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: December 12, 2011

March 1, 2012

April 18, 2012

May 4, 2012 Actual Record Close Date: June 27, 2012 Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2011

Attorney — Student

Parents

For the Board of Education: — Student

Attorney — Student

Special Education Teacher-Assigned, CSE (via telephone) — Student

Special Education Teacher-, — Student

Training Center (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 1, 2012

Attorney — Student

Mother — Student

Assistant Head- Academy (via telephone) — Student

Teacher- (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

Teacher (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 18, 2012

Attorney — Student

Mother — Student

- (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

Teacher (via telephone) — Student

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 4, 2012

Attorney — Student

Parents

Director (via telephone) — Student

Math Teacher (via telephone) — Student

For the Board of Education: — Student

Attorney — Student

I. INTRODUCTION - ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parent in a due process complaint notice dated September 6, 2011 (later amended on September 19, 2011). The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent and/or directly pay for costs associated with the student’s unilateral private placement at the Academy for the 2010/11 school year (Exs. SD-1, SD-2).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l). New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

I was appointed by the DOE to hear this matter on September 7, 2011. In a due process response dated September 13, 2011, the DOE denied each and every allegation contained in the parent’s due process complaint (Ex. SD-3 at 1). In a letter dated September 23, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). Hearings in this matter were held on: December 12, 2011; March 1, 2012; April 18, 2012; and May 4, 2012.^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the hearing request, the student was ( ) years-old, diagnosed with and educationally classified as having an (Exs. SD-2 at 1, SD-3 at 1, SD-4 at 1, 5, SD-9 at 2, P-C at 5).^[3] For the 2010/11 school year, the student attended the eleventh grade at the Academy (“ ”) (Exs. SD-2, P-B, P-D, P-E, P-F, P-G, P-R at 2). The Commissioner of Education has not approved as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, SD-2, SD-3). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).

The student received a full evaluation, including a cognitive assessment, on October 19, 2004. Based on the WISC-III administered at that time, the student displayed overall within the . Although some variability was noted in her skills, with a relative strength in , the student’s functioning was - in all areas of and (Ex. SD-9 at 2).

During the 2007/08 school year, the student’s grade, the student received the majority of her instruction in a special class at . She also received individual , time per week, and was assigned a full-time paraprofessional to aid her in and (Ex. SD-9 at 1).

During this time, the student’s teacher described her as a student whose previous and had waned. The student was reported to display periodic resistance to . In addition, the student was regarded as and in than in the past. She was reported to be apt to to adults’ and . The student’s grade special class teacher stated that the student required a structured, for school, where she could her skills (Ex. SD-9 at 1).

On a January 2008 administration of the WIAT-II, the student demonstrated delays in areas of and , relative to her and . The student’s academic profile was deemed to be consistent with her . In the area of , the student score of and a score of , placing her skills in these areas in the for her age. In the area of , the student’s score of suggested skills when both and were required. She achieved a standard score and a standard score of , which also fell within the . The evaluator recommended that the student continue to receive instruction in a class setting to address her and needs. and was also recommended (Ex. SD-9 at 2-3).

According to teacher reports from the 2008/09 school year, when the student was in grade, the student was performing significantly in . The student’s skills ( grade level) were than her skills ( grade level). Although and , the student’s skills were described as an area of . The student’s skills were estimated by her teacher to be at a grade level. In , the student had and (Ex. P-C at 2).

At a meeting held on March 10, 2009, the CSE developed an IEP for the student for the 2009/10 school year. The CSE recommended for the student’s grade that she continue to receive the majority of her instruction in a special class. The CSE also recommended that the student receive related services of specialized transportation, individual (Ex. P-C at 1, 3-5, 9, 11).

The student attended for the 2009/10 school year. According to progress reports prepared by the student’s teachers at that time, she was performing significantly in areas. The student had with . In , the student was able to ( ) through ( ), and did (i.e., ). The student needed to improve her to use . The student also needed to to and and her skills (Exs. SD-4 at 2, SD-5, SD-8, SD11).

At a meeting held on January 7, 2010, the CSE developed an IEP for the student for the 2010/11 school year. The CSE recommended for the student’s grade that she continue to receive the majority of her instruction in a special class. The CSE also recommended that the student receive related services of individual , and education. Program modifications of and as needed, into steps, , , teacher direction/assistance, and review and were also recommended by the CSE for the student. On consent of the parent, the student’s placement was deferred until July 1, 2010 (Exs. SD-4 at 1-5, 9, 11, SD-5, SD-7).

In a letter dated June 16, 2010, the parent informed the CSE that she had not received a copy of her daughter’s IEP nor a placement recommendation. The parent also gave the CSE written notice of her intent to place the student at at public expense for the 2010/11 school year (Ex. P-B).

In a Final Notice of Recommendation dated June 30, 2010, the day before this student’s twelve month educational program was scheduled to begin, the DOE identified the as the student’s placement for the 2010/11 school year (Exs. SD-4 at 1, SD-6,

SD-10).^[4]

In a letter dated September 1, 2010, the parent informed the CSE that she had visited the proposed program and concluded that it was inappropriate and would not meet the student’s educational needs. The parent stated that the student would remain at and that she would seek reimbursement for this unilateral private placement from the DOE (Ex. P-R).

IV. POSITIONS OF THE PARTIES

A. The DOE

The parent’s claim for tuition reimbursement and/or direct payment to should be denied. The DOE offered the student a free appropriate public education in the least restrictive environment for the 2010/11 school year. The CSE which developed the student’s IEP was duly constituted. The CSE relied on sufficient and adequate evaluative information to develop its IEP for the student. The parent was permitted meaningful participation in the CSE meeting. The IEP goals and objectives are reasonably related to the student’s educational needs. The proposed program was reasonably calculated to confer meaningful educational benefit to the student. The parent has not established the requisite financial need to qualify for direct payments to . was an inappropriate placement for the student which failed to meet her special education needs. The relevant equities also do not support the parent’s claim (R. 57-60; Ex. IHO-XVI).

B. The Parent

The DOE should be ordered to reimburse the parent and/or directly pay for the student’s tuition to for the 2010/11 school year. The DOE failed to offer the student a free appropriate public education for the 2010/11 school year. The IEP developed by the DOE was procedurally and substantively inadequate. appropriately addressed the student’s educational needs during the 2010/11 school year. The relevant equities also support direct public funding of the student’s tuition to for the 2010/11 school year (Ex. IHO-XVII).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. General Legal Standards

Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) 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) to ensure that the rights of students with disabilities and parents of such students are protected.^[5] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See 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 Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 f.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F. 3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and…affords the student with an opportunity greater than mere ‘trivial advancement.” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 208). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 4587 U.S. at 192.

The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).

An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8

NYCRR

§ 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c).

B. Procedural Compliance

Turning to the first prong of the Burlington/Carter test, I must determine whether the DOE complied with the procedural protections of the IDEA. See Cerra, 427 F.3d at 192.

1. CSE Membership - Regular Education Teacher

The parent alleges that the January 7, 2010 CSE was not properly constituted because it lacked a regular education teacher of the child (Ex. SD-2 at

1-2).

An IEP must be prepared by a CSE having each of its required members. See, e.g., Application of a Child with a Disability (Byram Hills Cent. Sch. Dist.), Appeal No. 99-54 (SRO July 31, 2000). A CSE must consist of: the parents of the student; at least one regular education teacher of the student (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the student, or if appropriate, at least one special education provider of the child; a school psychologist; a representative of the school district qualified to provide or supervise the provision of special education; an individual who can interpret the evaluations being reviewed by the CSE; and an additional parent member. See 20 U.S.C. §§ 1414(b)(4)(A), (d)(1)(B); 34 C.F.R. § 300.321; N.Y. Educ. Law §§ 4402(1)(b), 4410(3), 8 NYCRR § 200.3(a). The regular education teacher “shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and supplemental aids and services, program modification, and support for school personnel.” 20 U.S.C. § 1414(d)(3)(C); 34 C.F.R. § 300.324(a)(3); 8 NYCRR § 200.3(d).

I find that a regular education teacher of the student was not required at the January 7, 2010 CSE meeting because the evidence does not support the conclusion that there was a reasonable likelihood that the student would have been assigned to such a teacher. See 34 C.F.R. § 300.321(a)(2); 8 NYCRR § 200.3(a)(1)(ii); W.T. v. Board of Educ., 716 F. Supp. 2d 270, 287-88 (S.D.N.Y. 2010); M.N. v. New York City Dep’t of Educ., 700 F. Supp. 2d 356, 365-66 (S.D.N.Y. 2010). Ms. , a special education teacher assigned to the CSE who chaired the January 7th meeting, stated that a general education environment was not considered for the student given her unique special education needs and deficits (R. 93). The hearing record shows that the CSE recommended a placement in a self-contained special education setting, see 8 NYCRR § 200.6(h)(4)(i), and the parent’s unilateral placement at admits only students with special education needs (Exs. SD-4 at 1, P-D). Neither party in this case argues that the CSE should have offered the student additional opportunities for mainstreaming or that she should have been placed in a general education setting for the 2010/11 school year (Exs. SD-2, SD-3). Additionally, the January 7th IEP stated that the only other program the CSE considered for the student was a special class in a community school (Ex. SD-4 at 10).

2. Participation of Staff by Telephone

The parent also alleges, for the first time in its brief, that staff who participated in the January 7, 2010 meeting by phone were denied a meaningful opportunity to contribute to the discussion of the student’s needs (Ex. IHO-XVII at 5-6). Generally, state regulations provide that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process compliant notice unless the other party agrees. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b); R.B. v. Department of Educ. of City of New York, 2011 WL 437694, at *6-*7 (S.D.N.Y. Sept. 16, 2011); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *8 (S.D.N.Y. Aug. 27, 2010). As this issue was not raised in the parent’s due process complaint notice, I will not consider it now (Ex. SD-2). See C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011).

Alternatively, even if I were to consider this objection, I would find that the telephonic participation of the staff did not deny them or the parent a meaningful opportunity to contribute to the January 7th meeting. When conducting a CSE meeting, the parent and district representative may agree to use alternative means of meeting participation, such as video conferences and conference calls. See 34 C.F.R. § 300.328; 8 NYCRR § 200.4(d)(4)(i)(d). There is no indication in the hearing record that the parent objected to any CSE member's telephonic participation at the time of the meeting (Exs. SD-4, SD-5). The classroom observation which the CSE relied on, in part, to develop the January 2010 IEP was conducted in the student's then-current classroom (R. 79-80; Exs. SD-3 at 2, SD-8). Lastly, while Dr. , Assistant Head of , disagreed with the CSE’s program recommendation, the mere fact all CSE members were not in agreement with the program recommendation does not establish that Dr. or other staff were denied a meaningful opportunity to participate in the meeting (R. 255-256; Ex. SD-4). See A.E. v. Westport Bd. of Educ., 251 Fed. Appx. 685

(D. Conn. 2007). Accordingly, I find that the hearing record does not show that the telephonic participation of staff at the January 7, 2010 CSE meeting was a procedural error that impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process, or caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513; 8 NYCRR 200.5(j)(4).

3. Adequacy of, and Due Consideration of, Evaluations

The parent alleges that the CSE failed to consider current, sufficient and appropriate evaluative and documentary material to justify its recommendation (Ex. SD-2 at 1).

An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).

A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).

I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2010/11 school year (Exs. SD-4, SD-5, SD-8, SD-9, SD-11). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). I further find that the written statements of the student's then-present levels of performance were accurately reflected in the student's January 2010 IEP (Ex. SD-4 at 35). See Application of a Student with a Disability, Appeal No. 11-002 at 16 (SRO March 24, 2011). The student's present levels of performance reflected a description of the student's behaviors, academic abilities and learning characteristics that was consistent with information provided in the student’s prior academic year’s IEP, a classroom observation dated November 17, 2009, progress reports from the student’s then-current school, and the student’s most recent evaluation (R. 79-80; Exs. SD-4 at 3-5, SD-8, SD-9, SD-11, P-C). The testimony of Ms. and Dr. establish that the student’s then-current teachers and presented information at the CSE meeting about the student’s then-current academic and , addressing any potential discrepancies between her standardized testing and actual classroom performance (R. 83-84, 262-264; Exs. SD-5, SD-9).

Alternatively, I note that while the student’s was last reviewed in January of 2008, the CSE had not formally evaluated her since October of 2004 (Ex. SD-9 at 1-2). While the absence of a timely evaluation or of a written report of a school that a evaluation is unnecessary constitutes a procedural error, see 8 NYCRR §§ 200.4(b)(1)-(2); Application of the New York City Dep’t of Educ., Appeal No. 08-034 at 12-14 (SRO May 27, 2008), I deem that error to be harmless here as the student’s level of as of the January 2010 CSE meeting is not in dispute (Exs. SD-2, SD-3, SD-4, SD-9), see A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003).

4. Adequacy of IEP Goals

The parent alleges that the annual goals and short-term instructional objectives developed by the CSE for the student did not adequately address her particular needs (Ex. SD-2 at 2).

An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs that result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).

I find that the CSE’s IEP for the student for the 2010/11 school year established annual educational goals and short-term instructional objectives which were reasonably related to her educational deficits. The student’s IEP for the 2010/11 school year included annual goals in , , , , , skills and travel training which were consistent with those educational deficits identified in the student’s evaluations and described what she could reasonably be expected to accomplish within a ten month period (R. 80-92, 266, 508; Exs. SD-4 at 3-8, SD-8, SD-9, SD-11). The annual goals also included the evaluative criteria, evaluation procedures and schedules to be used to measure the student’s progress toward meeting each annual goal (Ex. SD-4 at 68). See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3). The student’s short-term instructional objectives in these areas represented measurable, intermediate steps between the student’s then-present levels of educational performance and her annual goals (Ex. SD-4 at 6-8).

5. Adequacy of Transition Plan

The parent alleges that the transition plan developed by the CSE for the student was vague and generic (Ex. SD-2 at 2).

Under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enables the student to prepare for later post-school activities, including postsecondary education, employment, and independent living. See 20 U.S.C. § 1401(34); see also N.Y. Educ. Law § 4401(9); 34 C.F.R. § 300.43; 8 NYCRR § 200.1(fff). Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least years of age (15 under State regulations) must include appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills. See 20 U.S.C. § 1414(d)(1)(A)(viii); 34 C.F.R. § 300.320(b); 8 NYCRR § 200.4(d)(2)(ix). It must also include the transition services needed to assist the student in reaching those goals. See id.

I find that the January 7, 2010 IEP contained a statement of services needed to assist the student in reaching her goals. See id. The January 7th plan indicated that upon programming, the family intended for the student to participate in a vocational training program while she lived . For the 2010/11 school year, the CSE recommended an annual goal on to assist the student in reaching her objectives (R. 9, 158-159; Ex. SD-4 at 12).

6. Delivery of IEP

The parent alleges that she did not receive a copy of the student’s IEP in a timely manner (Ex. SD-2 at 2). School districts must ensure that a child's IEP is in effect by the beginning of the school year and that the parents are provided a copy. See Cerra, 427 F.3d at 193-94.

The parent was present at the January 7, 2010 CSE meeting which developed the student’s IEP for the 2010/11 school year (Ex. SD-4 at 2). The parent also provided her informed written consent for the student to receive extended school year services during the summer of 2010 (Ex. SD-10). In a letter dated, June 16, 2010, the parent informed the CSE that she had not yet received a copy of the student’s IEP for the 2010/11 school year and of her intent to enroll the student at at public expense (Ex. P-B). Although there was no written response by the CSE to the parent’s June 16th letter, the DOE advised the parent, in a letter dated June 30, 2010, that the student’s placement for the 2010/11 school year would be (Ex. SD-6). The parent gave credible testimony that she did not receive the DOE’s June 30th letter, that she called the CSE in August of 2010 to inquire of the status of the student’s program and placement, that she traveled to the CSE’s office to secure a written copy of the student’s IEP and placement designation and that she thereafter visited the proposed program which she determined was inappropriate for the student (R. 497-501, 513-514; Ex. P-R).

Ms. , a special education teacher as , testified that she provided instruction to a special class during the summer of 2010 and would have implemented the student’s extended school year services has she attended Ms. class that summer (R. 145-146, 153-154).

From the testimony offered by Ms. and the parent, I find that the student’s IEP was is in effect by the beginning of the 2010/11 school year, that the parent had actual notice of the proposed program from her participation at the January 7th CSE meeting and that the parent was ultimately provided a copy of that IEP, albeit belatedly (Exs. SD-4 at 2, P-R). See Cerra, 427 F.3d at 193-94.

7. Functional Grouping of Proposed Class/Size of Assigned School The parent alleges that the assigned school would have been to large for the student and that the other students enrolled in the proposed class for the student were too to constitute an appropriate functional group (Ex. SD-2 at 2).

State regulations require that in special classes, students must be suitably grouped for instructional purposes with other students having similar individual needs. See 8 NYCRR §§ 200.1(ww)(3)(ii), 200.6(a)(3), (h)(3). State regulations further provide that determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to: levels of academic or educational achievement and learning characteristics; levels of social development; levels of physical development; and the management needs of the students in the classroom. See 8 NYCRR §§ 200.1(ww)(3)(i)(a)-(d), 200.6(h)(2). The social and physical levels of development of the individual students shall be considered to ensure beneficial growth to each student, although neither should be a sole basis for determining placement. See 8 NYCRR §§ 200.6(a)(3)(ii), (iii). Further, the management needs of students may vary and the modifications, adaptations and other resources are to be provided to students so that they do not detract from the opportunities of the other students in the class. See 8 NYCRR § 200.6(a)(3)(iv). State regulations also require that a “district operating a special class wherein the range of achievement levels in reading and mathematics exceeds three years shall . . . provide the [CSE] and the parents and teacher of students in such class a description of the range of achievement in reading and mathematics . . . in the class, by November 1st of each year.” See 8 NYCRR 200.6(g)(7). However, State regulations do not preclude a grouping of students in a classroom when the range of achievement levels in reading and math would exceed three (3) years. See Application of the New York City Dep’t of Educ., Appeal No. 08-018 at 13-14 (SRO May 19, 2008); Application of the Bd. of Educ. of the Granville Cent. Sch. Dist., Appeal No. 06-010 (SRO April 7, 2006).

In this case, a meaningful analysis of the parent’s claims with regard to the size of and the functional grouping of the proposed class would require me to determine what might have happened had the DOE been required to implement the student’s IEP. While parents are not required to first try out the school district’s proposed program before seeking tuition reimbursement, see Forest Grove, 129 S. Ct. at 2496, I note that neither the IDEA nor State regulations require a school district to establish the manner in which a student will be grouped on his or her IEP, as it would be neither practical nor appropriate, see Application of the Dep’t of Educ. of the City of New York, Appeal No. 11-040 at 22 (SRO June 8, 2011). The Second Circuit has also determined that, unlike an IEP, school districts are not expressly required to provide parents with class profiles. See Cerra, 427 F.3d at 194. The IDEA and State regulations provide parents with the opportunity to offer input in the development of a student’s IEP, but they do not permit parents to direct through veto a school district’s efforts to implement each student’s IEP. See T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 (2010). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being education under the plan, or would be, but for the delay in implementation. See E.H. v. Board of Educ., 2008 WL 3930028, at *11 (N.D.N.Y. Aug. 21, 2008), aff’d, 2009 WL336627 (2d Cir. Oct. 16, 2009). The sufficiency of the DOE’s offered program in this case is determined on the basis of the IEP itself. See R.E. v. New York City Dep’t of Educ., 2011 WL 924895, at *10 (S.D.N.Y. Mar. 15, 2011). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of FAPE due to the failure to implement it. See id.

Thus, in this case, the issues of the size of and the levels of the students in the class are speculative because the parent did not accept the services recommended by the CSE in the IEP or enroll the student in the public school (Exs. SD-2, SD-4, P-B, PR). See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-042 at 20-22 (SRO June 20, 2011).

B. Substantive Appropriateness of Proposed Program

As noted earlier, the IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.

For the reasons set forth below, I find that the DOE failed to meet its burden of proof to establish that the proposed class would have offered the student with personalized instruction with sufficient support services to permit the child to meaningfully benefit from that instruction. The last report of the student’s functioning in a setting (before ), comes from the student’s grade teacher, who provided the student with instruction in a special class at . That reported that the student “requires a , , where she can academic and skills” (Ex. SD-9 at 1).

The CSE recommended that the student participate in a twelve-month, extended school year program to prevent substantial regression of basic skills (Ex. SD-4 at 1). See

8 NYCRR §§ 200.1(eee), 200.6(k)(1). The parent separately consented to the summer services (Ex. SD-10). While Ms. gave testimony on the nature of the instruction that the student would received had she attended the summer 2010 program, Ms. could not confirm whether or not she would have provided instruction to the student during the ten (10) month school year (R. 163, 180, 203, 208-214). Ms. , an assistant principal at , confirmed that the nature of instruction during the ten (10) month school year would differ from the instruction provided to students attending the summer 2010 program (R. 371-372, 374, 376). Given the functional distinction between the summer and ten (10) month program, I do not find Ms. ’s testimony credible to the issue of whether the DOE offered the student a structured, program for school, where she could improve her and skills. Apart from Ms. ’s testimony, no other evidence was offered by the DOE on which I could find that it offered the student personalized instruction from which she could meaningfully benefit.

Similarly, I find that the DOE failed to meet its burden of proof in establishing that it offered the student sufficient support services to permit her to benefit educationally from recommended instruction. The parent has alleged that the student required a paraprofessional (Ex. SD-2 at 3). While in grade (2007/08 school year), the student received “a paraprofessional to aid her and supervise reportedly , and ‘ ” (Ex. SD-9 at 1). The CSE’s IEP for the student for the 2010/11 school year noted that she continued to have “ which comprise ” (Ex. SD-4 at 5). While the IEP suggests that this need will be remediated through , the recommended is devoted only to improving the student’s (Ex. SD-4 at 5, 7).

C. Appropriateness of

Given my finding that the DOE failed to provide the student with a FAPE during the 2010/2011 school year, I turn to the appropriateness of the parent’s private program. With respect to the second criterion for an award of reimbursement, the parent must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).

Based on the credible testimony offered by Dr. , Ms. , Director of Academy, Ms. , a special education teacher at , , a , Mr. , a special education teacher at and the parent, I find that was an appropriate placement for the student because it provided her with specifically designed, individualized instruction to meet her unique educational needs.

is a small school that serves students between the ages of ( ) and ( ) (R. 226-227). For the 2010/11 school year, the student was enrolled in the at , which is a modified school program that provides a balance of academics, skills and development for students who display a level of , and skills (R. 273, 284-285). The program incorporated core academic subjects consisting of , with classes in skills, , skills, and skills (R. 227, 285, 290). The program also provided supported community educational experiences (which provided students with opportunities to practice and generalize skills learned in class), individually-tailored service internships and travel training (R. 228-231, 236-238, 241-243, 390, 394, 415, 445, 447, 450, 479-480; Exs. P-D, P-G at 12). Dr. and Ms. testified that the student participated in the service internship program during the 2010/11 school year where she was paired with a job coach to support her, as needed, in her work setting (R. 231, 243, 285, 450-451; Ex. P-G at 13).

also provided the student with and services at her IEP mandated levels with close collaboration between the student’s related service providers and teachers (R. 232, 243-244, 275, 301-302, 384, 444, 469; Exs. P-E, P-F, P-G). In addition to the support the student received in , the student received additional skills support in a class (R. 234; Exs. P-E at 12, P-F at 13, P-G at 14). The student also received appropriate services at from Ms. in a skills class of ( ) students which met ( ) times per week for ( ) minutes per session

(R. 383-387). This addressed the student’s , and and and skills to in the community (R. 385).

also addressed the student’s needs during the summer of 2010 by providing her with a balanced program of academic instruction and social and community inclusion experiences, as well as related services and other support, which allowed her to maintain her skills over the summer (R. 445-447, 450-455).

D. Relevant Equities

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 U.S. App. LEXIS 20967 (2d Cir. Aug. 9, 2006). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.

In a letters dated June 16, 2010 and September 1, 2010, the parent gave the DOE adequate written notice of her intent to make a unilateral placement of the student at at public expense for the 2010/11 school year (Exs. P-B, P-R). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no contention or evidence indicating that the student’s parent was with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), or that the cost of the student’s tuition to was unreasonable (Exs. P-H, P-I, P-J), see Carter, 510 U.S. at 16.

Alternatively, while the DOE contends that the parent never intended to place the student in public school for the 2010/11 school year because she signed an enrollment contract with on April 30, 2010 (which was well after the January 7, 2010 CSE meeting), the parent’s pursuit of a private school is an insufficient basis for denying a claim for tuition reimbursement absent any evidence of her failure to cooperate with the development of an IEP or her interference with the selection of an appropriate placement by the DOE (Exs. SD-4, P-I, P-J). Cf. T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009); Carmel Cent. Sch. Dist., 373 F. Supp. 2d at 417-18.

E. Relief

“Where . . . parents lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so – parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief.” Mr. & Mrs. A., 769 F. Supp. 2d at 428. Since the parent has selected as the unilateral placement, and her financial status is at issue, the parent carries the burden of production and persuasion with respect to whether she has the financial resources to “front” the costs of and whether she is legally obligated for the student’s tuition payments. See, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 12-004 at 16 (SRO March 19,

2012).

The parent has established that there was a lack of financial ability to "front" the student's tuition costs for the 2010/11 school year. The parent incurred an obligation to pay tuition in the amount of $50,850, for the student’s enrollment at ’s twelve-month program during the 2010/11 school year (R. 502; Exs. P-H, P-I, P-J). In an affidavit dated April 26, 2011, Ms. , Vice President of Finance and Administration at , swore under oath that the parent remains responsible for this obligation (Ex. P-H).

The parent is and on (R. 503). The parent is , and her ( )

children live with her (R. 492, 505). The parent’s income from in 2010 was approximately $ per year, and the student also had income for the year of approximately $ (R. 503; Ex. P-N). The income was the family’s entire income for

2010, although the parent is now receiving additional income in the form of from her in the amount of $ per month (R. 503-504). The parent’s is , and she does not own or , nor does she have any assets to draw on to pay the student’s tuition

(R. 504-505). The parent’s financial circumstances have prevented her from making any payments toward the $50,850 tuition obligation she incurred for enrolling the student in ’s twelve-month program (R. 502-504).

Alternatively, I do not find that the absence of a payment plan from the enrollment contracts (for summer 2010 and the 2010/11 ten month school year) evidences

“collusion” between and the parent as alleged by the DOE (Exs. IHO-XVI at

23, P-H, P-I, P-J).

F. Reimbursement, or Compensatory Education, for Related Service

As no evidence was provided by the parent of having secured private related services for the student during the 2010/11 school year (other than those included in the cost of ’s tuition), or that the student was denied related services by the DOE prior to the 2010/11 school year, the parent’s claim for reimbursement for related services, see, e.g., Application of a Child with a Disability (New York City Dep’t of Educ.), Appeal No. 02-007 (SRO December 24, 2002), and/or compensatory additional services, see, e.g., Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep’t 2005), is denied (Ex. SD-2 at 4).

G. Transportation

The parent’s request for reimbursement for transportation costs to and from during the 2010/11 school year is also denied (Ex. SD-2 at 4). Part B of the IDEA and its implementing regulations do not require local educational agencies (“LEAs”), i.e., school districts, to provide transportation to and from school for a child with a disability unilaterally placed by his or her parents in a private school. See 34 C.F.R. §

300.139(b)(1)(ii); Letter to Luger & Weinberg, 58 IDELR 199 (OSEP Dec. 6, 2011).

The New York Education Law, in contrast, requires that school districts provide a disabled student with suitable transportation up to a distance of fifty (50) miles to and from a nonpublic school for the purpose of receiving services or programs similar to those recommended by the local CSE in the student’s IEP. See N.Y. Educ. Law §

4402(4)(d); Application of a Student with a Disability (Huntington Union Free Sch.

Dist.), Decision No. 13,209, 33 Ed. Dept. Rep. 712, 715 (Comm’r of Educ. June 22,

1994).

Here, as there were no bills or other evidence of the actual transportation costs incurred by the parent, I must dismiss this aspect of the parent’s claim in the absence of any evidence of such expenditures. See Application of the Bd. of Educ., Appeal No. 01-

012 (SRO Dec. 19, 2001).

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT ISHEREBY ORDERED THAT:

(1) the parent’s claim for tuition reimbursement and/or direct payment of the student’s tuition to the Academy for the 20101/11 school year is

GRANTED;

(2) within thirty (30) days of the date of this Order, the DOE shall reimburse the parent and/or directly pay to the Academy all costs associated with the student’s placement at for the 2010/11 school year;

(3) the parent’s claim for reimbursement of transportation for the student to and from the Academy for the 2010/12 is DENIED; and

(4) the parent’s claim for reimbursement of the cost of related services from September 2010 through June 30, 2011 (other than those included in the cost of ’s tuition for the 2010/11 school year) is DENIED. Dated: July 3, 2012

______________________________

JEFFREY J. SCHIRO, ESQ.

Impartial Hearing Officer

JJS: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 ON DECEMBER 12, 2011

PARENT

A. [Reserved]

B. Letter to CSE from parent, 6/16/10, 1 pg.

C. Individualized Education Program (IEP), 3/10/09, 12 pgs.

D. Academy Program Description, 9/09, 4 pgs.

E. Academy Progress Report, First Review, 12/10, 14 pgs.

F. Academy Progress Report, Second Review, 3/11, 15 pgs.

G. Academy Progress Report, Third Review, 6/11, 16 pgs.

H. Affidavit of , 4/26/11, 1 pg.

I. Enrollment Contract Summer 2010, 7/31/10, 1 pg.

J. Enrollment Contract 2010/11 School Year, 4/30/10, 2 pgs.

K. Attendance Report Summer 2010, 2/13/11, 1 pg.

L. Attendance Report 2010/11 School year, 9/12/11, 1 pg.

M. Academy, Class Schedule, 2010/11, 1 pg.

N. 2009 Federal Income Tax Return, 4/26/10, 2 pgs.

O. NYSED Teaching Assistants’ Certification Requirements, 3/2/11, 4 pgs.

P. NYCDOE Paraprofessional Certification Requirements, 3/2/11, 2 pgs.

Q. NYCDOE Qualifications for Employment as Full-Time Paraprofessional, undated, 2 pgs.

DEPARTMENT OF EDUCATION

1. Due Process Complaint Notice/Impartial Hearing Request, 9/6/11, 5 pgs.

2. Due Process Complaint Notice/Impartial Hearing Request (corrected), 9/19/11, 5

pgs.

3. NYC DOE Due Process Response, 9/13/11, 3 pgs.

4. Individualized Education Program (IEP), 1/7/10, 12 pgs.

5. CSE Minutes, 1/7/10, 2 pgs.

6. Final Notice of Recommendation (FNR), 6/30/10, 1 pg.

7. Notice of Deferred Placement, 1/7/10, 1 pg.

8. Classroom Observation, 11/17/09, 1 pg.

9. Assessment, 1/4/08, 6 pgs.

10. Twelve-Month Consent Form, 1/7/10, 1 pg.

11. Report, 11/09, 12 pgs.

IMPARTIAL HEARING OFFICER

I. Letter to parties from IHO, 9/23/11, 5 pgs.

II. Confirmation of Extension, 10/11/11, 1 pg.

III. E-mail (Parent objections to DOE subpoena), 10/24/11, 4 pgs.

IV. E-mail (DOE response to Parent’s subpoena objections), 10/24/11, 2 pgs.

V. E-mail (Parent reply to DOE response re: subpoena), 10/24/11, 2 pgs.

VI. E-mail (DOE sur-reply to Parent’s subpoena objections), 10/25/11, 2 pgs.

VII. Letter to parties from IHO re: rulings on subpoenas, 11/13/11, 2 pgs.

VIII. Signed Subpoena, 11/13/11, 4 pgs.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 1, 2012

PARENT

R. Letter to CSE from parent, 9/1/10, 2 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

IX. Confirmation of Extension, 12/12/11, 1 pg.

X. Confirmation of Extension, 1/18/12, 1 pg.

XI. Confirmation of Extension, 2/18/12, 1 pg.

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 18, 2012

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

XII. Confirmation of Extension, 3/8/12, 1 pg.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 4, 2012

PARENT

S. CCSA Schedule, 2010, 1 pg.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

XIII. Confirmation of Extension, 4/18/12, 1 pg.

DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING

PARENT

None

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

XIV. Confirmation of Extension, 5/4/12, 1 pg.

XV. Confirmation of Extension, 5/31/12, 1 pg.

XVI. DOE Closing Brief, 6/13/12, 27 pgs.

XVII. Parent’s Closing Brief, 6/13/12, 25 pgs. XVIII. Confirmation of Extension, 6/22/12, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”

[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses or closing briefs on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 184-185, 429-430, 522-524; Exs. IHO-II, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV, IHO-XV, IHO-XVIII).

[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[4] Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for student determined to be eligible in accordance with sections 200.6(k)(1) and 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR § 200.1(eee).

[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.