New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.

SED ID No.

Student=s Name:

Date of Birth:

District: 13

Hearing Requested by: Parents

Dates of Hearings: August 6, 2010

August 20, 2010

October 28, 2010

December 22, 2010

January 5, 2011

January 28, 2011

February 28, 2011

March 18, 2011

April 13, 2011

Record Close Date: May 27, 2011

Hearing Officer: Mindy G. Wolman Case Number 128014

On July 2, 2010 the parents (the AParents@) of . (the AStudent@) requested an impartial hearing under the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C. section 1415 et seq and Article 89 of the New York State Education Law. I was appointed as impartial hearing officer on July 6, 2010. The matter came on for hearings on the issue of pendency on August 6, 2010 and August 20, 2010, and for substantive hearings on October 28, 2010, December 22, 2010, January 5, 2011, January 28, 2011, February 28, 2011, March 18, 2011, and April 13, 2011. An order on the Student=s pendency placement and program (the APendency Order@) was issued on October 4, 2010 (IHO Exh. IV). The compliance date for issuing a decision in this proceeding has been extended. Lists of the persons who appeared at the hearings and the documentary evidence submitted are appended to this Order.

The parties submitted post-hearing briefs in support of their legal positions (IHO Exhs. V and VI). They also submitted post-hearing correspondence regarding compliance with the Pendency Order (IHO Exhs. VI, VIII, and X).

KGROUND AND POSITIONS OF THE PARTIES

is years old and is diagnosed as having an disorder and s Syndrome. is and has substantial impairments across all domains. The within proceeding pertains to =s education program and placement for the 2010-2011 school year. On May 11, 2010, the Department of Education (the ADOE@) Committee on Education (ACSE@) recommended that be placed in a class in a school, with and therapy, therapy and therapy as related services (DOE Exh. 4). The CSE subsequently offered placement in a class at at (Parent Exh. K).

According to the Parents and their witnesses, presents with multiple interfering s. has been a major problem. In addition, engages in a Ahigh degree@ of selfstimulatory s that interfere with her learning (See, Tr. 736-7).

The Parents maintain that the CSE did not offer to provide with a free appropriate public education (AFAPE@) for the 2010-2011 school year. They challenge the CSE=s recommendations on both substantive and procedural grounds, and assert that the program and placement recommended by the CSE was not reasonably calculated to allow to receive meaningful educational benefits. The Parents unilaterally placed at the Center (A

@) for the 2010-2011 school year, with related services being provided after school. The Parents maintain that the program is appropriate and is reasonably calculated to provide with meaningful educational benefits. They also maintain that equitable factors support their reimbursement claim. The Parents seek the continuation of home/community-based services and compensatory services in addition to tuition reimbursement.

The DOE maintains that its CSE=s recommendations were appropriate and that any procedural irregularities were de minimus and did not rise to the level of a FAPE deprivation. It maintains that the CSE=s recommended program and placement would have provided with a Abaseline of opportunity@ to receive educational benefits in the least restrictive environment (A

@). The DOE also asserts that the placement was overly restrictive and not appropriate for , and that equitable factors do not support the Parents= tuition reimbursement claim. It maintains that there is no entitlement to compensatory services in this proceeding. The DOE requests that the Parents= request for relief be denied in its entirety.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. ' 1400 [d][1][A]. A FAPE consists of education and related services designed to meet a student=s unique needs, provided in conformity with a comprehensive written an IEP (34 C.F.R. ' 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits (See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE (8 NYCRR '200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir].

School districts need not furnish every education service necessary to Amaximize@ a student=s potential (Rowley, 458 U.S. at 199), however school districts must produce an IEP that is Alikely to produce progress, not regression@ and must afford the student with an opportunity to make more than mere Atrivial advancement@ (Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 1222 (2d Cir. 1998). Tuition Reimbursement

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

The DOE has the burden of proving that its CSE=s recommendations were appropriate. It did not meet this burden. The CSE did not take communication needs into account when developing program and placement recommendations. It did not consider her use of sign ( uses modified signs to communicate) and her demonstrated inability to utilize the

Communication System (A S@). The use of s was included in her IEP goals. s was also utilized in the proposed placement. Having considered the testimony of the witnesses for both parties, I also find that did not adequately take s al issues into account. The CSE erred in its determination that s s Adid not seriously interfere with instruction.@ Its proposed program did not provide the level of support that needs, or provide for her need for a very high rate of reinforcement. s s interfered with her learning, and warranted a Assessment ( ) and Intervention Plan ( ). The recommended program and placement would not have adequately addressed s al needs.

s IEP should have, but did not, include parent training and as a related service. Related services must be listed in an IEP. Testimony that it would have been provided Aprogramatically did not cure the failure to include it as part of her educational program. If parent training and had been included in the IEP, the IEP could (and should) have listed the frequency and duration of such services, as well as provided guidance (or goals) regarding parent training and services individualized to the needs of and her parents.

The Parents also asserted that the needs, s, and abilities of the other students in the proposed class at were significantly different from the s needs, s and abilities. The DOE had the burden of proving that would be appropriately grouped for instructional purposes at the proposed placement. Having considered the testimony presented by the DOE witnesses at the hearing, I find that it did not meet its burden of proof on this issue.

Based on the foregoing factors, I find that the DOE did not meet its burden of proving that it offered a FAPE for the 2010-2011 school year. As such, the Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the placement that they chose at was appropriate for . In order to meet this burden they must establish that the program provided instruction designed to meet s unique education needs. Although the restrictiveness of the program may be considered, the program need not be in the . The program need not employ certified education teachers or provide all of the services needed by the student. Based on the testimony and documentary evidence presented at the hearing, it appears that designed and implemented a program that targeted =s unique education needs. provides her with instruction throughout the school day. Although the program is very restrictive, at this point in time needs and benefits from the highly restrictive setting. The ( ) methodology utilized in =s program has been effective for her. =s instructional program is designed with her academic, communication, and needs in mind. staff is well aware of =s strengths and deficits. They implement and adapt instruction accordingly. As per the testimony presented at the hearing and the documentary evidence submitted, has made progress in a variety of domains over the course of the 2010-2011 school year.

Based on the foregoing factors, I find that the Parents have met their buden of proving that the placement that they chose for at was appropriate. They have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

Although the DOE contends that equitable factors preclude reimbursement, I can find nothing in the Record to support this contention. The determination of whether or not equitable factors support a parent=s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the CSE. Tuition reimbursement may be denied when a parent has (by action or inaction) interfered with the CSE evaluation, program development and placement process.

The appropriate inquiry regarding parental cooperation with the CSE is whether a parent=s actions, or inactions, interfered with the CSE’s program development and placement process. The Parents in this proceeding fully cooperated with the CSE. There is no evidence indicating that they interfered with or hindered the CSE in any way. The Parents attended and participated in CSE meetings. They did not withheld consent for evaluations, assessments, or observations. The Student’s mother visited the DOE’s proposed placement. The Parents provided the CSE with appropriate and timely notice of their rejection of the CSE’s proposed program and placement, and of their intent to unilaterally place at for the 2010-2011 school year (Parent Exh. J). The Parents= notice included s reasons for the rejection of the CSE’s proposed placement.

The signing of a tuition contract or payment of a deposit does not create an equitable bar to tuition reimbursement. The Parents’ signing of a contract did not interfere with or impede the CSE process in any way. Based on the Record before me, I find that equitable factors support the Parents’ tuition reimbursement claim. As such, the Parents have met the third of the three Burlington/Carter criteria for tuition reimbursement.

Having met all three prongs of the analysis, I find that the Parents are entitled to reimbursement for the cost of s enrollment at for the 2010-2011 school year.

The enrollment contract (Parent Exh M), proof of attendance (Parent Exh. Z), and proof of payment for a portion of the tuition cost (Parent Exh. AA) are included as part of the Hearing Record. There is no need for the Parents to submit additional documentation, other than proof of payment for the final tuition payment, prior to receiving tuition reimbursement. The total cost of s2010-2011 enrollment at was $ (Parent Exh. M). The Parents paid a $1,000.0 0 deposit on April 30, 2010, and an additional payment of on June 7, 2010 (Parent Exh. AA). The Parents made an additional payment of $19,000.00 about two weeks before the final hearing date held in this proceeding, however a copy of the cancelled check was not yet available for inclusion in the Hearing Record (Tr. 4/13/11 at 958-9).^[1] After School Services

In addition to tuition reimbursement, the Parents seek an order directing that the DOE provide or fund ten hours per week of home and community-based services, three hours per week of therapy, one hour per week of therapy, one hour per week of therapy. Per the testimony presented by the Parent witnesses in this proceeding, these services are a necessary component of her educational program. There is no dispute regarding s need for and therapy, therapy, and therapy. Her need for home and community-based ABA services is well-supported by the testimony of the Parents= witnesses. was entitled to receive these services as part her pendency program during this proceeding (the weekly hours for some of her pendency services is less than the services now requested by the Parents).

The frequency and duration of the services mandated by the Pendency Order (which was based on =s last agreed upon program) are sufficient to provide with a reasonable opportunity to make meaningful educational progress. The DOE has agreed to continue to fund these services (IHO Exh. VIII). As such, I will grant the Parents= request for ABA and related services by directing the DOE to continue to provide the services listed in the Pendency Order. Pendency/Compensatory Services The Parents also request that I direct the DOE to provide compensatory services to make up for pendency services that were not provided during this proceeding (IHO Exhs. VII and X). The DOE maintains that compensatory education is not the appropriate remedy, and that an order is not necessary because it will fund the requested hours (IHO Exh. VIII).

The DOE is correct in its assertion that Acompensatory education is not the correct remedy. Compensatory education is the continuation of instruction for a student after he or she is no longer eligible for instruction because of age or graduation. It is available as an equitable remedy where there has been a gross violation of the [IDEA] resulting in the denial of, or exclusion from, educational services for a substantial period of time. [Garro v. State of Connecticut, 23 F.3d 734, 737 (2d Cir. 1994); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Am h, 863 F.2d 1071(2d Cir. 1988)]. Since is still eligible for instruction, compensatory education does not apply.

That does not mean, however, that there is no remedy for the DOE’s failure to provide pendency services. The Pendency Order was issued on October 4, 2010. At some point thereafter, the DOE filed an appeal with the SRO. The Parents did not respond to the appeal. On December 13, 2010, the SRO held that the district failed to establish that it was not obligated to provide the student’s SEIT, - therapy, , and services listed in the March 2008 IEP and the hearing officer appropriately directed the district to provide the student with SEIT and related services@ (SRO Appeal 10-112, at page 6).

The SRO dismissed the DOE=s appeal on December 13, 2010. As of the January 5, 2011 hearing date, pendency services were not yet being provided (Tr. 428-430; 552-554). As of the January 28, 2011 hearing, the issue regarding the provision of pendency services had not yet been resolved (Tr. 652-667). This gave rise to a seven month gap in service (July 2, 2010 through January 28, 2011).

The DOE takes the position that it was not obligated to provide pendency services prior to the issuance of my Pendency Order. It also takes the position that it was not obligated to fund =s pendency services after the Pendency Order was issued because it appealed the order to the State Review Officer (ASRO@). It asserts that 8 N.Y.C.R.R. 200.5(j)(v) relieves it of the obligation to comply with an IHO’s pendency order if it appeals the order to the SRO. I read the relevant Commissioner’s Regulations somewhat differently.

Pendency guarantees students with disabilities the right to receive services during the pendency of litigation regarding their program and placement. The DOE’s argument, that litigation regarding pendency absolves it of the obligation to provide a student with pendency services, defeats the entire purpose of pendency.

Pendency is an automatic right that arises with the filing of a due process complaint, regardless of whether or not a written pendency order is issued. Commissioner’s Regulation 200.5(j)(v) does not operate as a stay of an IHO’s order. An IHO’s order is not stayed by the filing of an appeal to the SRO. Part 279.10(c) of the Commissioner’s Regulations incorporates section 200.5(m) (which is the provision that entitles a student with a disability to receive stay put/pendency services during due process proceedings). The DOE was therefore obligated to fund the Student’s pendency during the appeal to the SRO. It’s refusal to fund the services and refusal to issue Related Service Authorization (RSA) forms for the related services constituted a willful and intentional violation of the Pendency Order and of s due process right to pendency services. As a direct result of this due process violation, did not receive her stay put ABA services and therapy until February of 2011.^[2]

Compensatory services differs from compensatory education. It does not require that a student be ineligible for instruction due to age or graduation. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. A finding that there has been a deprivation of FAPE is necessary for an award of compensatory services. (See Application of a Child with a Disability, Appeal No. 07-109; Application of a Child with a Disability, Appeal No. 08-054).

The DOE’s willful refusal to provide with pendency services in this proceeding constituted a gross and flagrant violation of parental and student due process rights. The DOE’s refusal to provide or fund pendency services prevented from receiving home and communitybased ABA services and therapy services for an extended period of time (over seven months). Based on the testimony presented at the hearing, I find that the provision of additional services before becomes ineligible for instruction can remedy the deprivation of instruction. An award of compensatory services is appropriate.

Despite having taken the legal position that it was not required to fund s pendency services prior to the SRO decision, the DOE indicted that it will fund the previously unfunded 16 hours of therapy and 200 hours of services (this covers services that was entitled to, but did not, receive from September 5, 2010 through January 29, 2011). However, was entitled to receive pendency services as of the July 2, 2010 filing date of the Due Process Complaint. The right to receive pendency services commenced on the filing date. The Pendency Order, which was upheld on appeal, was nunc pro tunc to the July 2, 2010 filing date. is therefore entitled to funding for the pendency services that she was entitled to, but did not, receive during July and August of 2010 (4 hours per month of therapy and 40 hours per month of services). Those services (8 hours of therapy and 80 hours of ABA services) must be added to the September 2010 through January 2011 pendency services (16 hours of therapy and 200 hours of services) cited in the Parents= April 29, 2011 submission (IHO Exh. X). With the additional two months of summer pendency services, is entitled to a total of 24 hours of therapy services and 280 hours of services as compensatory services for the pendency services that were not provided or funded during the pendency of this proceeding.^[3]

IT IS HEREBY

ORDERED that the Department of Education (the ADOE@) is directed to reimburse the Parents for the cost of s placement at the Center for the 2010-2011 school year in the total amount of $ as follows: (a) reimbursement in the amount of $ shall be made directly the Parents within 15 days of the date hereof; and (b) reimbursement the amount of $ shall be made within 15 days of the submission of proof of payment; and it is further

ORDERED the New York City Department of Education is directed to fund the

Findings of Fact and Decision Page ^[10]

following services for the remainder of the 2010-2011 school year: (a) ten hours per week of home/community-based education teacher itinerant (ASEIT@) services ; (b) two 60minute sessions per week of home-based and therapy; (c) three 30-minute sessions per week of and therapy; (d) two 30-minute sessions of therapy; and (e) two 30-minute sessions per week of therapy; and it is further

ORDERED that the New York City Department of Education is directed to fund the following services as compensation for its failure to provide pendency services during the period July 2, 2010 through January 29, 2011: two hundred and eighty (280) hours of home/community-based services and twenty-four (24) hours of therapy services; and it is further

ORDERED that the foregoing compensatory services shall be provided between the date hereof and June 30, 2012.

Dated: June 5, 2011 MINDY G. WOLMAN,

Impartial Hearing Officer Hearing Office Distribution Date: _________

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the Board of Education of the 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.

AThe notice of intention to seek review shall be served upon the school district not less than

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 6, 2010

Esq. Attorney — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 20, 2010

Esq. Attorney — Parents

Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 28, 2010

Father

Attorney — Parents

Attorney — DOE

Bilingual School — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 22, 2010

Father

Attorney — Parents

Attorney — DOE

Assistant Principal (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 5, 2011

Mother

Attorney — Parents

Director (by telephone) — Parents

Attorney — DOE

Education Teacher (by telephone) — DOE

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

Father

Attorney — Parents

Attorney — Parents

Therapist (by telephone) — Parents

/ Pathologist (by telephone) — Parents

Attorney — DOE

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

Mother

Attorney — DOE

Attorney (by telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 18, 2011

Mother

Attorney — Parents

(by telephone) — Parents

Lead Teacher — Parents

Attorney — Parents

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

Mother

Father

Attorney — Parents

Education Teacher (by telephone) — Parents

Therapist Attorney (by telephone) — Parents

*Testified at Hearing

DOCUMENTS ADMITTED INTO EVIDENCE

Exh. Document Description Party

A. Demand for Due Process, 7/1/10, 9 pp. Parents

B. Amended Demand for Due Process and email confirmation, Parents

8/16/10, 10 pp.

C. DOE Individualized Education Program, 3/28/08, 15 pp. Parents

D. DOE Answer, 8/25/10, 9 pp. Parents

E. OMITTED

F. Letter from Center, 8/12/10, 1 p. Parents

G. Partial Resolution Agreement, 8/12/10, 2 pp. Parents

H. Student Progress Report, Center, 8/5/10, 8 pp. Parents

I. Letter to Region with fax confirmation, 8/3/10, 2 pp. Parents

J. Letter to Region with fax confirmation, 6/17/10, 3 pp. Parents

K. Final Notice of Recommendation, 6/11/10, 1 p. Parents

L. Education Service Delivery Report , 4/30/10, 5/20/09, 4/30/08, 3 pp. Parents

M. Enrollment Contract, 2010-2011, 5/19/10, 3 pp. Parents

N. Notice of IEP Meeting, 5/4/10, 1 p. Parents

O. Classroom Observation, 11/13/09, 1 p. Parents

P. Provider Affidavit of Service and RSA=s, June-July 2010, 5 pp. Parents

Q. Resume of , M.A., CCC-SLP, TSHH, undated, 1 p. Parents

R. Tax Return (1040), 2009, 2 pp. Parents

S. Consent Order, 08/03/88, 69 pp. Parents

T. Subpoena Ducus Tecum A & B, 2010-2011, 9 pp. Parents

U. School Observation Report by Ph.D., 9/17/10, 3 pp. Parents

V. Standard Operating Procedures Manual: DOE, 2/2009, 305 pp. Parents

W. Paraprofessional Qualifications, undated, 2 pp. Parents

X. Organization Directory, DOE District K369@P0 , 10/2010, Parents

1 p.

Y. Subpoenas with email confirmation, 12/23/10, 3 pp. Parents

Z. Attendance Record: Center, 2010-2011, 1 p. Parents

AA. Proof of Payment: Center, Apr/Jun 2010, 2 pp. Parents

BB. Methodologies: NYCDOE, 2/7/11, 3 pp. Parents

CC. . Methodologies: , 2/7/11, 3 pp. Parents

DD. OMITTED

EE. OMITTED

FF. District 75 Related Service Provider Schedule with Mandates as per IEP, Parents

September 2008 and September 2010, 2 pp.

GG. Student RS Service Status Information, undated, 13 pp. Parents

HH. Attendance Record: Center, 4/5/11, 1 p. Parents

1. Hearing Request, 9/27/09, 8 pp. Department of Education

2. CSE Individualized Education Program, 4/3/09, 22 pp. Department of Education

3. CPSE Individualized Education Program, 10/27/08, 14 pp. Department of Education

4. Individualized Education Program, 5/21/10, 19 pp. Department of Education

5. IEP Conference Summary, 5/21/10, 2 pp. Department of Education

6. IEP Meeting Notice, 5/4/10, 1 p. Department of Education

7. Annual Review Notice, 4/27/10, 1 p. Department of Education

8. History Update From, 3/26/09, 4 pp. Department of Education

9. 4/13/10, 6 pp. Department of Education

10. Letter from , ., 5/18/10, 2 pp. Department of Education

11. Student Progress Report, 4/12/10, 7 pp. Department of Education

12. 2010-11 Proposed Goals and Objectives, 5/14/10 fax header, 3 pp. Department of Education

13. Emilia=s Related Service Student Progress Report, 5/17/10 fax header, 3 pp. Department of Education

14. Emilia=s Therapy Annual Report, 4/29/10, 4 pp. Department of Education

15. Therapy Progress Report, 4/29/10, 4 pp. Department of Education

16. - Progress Report, 5/3/10 fax header, 4 pp. Department of Education

17. Classroom Observation, 11/13/09, 1 p. Department of Education

18. Referral Form, 6/3/10, 1 p. Department of Education

19. Developmental Reevaluation Report, 5/14/09, 12 pp. Department of Education

I. DOE Letter Brief regarding pendency, 8/27/10, 4 pp. Impartial Hearing Officer

II. Parents= Letter Brief regarding pendency, 8/27/10, 4 pp. Impartial Hearing Officer

III. Email correcting typographical error in Parent=s brief, 9/7/10, 2 pp. Impartial Hearing

Officer

IV. Corrected Interim Order on Pendency, 10/4/10, 4 pp. Impartial Hearing Officer

V. Petitioner=s Post-Hearing Brief, 5/4/11, 30 pp. Impartial Hearing Officer

VI. Department of Education Closing Statement, 5/4/11, 17 pp. Impartial Hearing Officer

VII. Letter from , 5/6/11, 1 p. Impartial Hearing Officer

VIII. Letter from , 5/9/11, 1 p. Impartial Hearing Officer

IX. Emails from , 4/14/11, 1 p. Impartial Hearing Officer

X. Letter from , 4/29/11, 4 pp. Impartial Hearing Officer

Footnotes

[1] After the final hearing date in this proceeding, the Parent submitted proof of payment for the $19,000 payment, along with a copy of the Assistive Technology evaluation performed during the pendency of this proceeding The DOE objected to the documents being included in the Record (IHO Exh. IX). In light of the DOE=s objections, the documents were not admitted into Evidence.

[2] received therapy and and therapy prior to that date because the Parents were able to make arrangements for the services despite the lack of RSAs and DOE funding.

[3] There is no request for compensatory services for the pendency-related therapy and and therapy. This was addressed through the issuance of Related Service Authorization (ARSA@) forms in or around January of 2011. (See Tr. 1/28/11) .

[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: http://www.sro.nysed.gov/appeals.htm.