203). In response to being asked whether it would be appropriate for . to continue to receive his related services in an outside location past the summer she responded that the “only time that we really put RSAs in place are when there is no provider at a school.” She further explained that . was about to begin to attend an and “when a youngster is attending an that means that that particular is going to meet that child's very specific learning and/or other needs, and that is why that child is attending that school.” (Tr. 203-204, 206-207).

Ms. testified that at the June 28, 2011, IEP meeting she was not aware specifically of what services The would be providing, but that if an is recommended, that school is “going to meet the child's needs during the course of the day, hence that's why the child needs that most restrictive kind of programming.” (Tr. 213). Subsequently she testified that she did remember a conversation about the student receiving a specific type of reading program within the school day. (Tr. 214, 228-229). She did not recall if she ever was aware of the total number of hours mandated for his related services. (Tr. 214, 228). Ms. could not answer whether in light of . receiving reading services at The , it would be an appropriate academic decision to have all of his related services provided at The as of September 2011, because she does not know . “well enough to answer that question” nor is she “familiar enough with the program at to answer that question.' (Tr. 214-215).

Ms. testified that she believed that after the summer session, the parent “would have to work with another CSE to determine what [ .'s] needs were, and that the nonpublic school that he was beginning would be able to meet his needs during the course of the day...” (Tr. 230-231). She believed that would be able to meet his needs during the course of the school day “[b]ecause that is the premise as to why students attend nonpublic schools, because that particular school has the capacity to address that particular student's needs.” (Tr. 231).

The Parent testified that she and her son moved to New York City form in August 2010. The DOE did not place . until November 2010. (Tr. 247). He was placed at in Rockland County, but it was not a barrier-free school. (Tr. 247). At 's he received each tme per week for thirty minutes per session and some individual and . (Tr. 22-23). He also received RSAs for , and at , an agency contracted by the DOE to provide related services. (Tr. 247-248). In February 2011 . began to receive SETSS to make up for the from September to November 2010. (Tr. 248).

The parent testified that she began to look for other schools for her son since . 's was not barrier free. She applied , where . visited and ultimately was accepted on June 15, 2011. (Ex. 1; Ex. 2). The parent testified that she called , told her about the reading program at , and asked whether she thought that the CSE might issue RSAs so that . could continue to receive the same related services he was then receiving through AQTA and receive the reading services at The Child School. (Tr. 264-265). She attended the June 28, 2011, CSE review, asked for the RSAs, and met resistance to the idea. However, after was called in, the parent thought that the CSE had agreed to give her RSAs for all of the related services except the and and that she would not use her SETSS hours for the duration of the 2011-2012 school year; instead . would receive a special reading instruction program at . (Tr. 268, 279-280). RSAs were issued for 's , . (Ex. IV). The parent testified that she did not become aware until August that the RSAs were for the summer months only and that the CSE would not issue RSAs for September 2011 through the end of the 2011-2012 school year. The parent has not used a single hour of the SETSS hours she received in her resolution session. (Tr. 281). . receives an intensive reading program at , a . (Tr. 281).

The parent testified that it would be very difficult for her son to keep up academically if he constantly is pulled out for services, and noted that all of his services are mandated to be pull out services. (Tr. 275-276). She stated that when the reading teacher indicates that he needs fewer reading hours, then . should receive his related services in school. She explained that push in services would not work for her son because he has a very limited attention span. Since he already has a , an additional adult in the classroom “is just going to .” (Tr. 277). The parent testified .'s rate of progress as reported by the reading teacher . She does not want to by having him taken out of class for and additional four hours per week. (Tr. 277).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework

The central purpose of the IDEA is to ensure that children with disabilities have available to them a free appropriate public education (“FAPE”). 20 U.S.C. Sec. 1400(d)(1)(A). See Bd. Of Educ. v. Rowley, 458 U.S. 176, 179-80 (1982). A FAPE includes special education and related services designed to meet the student's individual needs, provided in conformity with a written IEP, at public expense. 20 U.S.C. Sec. 1401(9); 20 U.S.C. Sec. 1414 (d). The special education and related services must be “tailored to meet the unique needs of the particular child and be 'reasonably calculated to enable the child to receive educational benefits.'” E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., ---F. Supp. 2D ---, 2010 WL 3835008, at *1 (S.D.N.Y. Sept. 30, 2010) (quoting Rowley, 458 U.S. At 207) (additional internal quotations omitted).

A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (M.S. v. Bd. of Educ., 231 F.3d 96, 102 [2d Cir. 2000], cert. denied, 532 U.S. 942 [2001]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 [2d Cir. 1998]; Application of a Child with a Disability, Appeal No. 02-028; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). In order to meet its burden, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA and (b) that the IEP that its CSE developed for the student is reasonably calculated to confer educational benefits to the student (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]; M.S., 231 F.3d at 102; Application of the Bd. of Educ., Appeal No. 04-031). If a procedural violation has occurred, relief is warranted if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]), e.g., resulted in the loss of educational opportunity (Evans v. Bd. of Educ., 930 F. Supp.83, 93 94 [S.D.N.Y. 1996]), compromised the development of an appropriate IEP in a way that deprived the student of educational benefits under that IEP (Arlington Cent. Sch. Dist. v. D.K., 2002 WL3218 [S.D.N.Y. Nov. 14, 2002]), or seriously infringed on the parents' opportunity to participate in the IEP formulation process (see W.A. v. Pascarella, 3 F. Supp.2d 144, 3 [D. Conn. 2001]; Brier v. Fair Haven Grade Sch. Dist, 948 F. Supp. 1242, 1255 [D. Vt. 1996]).

The DOE did not meet its burden of proof to establish that the provision of all of the student's related services in school, except , was appropriate to address the student's individual educational needs. Moreover, the evidence does not establish that the could implement the mandated services during the school day without interfering substantially with the student's academic and other mandated areas of service.

Ms. testified that she could not say whether it would be an appropriate educational decision to have . receive his mandated services during the school day after the summer months because she did not really know his needs and was not sufficiently familiar with the program at . Ms. did not recall the student's needs or provide any testimony regarding the appropriateness of providing the services during the school day, only that she and the school psychologist suggested that it be done. Ms. did not testify about the student's needs or how they would be met at . Her testimony addressed whether or not would be able to provide the mandated related services. Based on the testimony of the DOE's witnesses, and the documentary evidence, the DOE did not meet its burden of proving that it offered the student a FAPE for the 2011-2012 school year. The DOE did not establish that its recommended program would enable the student to progress rather than regress. Rowley.

The record establishes that . has in ), writing (beginning second grade) and ). (Ex. B-3). The record shows that The reading program is one of the rationales for placing the student there and currently the student receives 2 hours and 40 minutes of the Wilson Reading Program, four forty minute sessions which are scheduled during the school day. Based on the record, he receives some of those services during Art and some during “Inquiry”, when he is missing instruction in a new way the school intends to teach its students. It is unclear from the record when the two additional 40 minute periods are scheduled. Ms. had not been aware of two of the 40 minute periods of reading instruction the student is receiving as documented in the progress report from The Child School's Wilson Reading teacher, and agreed that it would be more difficult to schedule the related services because of the reading program.

Ms. testified that The would do the best it could for the scheduling of the related services not to impact on his academic instruction, but could not say when it actually would be scheduled. (Tr. 118-119). Although Ms. testified that the service providers set their own schedules, she did testify that would receive his two thirty minute sessions of during two of his adaptive physical education classes. (Tr. 118). She speculated that he could receive his one session of individual speech and two group sessions during the daily twenty-five minutes he has of homeroom or during technology. (Tr. 118-119). . receives for one hour per week. The services require an additional total of 2 hours and 30 minutes of scheduling during the school week. Also, there are the two additional forty minute reading sessions that are not accounted for. The reading program requires two hours and forty minutes of scheduling during the school week. All of the student's related services require three and a half hours of class time scheduling. In total requires six hours and ten minutes of special programming, more than twenty percent of his school week.

From the school schedule included in evidence coupled with Ms. 's testimony it appears that there are ten 40 minute periods of non academic classes in the school week and at most twenty minutes of every homeroom class in the morning available for scheduling additional services the student needs. Four of the ten periods are used by the Wilson Reading program leaving six 40 minute periods (4 hours) and the homeroom minutes to schedule .'s 3 hours and 30 minutes of related services during non academic periods. Ms. 's testimony did not sufficiently establish the likelihood that appropriate scheduling would or even could occur. The providers and .'s schedules would have to align as would the schedules of the students in his two group speech sessions.

Although .'s IEP does not mandate push in services, Ms. testified that it is the school's policy to provide at least 25% of the related services in the classroom even though none of the students' IEPs call for it. (Tr. 143-144). The record establishes that push in services would not be appropriate for . as he already has difficulty attending to class and as stated on his IEP, “needs ”. (Ex. B-3). Contrary to the decisions cited by the DOE, SRO Appeal No. 97-15, here the CSE did not provide a rational basis for changing the student's services to a push-in model. The progress was based on his and the provision of and through RSAs outside of school.

Additionally, while the above calculations allow for periods of adaptive physical education to be used for scheduling, it must be noted that the student actually is mandated to receive adaptive physical education which is defined in the regulations as “a specially designed program of developmental activities, games, sports and rhythms suited to the interests, capacities and limitations of students with disabilities who may not safely or successfully engage in unrestricted participation in the activities of the regular physical education program.” (8 NYCRR 200.1 (b)). The definition of “special education” in section 602(29) of the IDEA includes instruction in . In fact, the U.S. Department of Education recently published guidelines for ensuring that students with disabilities have access to appropriate physical education: “Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics”, August 2011. Accordingly, it would not be appropriate for this student to miss a substantial portion of his adaptive physical education in order to receive his related services, leaving even fewer periods to schedule his related services.

In total, the DOE did not establish that through its recommended program at The alone, it would be able to implement the student's IEP, and therefore it has failed to prove that it offered the student a FAPE for the 2011-2012 school year.

Additionally, the DOE's witnesses testified that the June 28, 2011, decision regarding the related services only was effective for the summer months because the student's needs would then need to be determined by the CSE that reviews the educational programs of students who attend . Not only is there no staturoy or regulatory authority cited for that position, the CSE developed an IEP for a period to begin on July 5, 2011 with a projected review date of June 28, 2012. (Ex. B-2). As part of one school district, i.e., New York City, the June 28, 2011, had the responsibility to develop an appropriate IEP for the entire 2011-2012 school year. The CSE had the authority to issue RSAs for the school year and at best, the testimony for why it did not is contradictory and disingenuous. The June 28, 2011, CSE was charged with developing an educational program for the 2011-2012 school year and if it did not consider and decide where and how the student was to receive his many mandated related services with the knowledge that he also would be receiving an intensive reading program at , then on behalf of the district it most certainly failed to consider what this student needed to receive a meaningful education ad denied the student a FAPE.

Given all of the facts presented, the DOE has failed to provide the student with a FAPE for the 2011-2012 school year.

ORDER

1. The DOE shall issue RSAs to the student for twice a week for thirty minutes per session, once a week for thirty minutes per session, and in a group of three twice a week for thirty minutes per session.

2. The RSAs shall be issued by January 6, 2012, and shall be effective until the end of the 2011-2012 school year. Dated: December 28, 2011

_____________________________

LANA S. FLAME, ESQ.

Impartial Hearing Officer LSF: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 Copy of Parents' Impartial Hearing Request with Fax Cover and Supporting

Documents, 8/30/11, 14 pp. B IEP, 6/28/11, 30 pp. C IEP, 3/8/11, 22 pp. D Resolution Agreement and Fax Confirmation, 5/4/11, 5/16/11, 5/25/11, 4 pp. E Justification for Increase in , 1 p. F EPC document from , 2/18/10, 2 pp. G IEP Cover Page and Related Services, 9/28/10, 2 pp. H IEP Cover Page and Related Services, 11/3/10,[2] pp. I Progress Report, 10/2011, 6 pp. J Office of Pupil Transportation Letter to Parent, 7/22/11, 1 p. K Response Form, , 10/29/10,[1] p. L RSA Form, 10/18/11, 4 pp. M Email Thread Between , 8/19/11 through 8/31/11, 3 pp.

DEPARTMENT OF EDUCATION

Footnotes

[1] The DOE's Closing Statement is marked and entered as IHO Ex. VI. The parent's Closing Statement is marked and entered as IHO Ex. VII.

[2] On cross-examination the parent prompted the witness with the prior school's name and rehabilitated the witness' testimony to establish that was actually located in . (Tr. 181).

[1] Parent Acceptance Form, 6/15/11, 1 p.

[2] Letter, 6/10/11, 1 p. IMPARTIAL HEARING OFFICER I Letter from , 6/27/11, 1 p. II Pendency Order, 10/7/11, 8 pp. III Omitted IV RSA Forms 2010-2011 School Year, Undated, 6 pp. V RSA-2 Independent Provider Approval Letter (Summer), 5 pp. VI DOE Closing Statement, 12/16/11, 11 pp. VII Parent Closing Statement, Undated, 48 pp.