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: April 4, 2012

June 1, 2012

June 8, 2012

Actual Record Closed Date: October 23, 2012

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date DOE Representative DOE 04/04/12 06/01/12 06/08/12

(T) 04/04/12

(T) 04/04/12 Advocate PARENT 04/04/12 06/01/12 06/08/12

Mother PARENT 04/04/12 06/01/12 06/08/12

(T) Principal PARENT 06/01/12

(T) ABA Director PARENT 06/01/12

Dr. (T) PARENT 06/01/12

(T) PARENT 06/01/12

SETSS/ABA/Sign Teacher PARENT 06/08/12

(T) PARENT 06/08/12

(T) PARENT 06/08/12

On December 30, 2011, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1) and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a student attending a private school and the New York City Department of Education (“DOE”) , concerning the student’s special education program. After adjournments were granted on consent or for cause, the impartial hearing was held on April 4, 2012, June 1, 2012 and June 8, 2012. The parties opted to submit written closing statements that were due and received on or about July 6, 2012. (T-262-5) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

This case involves a ( . (See Parent’s Due Process Complaint - “DPC”) The Parent alleges that the student’s Individualized Education Program (“IEP”) dated May 27, 2011 is procedurally and substantively flawed and that the Committee on Special Education’s (“CSE”) recommendation of a specialized class with a student to staff ratio and related services of and is inappropriate for the student. (Id.) The Parent had brought a previous claim for the 2010-2011 school year that was resolved in a Statement of Agreement & Order. (Id.) The Parent states that she served “notice” to the DOE in June of 2011 that she was placing the student in a New York State approved . (Id.) On August 4, 2011 she notified the DOE of the student’s unilateral placement at the private school for the 2011-2012 school year. (Id.) At the impartial hearing, the Parent seeks the following relief:

(a) “direct payment” and/or reimbursement for the student’s tuition at the private school and the student’s New York State approved for the 2011-2012 school year; and

(b) provision of and reimbursement for the costs of the student’s related services at the private school for the 2011-2012 school year; and

(c) school bus transportation to and from the private school for the student’s 2011-2012 school year.

THE DOE’S CASE

The DOE argues that the student is classified as having and was receiving . (T-8) She was “aging out of a “ self-contained class” where she was making . (Id.) At the annual review which took place on May 27, 2011, the student was recommended to continue in class. (T-8-9) The student’s current private school will not meet her academic and . (T-9)

The DOE called (2) witnesses to testify on its behalf and submitted (7) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the DOE is as follows:

The DOE’s first witness is the the student was in. (T-12) She has a “CRMD” and an assistant principal license. (T-14) She attended the student’s IEP meeting on May 27, 2011. (T-15-6) Also present was the teacher, the Parent, the , the and the supervisor. (T-17-8) The student was a and would , the , would not . (T-19) However, that changed by the time she left the school and her was consistent with that of everyone else in the class. (T-20) Associated with the student’s classification of having “ ” is , , . (Id.) They recommended that the student remain in a program. (T-21) Once the student’s s came . (Id.)

The witness stated that the student started to work really well with a (“ ”). (T-21-2) Their main goal was to . (T-22) The Parent had some issue with which is what the had recommended. (Id.) The “ ” is a binder that the student has with approximately ( . (T-25) The Parent wanted them to and . (T-26) The SETSS teacher had of the student and would . (Id.) That . (T-27) The recommended DOE class has a structured environment. (T-28) Related services take place in the school building. (Id.) The student would be pulled out related services , periods a day for -minutes sessions in a -month program. (T-28-30)

The witness stated that she is not sure if the student’s classification was discussed at the IEP meeting, but her program recommendation definitely was discussed. (T-30) It was agreed upon that the student had been appropriately placed. (T-30-1) The student made a lot of in her program. (T-33) The student responded to the plan and her . (T-34) The student attended her program for either or years and then . (T-35-6)

On cross examination, the witness testified that the student’s IEP meeting was an “annual review.” (T-36-7) They use the New York State alternate assessment and the student was performing at a . (T-38) At times, the student would exhibit - but she could be . (T-39) (Id.) The student would actually “ ” herself, which is something that they do not do. (T-40) During the 2010-2011 school year, the student’s . (Id.)

The witness stated that the student had more “ like s” because she was in an program from the . (T-41) Children that are and do get , but she does not believe that the student was “ .” (Id.) The student’s was , which is consistent with . (T-42) During 2010-2011, the student became a . (Id.) She knows from reading the student’s IEP and report that she succeeded in academics. (T-45)

The witness stated that the Parent wanted to look around at different programs. (Id.) They could not recommend a because they offered a program during the . (T-46) They were trying to tell the Parent that putting the student into a group for . (Id.) The Parent also wanted the student to be in a program that signs, which they do not do. (T-47) The student uses basically the same signs they use. (T-48) The Parent requested that the student have a signing paraprofessional and that her afterschool services continue. (T-49) During the 2010-2011 school year, the student was receiving a except for and made in the program. (Id.) The student was also receiving . (T-49-50)

On re-direct examination, the witness testified that they use “ .” (T-54) The student’s teacher did not use . (Id.) On re-cross examination, the witness stated that there was no mention in one of the reports. (T-56)

The DOE’s second and final witness met the Parent when she visited the recommended DOE school. (T-58) She is an assistant principal that has worked for the DOE for (15) years. (T-60) The recommended DOE school has math programs, “Get Ready to Learn”, TEACCH, “Edmark”, Math Equals, Touch Math and all of the classes are special education classes. (T-62) They have . (Id.) They are a , data driven, technology rich school, with individual student portfolios, a unified curriculum, parent raining and programs that are very much aligned to common core standards. (T-63) The student would be “very similar” to the other students in the class in communication, math and reading. (T-64-5) There was a seat available for the student at the beginning of the 2011-2012 school year. (T-65)

The witness stated that they use several assessment tools and differentiate instruction tailored to meet the needs and styles of the student. (T-66) Reading and math is infused into everything and they also have “ .” (T-67) During the walkthrough, the Parent was adamant that she did not want a . (T-68) She told the Parent that she could not guarantee a teacher. (T-69) The Parent was pretty adamant about wanting one teacher and asked about the other students in the class. (Id.) She could not disclose confidential information about what other students in the class were able or not able to do. (T-69) She did give the Parent a generic overview of what a classroom is like and told her that the student’s needs would be met because they were of her peers. (Id.) The Parent seemed to have a preset mind that she did not necessarily . (T-70)

On cross examination, the witness testified that everything is tentative until September, but there was a seat in a class. (T-72-3) She cannot guarantee that the teacher in the Spring is going to be the same teacher in September. (T-74) There are ( ) classes with students aged ( ) to ( ) and they are able to provide all of the mandated related services. (T-75) She has not personally observed the student. (Id.) The program is open during the . (T-76)

On re-direct examination, the witness testified that parents can visit the school before they accept the placement and the Parent visited in April. (T-77) There was no re-cross examination of the witness. (T-78)

THE PARENT’S CASE

The Parent argues that the student is . (T-9) At the student’s IEP meeting the Parent requested a because the student is a 12-month student, a re-evaluation, an ABA program and a paraprofessional who is familiar with signing. (T-10) The DOE did not offer the student a FAPE and the Parent notified the DOE of the same. (T-10-1)

The Parent called (7) witnesses to testify on her behalf and submitted (22) documents into evidence. In sum, substance and relevant part, the testimony on behalf of the Parent is as follows:

The Parent’s first witness is the principal of the private school. (T-84) She said they service students with a diagnosis of . (T-88) They are a 12-month school for students that are . (T-89) They have special education teachers, teacher assistants, instructors, a school nurse, administrative staff and a full therapy staff. (T-89) The students have individualized programs. (T-90) They use Applied al Analysis (“ABA”) analysis and the principals of Developmental Individual Relationship (“DIR”). (Id.) “ ” is a type of therapy under the DIR heading that works on building through developmental levels. (T-91) They have numerous training sessions throughout the year. (Id.)

The witness stated that for the 2011-2012 school year they had , , , . (T-92) There are (Id.) The student attended the school beginning in September of 2011. (T-93) She presents with a dual of and . (Id.) She is minimally system, and an . (T-94) She uses some standardized signs and some signs that are not standardized except for her. (Id.) She has and a “ intervention Plan (“BIP”) that they put in place for her. (T-95) The staffing ratio at the private school is . (T-97) The student’s teacher has a Master’s degree in Special Education. (T-98)

The witness stated that the principles of ABA are a very efficient means of working with the student. (Id.) DIR really addresses the student’s deficiency in “circles of .” (T-99) The student has in her and on . (T100-1)

On cross examination, the witness testified that related services at the private school continue during the . (T-103) The student started out at three plus circles of communication and now is up to approximately ( ) circles of . (T-104) The student at times needs some , but they always want . (T-105) The private school has an elevator for whoever needs it. (T-106) They use the ABLLS which is an assessment tool. (Id.) The student with everyone at the private school. (T-108) They work closely with the student’s mother and home provider to train everyone at the private school as to what the student is signing. (Id.) They introduce . (Id.)

The witness stated that one of the student’s is of . (T-109-10) They have for students who it is appropriate for. (T-110) Most are not going to , functional information for the student in terms of planning a program. (T-111) It is more appropriate to look at what the student can do. (Id.) The uses the “Affect Based Language Curriculum.” (Id.) There are opportunities at the private school for the student to be in a group setting, but with support. (T-112) This was the student’s first year at the private school so they did not provide the goals that are on the IEP. (T-113) For the student’s new IEP going forward, they wrote all of the goals. (Id.) There was no substantive testimony developed during the witness’ re-direct and re-cross examination. (T-114-6)

The Parent’s second witness is a Special Education teacher who is the ABA/Director/Curriculum Specialist at the private school. (T-117) She has worked with the student and the classroom staff on a daily basis, incorporating curriculum. (Id.) She spoke with the family and the home staff, reviewed the student’s records, assessed her using ABLLS and then designed the student’s curriculum based on the results. (T-121) The student’s individualized curriculum consist of , . (T-121-2) The student is to , being and she can be . (T-124) The student . (Id.)

The witness stated that the student has intervals throughout the day when she can . (T-125) “ ” for the student was more of a that was incorporated through the methodology of Floor Time. (T-129) The student’s is measured through the day. (T-132) The student is now able to , and has made in . (T-133) She has . (Id.) The private school is appropriate for the student because she to . (T-135)

On cross examination, the witness testified that she works with the student to times a week in the classroom. (T-136) Almost every day they assess the student. (Id.) If the student achieved all of the goals that the ABLLS is assessing, then the next thing would be to go into a beginning reading curriculum or program or beginning math. (T-140) The student’s changes at different times throughout the day so that she does . (T-141) When the student masters a task, it is reviewed. (T-144) The student does of the programs. (T-146) The student has that she with and they make sure . (T-148)

On re-direct examination, the witness testified that they found that in a situation they are able to address a lot of the student’s s and . (T-150) There was no re-cross examination of the witness. (Id.)

The Parent’s third witness evaluated the student a number of times and most recently on April 30, 2012. (T-152) He is a . (T-154) The student is diagnosed with as well as . (T-156) In April of 2012, she had skills, her was , she still had a short , she was more than in the and seemed . (Id.) The student’s home program and services remain necessary to help her generalize. (T-157)

On cross examination, the witness testified that he first evaluated the student on June 15, 2009. (T-158) He uses notes from the school, reports from any service providers, spends time with the student’s with the student for about ( . (T159-60) Differentiating between and is not . (T-160) There are s that are similar to both and . (T-161) The of the specific systems is what really makes the differentiation. (T-162) He was not the first person to diagnose the student with . (Id.) There was no re-direct examination of the witness. (T-163)

The Parent’s fourth witness is the student’s . (T-164) She has more than

(25) years of experience in . (T-168) She sees the student times per week, for ( ) minutes in the . (T-169-70) She is in the student’s classroom every day. (T-170) She has established goals for the student by first doing a clinical observation, then using a “ ” test and finally a “ .” (T-173-4) The student is “getting” her goals but her . (T-175-6)

On cross examination, the witness testified that she does not know if her goals coincide with the IEP because she has not seen it for a long time. (T-178) She provides the student’s sessions individually and follows the IEP mandate of “ times ( ) minutes.” (Id.) When told that the IEP actually requires “ times a week for ( minutes”, the witness responded that times a week is mostly what their kids get and that the student is actually receiving more services than her IEP requires. (T-179) There was no re-direct examination of the witness. (T-181)

The Parent’s fifth witness is the student’s . (T-191) She works with the student times per week for ( minutes per session. (T-195) The student uses mostly and also an on the called the “ .” (T-196) The student can follow basic steps. (Id.) She is also an “ .” (Id.) One of the student’s goals was to improve her and to with ” device. (T-197) The student independently uses an . (T-197-8) She through some of working at home with her. (T-198) The student has about ) . (T-199) The witness stated that she gives the student outside of the classroom so that it can be because she is . (T-199) She has been able to reduce her s. (T-200) The student is and . (T-201)

On cross examination, the witness testified that she goes through the student’s signs and makes sure that they are shaped and modeled so that they can be effective. (T-

202) The student is able to . (T-203) Although the student’s IEP mandates services ) per week individually and ) times ( ) per week in a group, she provides services for ( ) times per week. (T-207) There was no substantive testimony developed during the witness’ re-direct examination. (T-207-8) There was no re-cross examination of the witness. (T-208)

The Parent called a sixth witness who has been the student’s at- for the school years. (T-209-10) The witness’s testimony was and because the Parent’s fifth witness was a who gave testimony including but not limited to the student’s and the Parent’s DPC does not request at-home services. (T-210-12)

The Parent’s seventh and final witness is the student’s mother. (T-212) She stated that the student was born with called “ ” had been initially missed. (T-

213) A “ ” finally treated the but it left the student with and and features. (T-213-4) When the family lived in , the student received Early Intervention services, including . (T-214) The student also received ABA services at home. (Id.)

The witness stated that the family . (T-215) The student attended a “ ” placement in a public school for one year. (Id.) The public school agreed that the student needed to be because she had developed s. (T-216) The student’s recommendation was subsequently changed to a placement where the students were . (T-216-7) The student remained there for the next years and . (T-217) However, she does not believe that it was an appropriate placement for the student because it did not have ABA or . (T-217-8) ABA is the only that she has seen the student with. (Id.) The teacher was good and the students were excellent peer models for the student in that they were . (T-218)

The witness stated that the student had been provided with a “ ” device, which . (T-219-20) The DOE also gave the student a “ ” but it was too . (T-220) She asked the DOE to give the student a “ ” but they told her that the student . (Id.) She also asked the DOE for “ABA”, but there were almost no programs that offered it. (T-227) Most of the programs she looked at did not have spots. (T-228) She rejected the DOE offer in this case because it did not have ABA and they were only willing to do very with the student. (T-229)

The witness stated that she witnessed one class where they were and the teacher . (T-231) She was told by the staff that they were because she was . (Id.) At the other , the teacher was , which is really not the type of teacher for the student. (Id.) She does not believe that there was a problem with the DOE’s related service recommendations. (Id.) She chose the private school because it has ABA and they know . (T-231-2) They also with the approach with . (T-232)

The witness stated that at the private school, she has never witnessed the student exhibit s and she gets more than her . (T-233) At the IEP meeting, she was present along with the coordinator and the teacher. (T-234 & D-1) She does not think that the supervisor was at the meeting. (T-235) She is sure that she requested that the student’s home program be continued. (Id.) She requested an appropriate placement with ABA, and appropriate peers. (Id.) She also requested that the student be able to attend a . (T-236) The DOE said that they were not allowed to give a . (Id.) The DOE also did not give her a paraprofessional. (T-237) She is sure they discussed the student’s annual goals. (Id.)

The witness stated that she saw the private school when she to but “ ” when she heard the tuition. (T-238) She did send the student to the private school for the 2011-2012 school year. (Id.) The tuition is $ for the 2011-2012 private school year. (T-239 & P-L) So far, she has paid . (T-240) She has ( and while their , their . (T-241) The family has $ . (Id.) She a so she has a school. (T-242) The student has at the private school to them, is , is “ ” people and her and academics have also . (T-242-3) The private school also provides parent training. (T-244)

On cross examination, the witness testified that the did at the public school. (T-246-7) Combined with the student’s home program, the while at the public school. (T-247-8) Most of the time, the student does find a way to . (T-249) The public school always just uses TEACCH. (Id.) She did not see much individualized teaching there. (T-250) The student had ABA at home, additional , additional and additional at home, but the public school always wanted to say that any that was . (T-251)

The witness stated that at the private school, the student is with (5) other students who all have . (T-253) The students in her classroom . (T-255) While at the private school, the student has not come home with or development of s like in the past. (Id.) The reason the DOE did not give her a is because they had their own program. (T-257) If she does not prevail at this hearing, she will have to take . (T-258) There was no re-direct examination of the witness. (Id.)

During voir dire, the witness testified that she has not made tuition payments to the private school according to the

The private school has called her and asked her for payment. (T-

259) If need be, she would have to the . (T-260) The private school told her that they are going to . (Id.) She has received bills and invoices from the private school, but against her. (T-261)

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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 and 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 an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

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]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce , not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE 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] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and 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 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02014 and 01-105) 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 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) 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 parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition 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 child from public school, or by written notice ten 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] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered 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]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049).

I first turn to the question of whether the DOE offered the student a FAPE for the 2011-2012 school year. As stated above, a FAPE is offered to a student when (a) the DOE 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 and Cerra, supra) Accordingly, I must first decide whether the student’s CSE was duly constituted under law on May 27, 2011.

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the record shows that the student’s CSE team on May 27, 2011 was composed of the Unit Coordinator (as the District Representative), the Parent, the student’s teacher, her and her supervisor. (T-15-8, 234 & D-1) The Parent stated that she “did not think” that the supervisor was at the meeting, but the IEP indicates that she did not sign in. (T-235 & D-1) Accordingly, I find that the student’s CSE team on May 27, 2011 was duly constituted under law.

As also stated above, 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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09)

The record does not evidence what specific documents were reviewed by the CSE on May 27, 2011. However, a psycho-educational evaluation was received into evidence dated April 28, 2008. (D-5) Federal and State regulations mandate that each student with a disability be reevaluated at least once every three years. (See 34 C.F.R. § 300.303[b][2] and 8 NYCRR 200.4[b][4]) As such, the April 28, 2008 psycho-educational evaluation was relevant to the CSE meeting on May 27, 2011. The April 28th psycho-educational evaluation states in sum, substance and relevant part:

[student’s name] has been diagnosed with

. (D-5)

The DOE also prepared a “Social History Update”, also dated April 28, 2008 that was received in evidence. (D-6) The report notes that the Parent “…is not pleased with [student’s name] and feels that she requires a referral to CBST (“Central Based Support Team”) for a non-public school setting.” (Id.) The report also states that the Parent reported that she believes that due to the student’s change in schools, she is no longer engaging in s and that the teaching (at the public school) is better. (Id.) The Parent is also quoted in the report as saying that she is with the student’s home based team, that she would like the student in a smaller setting that uses ,“ ”, devises and ABA teaching techniques. (Id.) The student’s private . (Id.) The report concludes as follows:

[Parent’s name] noted that she believes that [student’s name] will regress if her home based services are not renewed. She questioned the availability of a “ ” class to see if this would meet [student’s name] needs.

Parent feels the only way to find a unique setting to meet her daughter’s varied and unique needs would be through a CBST referral. (Id.)

The Parent submitted a into evidence dated May 11, 2011. (P-H) The report notes that the student’s skills are but . (Id.) The student’s ability to is said to be “…very limited in the classroom setting and she responds much better to a ABA approach.” (Id.) The student’s is said to remain a and she is said to have a history of and ally when ABA teaching is stopped for any significant period. (Id.) is said to not only help the student by allowing her to and wants, but it also helps her . (Id.) The report concludes by recommending ( ) hours a day of ABA is school, continuing SETSS services at home, use of ,a , related services of and and a /educational program that mirrors the recommendations for the student’s , development. (Id.)

The student’s IEP dated May 27, 2011 notes that according to the student’s New York State Alternate Assessment, she is performing at a . (D-1) The CSE did not recommend a BIP for the student and noted that she could with . (Id.) The CSE also recommended that the student have an at school and at home. The student is anticipated to meet ( ) goals identified on the IEP. (Id.) The CSE maintained the student’s placement in a special class in a specialized school, but did not continue the student’s home SETSS services. (Id.) The entire student’s related services were continued and the student was recommended for services for 12-month school year. (Id.) The IEP further notes that “General Education” and a “Special Class in a Community School” would not meet the student’s needs because she requires “ .” (Id.) All of the Parent’s requests that she testified to are noted on the IEP which also provides the student with special transportation accommodations. (Id. & T-235-7)

The Parent acknowledged that the student had been in the same recommended setting for years, with student’s that were , and did . (T-216-7) She also acknowledged that the student’s school setting, but also noted that the student was receiving home services at the time. (T-246-8) The said that by the time the student left the DOE school, her was consistent with that of everyone else in her class and she started to excel. (T-20-1) The student’s and she became a . (T-34, 40, 42 & 45)

The DOE Unit Coordinator testified that their main goal at the IEP meeting was to integrate the student with her peers, i.e., “mainstream” the student as much as possible. (T-

22) This was resisted by the Parent when they told her that putting the student into a “group” for was her next step. (T-46) It is important to note that despite her disabilities, the student was according to the New York State Alternate Assessment. (T-38 & D-1)

The IDEA requires that a student's recommended program must be provided in the “Least Restrictive Environment” (“LRE”). (See 20 U.S.C. § 1412[a][5][A], 34 CFR § 300.114[a][2][i] and § 300.116[a][2], 8 NYCRR § 200.1[cc], 200.6[a][1], Newington, 546 F.3d at 111, Gagliardo, 489 F.3d at 105, Walczak, 142 F.3d at 132 and Patskin, 583 F. Supp. 2d at 428)

In determining an appropriate placement in the LRE, the IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. (See 20 U.S.C. § 1412[a][5][A], 34 CFR § 300.114[a][2][i], § 300.116[a][2], 8 NYCRR § 200.6[a][1], Newington, 546 F.3d at 112, 120-21, Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 [3d Cir. 1993], J.S. v. North Colonie Cent. Sch. Dist., 586 F. Supp. 2d 74, 82 [N.D.N.Y. 2008], Patskin, 583 F. Supp. 2d at 430, Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 144 [N.D.N.Y. 2004] and Mavis v. Sobel, 839 F. Supp. 968, 982 [N.D.N.Y. 1993])

The placement of an individual student in the LRE shall "(1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home." (8 NYCRR § 200.1[cc], § 200.4[d][4][ii][b] and 34 CFR § 300.116) Consideration is also given to any potential harmful effect on students or on the quality of services that they need. (See 34 § CFR 300.116[d] and 8 NYCRR § 200.4[d][4][ii][c])

State and Federal regulations also require that school districts ensure that a continuum of alternative placements be available to meet the needs of students with disabilities for special education and related services. (See 34 CFR § 300.115 and 8 NYCRR § 200.6) The continuum of alternative placements includes instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; and the continuum makes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement. (See 34 CFR § 300.115[b])

To apply the principles described above, the Second Circuit adopted a two-pronged test for determining whether an IEP places a student in the LRE, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. (See Newington, 546 F.3d at 119-20, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1048-50 [5th Cir. 1989]) A determination regarding the first prong, (whether a student with a disability can be educated satisfactorily in a general education class with supplemental aids and services), is made through an examination of a non-exhaustive list of factors, including, but not limited to "(1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class." (See Newington, 546 F.3d at 120, North Colonie, 586 F. Supp. 2d at 82, Patskin, 583 F. Supp. 2d at 430, Oberti, 995 F.2d at 1217-18 and Daniel R.R., 874 F.2d at 1048-50)

The Court recognized the tension that occurs at times between the objective of having a district provide an education suited to a student's particular needs and the objective of educating that student with non-disabled peers as much as circumstances allow. (See Newington, 546 F.3d at 119, citing Daniel R.R., 874 F.2d at 1044) The Court explained that the inquiry is individualized and fact specific, taking into account the nature of the student's condition and the school's particular efforts to accommodate it. (See Newington, 546 F.3d at

120) If, after examining the factors under the first prong, it is determined that the district was justified in removing the student from the general education classroom and placing the student in a special class, the second prong requires consideration of whether the district has included the student in school programs with nondisabled students to the maximum extent appropriate. (See Newington, 546 F.3d at 120) The Second Circuit left open the question of whether costs should be taken into account as one of the relevant factors in the first prong of the LRE analysis. (See Newington, 546 F.3d at 120)

Apply the test above based upon the record, I find that the student can receive a satisfactory educational benefit in the recommended DOE placement and that said placement, with the use of supplemental aids and services “mainstreams” the student to the maximum extent appropriate. (supra) The recommended setting provides the student with the intensive adult supervision she requires. The student would receive her related services on a pull-out basis individually and in a group. The student would have been placed with students “very similar” to her in communication, math and reading and there was a seat available to her at the recommended DOE school. (T-64-5)

As stated above, school districts are not required to "maximize" the potential of students with disabilities. (Rowley and Grim, supra) They just need to provide "an IEP that is 'likely to produce , not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, P. v. Newington Bd. of Educ. and Perricelli, supra), and which is "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ. and Rowley, supra) in the least restrictive environment (“LRE”). (supra) The record before me does evidence that the DOE produced such an IEP for the student on May 27, 2011. Accordingly, I find that the DOE offered the student a FAPE for the 2011-2012.

Having found that the DOE offered the student a FAPE, the necessary inquiry is at an end and I need not determine whether the student’s private school placement is appropriate for the 2011-2012 school year, or whether equitable consideration bar an award on behalf of the Parent.

I note for the record that it appears the instant claim was brought on behalf of the non-party private school and not the Parent in this case. The United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71 and Gagliardo v. Arlington Cent. Sch. Dist., 2007 WL 1545988 at *6 (2d Cir. May 30, 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school). However, reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses. (See Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, SRO No. 07-032, 20 U.S.C. §1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 [4th Cir. 2005]). Therefore, because the Parent has only paid $ towards the 2011-2012 tuition cost of $ under the circumstances of this case, I find that the Parent does not have standing to seek full “tuition reimbursement.”

There is ample evidence in the record that the Parent signed a contract with the private school. (T-242 & P-L) Yet, the Parent testified that she could not afford the tuition and has not the payments stipulated under the contracts payment plan terms. (T-259 & P-L) The Parent testified that she , all of whom the record shows are attending private schools, while the family . (T-241) Under the circumstances, it is hard to fathom how the private school and the Parent could believe that the Parent could ever pay the private school tuition. The Parent testified that she would have to if “need be.” (T-260) But the record does not explain why she did not take out a loan first, pay off the private school debt and then seek tuition reimbursement. That would be clear evidence of her having truly incurred a financial obligation to pay the private school tuition. Instead the record reveals that it was the private school who incurred the financial burden, not the student or the Parent. The private school is not a party in this case and is therefore not entitled to relief under the IDEA. What’s more, parents cannot assert a claim for relief on behalf of a private entity that lacks standing under the IDEA to maintain a claim against a school district in its own right. (See Emery, 432 F.3d at 299, Piedmont al Health Center LLC v. Stewart, 413 F. Supp. 2d 746, 755-56 (S.D. W.Va. 2006) and Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007)).

It is well settled that Parents who choose to unilaterally place their child at a private school without consent or referral by the school district do so at their own financial risk. (See Carter, 510 U.S. at 15, Burlington, 471 U.S. at 373-74 and Forest Grove, 129 S. Ct. at 2496) The United States Supreme Court in Burlington held that retroactive reimbursement of private educational expenses is appropriate as an available remedy under the IDEA. (See Burlington, 471 U.S. at pp. 370-71, Carter, 510 U.S. at 1415, Gagliardo, 489 F.3d at 111 (2d Cir. 2007), explaining that parents who believe that their child has been denied a FAPE may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school], Diaz-Fonseca v. Commonwealth of Puerto Rico, 451 F.3d 13, 32, 40 (1st Cir. 2006), concluding that reimbursement under the IDEA allows parents to recover only actual, not anticipated, expenses for private school tuition and related expenses, Cerra, 427 F.3d at 192, noting the availability of "retroactive tuition reimbursement" under the IDEA, Muller v. Comm. on Special Educ. of East Islip, 145 F.3d 95, 106 (2d Cir. 1998), holding that compensation for "out of pocket expenses" was appropriate, Streck v. Bd. of Educ., 2009 WL 2163090, at * 2 (N.D.N.Y. July 17, 2009) and Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir. 2005))

While the IDEA provides that a court shall grant such relief that is determined to be appropriate (20 U.S.C. § 1415[i][2][C][iii], Forest Grove, 129 S. Ct. at 2488), the IDEA does not expressly provide for prospective payment of tuition costs. The IDEA does provide that “a court or a hearing officer may require the “school district” to reimburse the parents for the cost of “private school” enrollment if the court or hearing officer finds that the school district had not made a FAPE available to the child in a timely manner prior to that enrollment.” (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.148[c] and SRO Nos.: 09-001, 07-032, 08-050 & 04-037)

The Parent herein is not entitled to prospective funding under Connors v. Mills. (See Connors, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998). In Connors, the Court dismissed the parents' claim for tuition and in dicta discussed the concept of "prospective" tuition payment after the Court made a finding that the school district conceded that it could not provide an appropriate education for the student and that the private placement could. (See Connors, 34 F. Supp. 2d at 806). In the instant case, the DOE has prevailed under the first Burlington criterion and I have found that the DOE did offer the student a FAPE for the 2011-2012 school year. Moreover, the DOE disputes the appropriateness of the student’s placement at the private school. (T-9) Therefore, under the circumstances of this case, the Parent is not entitled to prospective payment of tuition at the private school. (See 20 U.S.C. § 1412[a][10][C][ii], 34 C.F.R. § 300.403[c], Burlington, 471 U.S. 359, Carter, 510 U.S. 7, A.A. v. Bd. of Educ., 196 F. Supp. 2d 259 (E.D.N.Y. 2002) and SRO No. 07-032) I also note that there is nothing in the hearing record that supports a conclusion that this student cannot be appropriately educated in a public school setting with related services.

NOW therefore, it is hereby

ORDERED that the Parent’s request for:

(a) “direct payment” and/or reimbursement for the student’s tuition at the private school and the student’s New York State approved for the 2011-2012 school year; and

(b) provision of and reimbursement for the costs of the student’s related services at the private school for the 2011-2012 school year; and

(c) school bus transportation to and from the private school for the student’s 2011-2012 school year, must be DENIED. Dated: November 15, 2012

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

ED:gc

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 RECORD

Number/Letter Title Dated For # of Pages

01 IEP 05/27/11 DOE 21

02 04/28/11 DOE 03

Report

03 Report 05/06/11 DOE 04

04 & Report 04/13/11 DOE 03

05 Re-Eval. 04/28/08 DOE 04

06 Social History Update 04/28/08 DOE 03

07 Waiver for IEP Meeting 06/16/11 DOE 02

A Impartial Hearing Request 12/29/11 PARENT 05

B Program Description undated PARENT 01

C IEP 05/27/11 PARENT 16

D Ten-Day Notice 06/28/11 PARENT 02

E Ten-Day Notice 08/22/11 PARENT 01

F Report 03/09/12 PARENT 06

G Class Schedule 2011-2012 PARENT 01

H Evaluation 05/11/11 PARENT 04

I Letter to the CSE 06/06/11 PARENT 02

J Visits to Public Schools various PARENT 04

K Attendance Record 2011-2012 PARENT 01

L Enrollment Contract 2011-2012 PARENT 03

M Affidavits of Payment 2011-2012 PARENT 01

N Proof of Payment 2011-2012 PARENT 03

O Helping Hands Annual 05/2011 PARENT 05

Review

P Helping Hands Annual 04/2012 PARENT 05

Review

Q Evaluation 05/11/11 PARENT 04

R Evaluation 04/30/12 PARENT 05

S Notice of Recommendation 04/01/11 PARENT 01

T Report 03/26/12 PARENT 02

U Monthly Data Graphs 2012 PARENT 21

V 1040 Tax Return 2011 PARENT 02