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 9, 2012

April 16, 2012

May 30, 2012

June 4, 2012

June 11, 2012

June 18, 2012

July 9, 2012

July 16, 2012

Record Close Date: August 3, 2012

Hearing Officer: Stephen B. Haken, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 9, 2012

Attorney (via telephone) — Student

Attorney (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 16, 2012

Attorney (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 30, 2012

Attorney — Student

Parents

Attorney — DOE

Special Ed Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

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

Attorney — Student

Parents

Parents

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2012

Attorney, Law Offices of Lauren Baum — Student

Parents

Parents

Assistant Head of School, (via telephone) — Student

Attorney, — DOE

Special Education Teacher, (via telephone) — DOE

Special Education Teacher, (via telephone) — DOE

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

Attorney, Law Offices of — Student

Parents

Special Education Head Teacher,, (via telephone) — Student

Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 9, 2012

Attorney — Student

Parents

Social Worker (via telephone) — Student

Summer Session Director (via telephone) — Student

Attorney — DOE

Intern, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 16, 2012

Attorney, Law Offices of — Student

Parents

Attorney — DOE

Intern, — DOE

INTRODUCTION

This hearing was requested on February 20, 2012 by the parents, PATRICIA C. and MORRIS C. (PARENTS), of CHRISTINA C., the student (STUDENT). The hearing was requested, pursuant to the Individuals with Disabilities Education Act (“IDEA”),20 U.S.C §1415(f) and 1412(a)(10)(c), §504 of the Rehabilitation Act (504) and the United States Supreme Court decisions Burlington School Committee v. Department of Education, et. al., 736 F.2d 773 (1st Cir. 1984, aff'd at 471 U.S. 359, 105

S. Ct. 1996, 556 IDELR 389 (1985) (BURLINGTON) and Florence County School District v. Shannon Carter, et. al., 510 U.S. 7, 114 S. Ct. 361 (1993) (CARTER), to have the DEPARTMENT OF EDUCATION (“DOE”) pay tuition funding/ reimbursement to the (“COOKE”) for the 2011-2012 school year, funding/reimbursement of provision of appropriate transportation and related services, all on a twelve-month basis and the recovery of all related fees and disbursements as permitted by relevant statute.

I was appointed to hear the matter by the Department of Education of the City of New York (DOE). A Pendency Hearing was held on April 9, 2012. As the hearing began the attorney for the DOE, , Esq., stated that in preparing the DOE’s case she was not able to determine whether the DOE had actually consented to a prior pendency placement at the , as she believes the parent had filed an appeal which was settled. Accordingly, she was requesting a brief adjournment to discover the answer. Mr. stated that the Parent had no objection to a brief adjournment to do the requested research. An adjournment was granted to April 16, 2012, at which time the Pendency Hearing was completed. An order was submitted on May 2, 2012, ordering Pendency.

Hearings were held on 5/30/12, 6/4/12, 6/11/12, 6/18/12, 7/9/12, and 7/16/12 pursuant to IDEA at 20 U.S.C. §1415(f) and pursuant to §504. The 6/4/12 hearing had to be continued as the attorney for the Parents, , Esq. was ill and no replacement was available. SCOTT COHEN, Esq., an attorney from Mr. Liese’s office appeared by telephone requesting the continuance. In addition, the Parent, Ms. , indicated that as Mr. was the individual who best knew the details of the case and that there would be prejudice against the STUDENT unless the hearing could be continued until Mr. was able to attend. Tr. 212-214. A subpoena request was signed on June 27, 2012 directed to COOKE on behalf of the DOE. The actual record closing date was 8/3/12.

BACKGROUND

STUDENT is nineteen years old with , in the at the for the 2011-2012 school year. Ex. H,1-4. On her most recent IEP she has been diagnosed with Intellectual Disability. Exh. 1-1.

On May 5, 2011 the DOE convened and held an IEP meeting to develop an IEP for STUDENT for the 2011-2012 school year. Participating in the meeting , a special education teacher and district representative; , a school psychologist; Gloria Gonzales, a parent member; and , the parent, who participated by telephone. (Tr. 54, 83, 648; Ex. 12). Sally Ord, from , also participated in the meeting, and two of ’s teachers at , , participated by telephone. (Tr. 83, 87; Ex. 1-2, 6-2, 6-4). The STUDENT was recommended to attend a 12.1.1 class for 12 months with related services of counseling, (“ ”), and .

The IEP addresses STUDENT’s academic functioning and learning characteristics, her social and emotional performance, and her health and physical needs. There were accompanying management needs and goals. The IEP also includes a Transition Plan to life after school. Exh 1.

On June 8, 2011, the DOE sent STUDENT’s parents a Final Notice of Recommendation (“FNR”) recommending P754x at HB54X (Bronxwood). The school serves high school students and students as old as 21 years old. Exh. 2

POSITION OF THE PARTIES

DOE

On May 5, 2011 a duly constituted Individualized Education Program (“IEP”) team met and developed an IEP for STUDENT. All of the individuals present had opportunities to participate at the meeting and did participate. Mrs. has participated in numerous IEP meetings for and she, as a special education teacher, has developed IEPs. It is fair to say that Mrs. is familiar with the IEP process and IEP meetings and that she knew she could have invited providers to attend the IEP meeting. Ms. indicated that was made aware of the IEP meeting date in advance and “whoever is involved is invited.” However, neither nor the parent brought the providers. The team possessed the most up to date progress report and a classroom observation, both discussed at the meeting. The team also reviewed a psychological evaluation and a Vineland. ’s then current teachers were also present to report on her needs and performance. ’s previous classification was and this was changed to Intellectual Disability. This change was explained to the parents and was made pursuant to the amended regulations. 8 N.Y.C.R.R 200.1 (zz)(7).

The program recommendation was in a special school for 12 months. The program was recommended because benefits from a small class with the additional adult support. This recommendation was made as the least restrictive for as other programs were considered but ruled out as being too restrictive. The related service goals and the numerous short term objectives were developed collaboratively with Cooke, the parents and school psychologist , while also consulting the progress report. All of the goals in the IEP were discussed at the IEP meeting. s academic performance and learning characteristics were discussed at the IEP meeting. ’s social and characteristics were also discussed at the IEP meeting and the IEP contains management needs to address the areas of need.

There were no other new health updates, as indicated by the parent, thus a medical assessment was not necessary and not warranted as this was not an initial evaluation. A transition plan was included in the IEP pursuant to 8 N.Y.C.R.R. 200.4 (d)(2)(ix) and the plan was discussed at the IEP meeting. The Committee Special Education (“CSE”) recommended strategies, services, management needs and goals that would address ’s needs. If Mrs. did have objections but remained silent, this is detrimental as the DOE was not put on notice of any problems and was unable to cure those problems.

The DOE submits that presenting testimony regarding IEP implementation and specifics regarding the school and the class was not warranted as the State Review Officer (“SRO”) has recently held that when it is clear that the child would not have attended the school, implementation of the IEP is in part speculative. See SRO decision 12-032. More specifically, in SRO decision 11-098, the SRO stated that the DOE was not “required to prove that it could implement” the IEP where the parents’ claims regarding the recommended school were in part speculative because the parents never accepted the placement.

did not attend the . The DOE submits that it need only show the appropriateness of the snapshot of the class of the first day because the DOE is not obligated to hold a seat for a child who does not attend and rejects the placement. See SRO decision 09-096. Any testimony or evidence at the hearing after the first day should not be considered in this decision.

The SRO has held certain parental concerns regarding the DOE’s recommended placement to be speculative when the child never attended the school.

provided related services in the summer 2011 and the school would have been able to meet ’s related service mandates. The DOE presented extensive evidence as to how Bronxwood would have met all of ’s needs and provided with a Free Appropriate Public Education. (“FAPE”) serves all aspects of a high school student – academically, emotionally and vocationally. The DOE provided with a FAPE. The IEP developed for was well thought out and carefully considered. It would have provided with a meaningful education benefit. Furthermore, the recommended school would have provided Christina with an appropriate, meaningful education.

The Parent has failed to demonstrate that the unilateral placement in an appropriate placement (Prong 2). The equities do not lie with the Parents (Prong 3). Parents

The parent alleges that the DOE failed to offer her daughter, , a free and appropriate public education (“FAPE”) for the2011-2012 SY, that the twelve-month 2011-2012 SY program was appropriate for ,and that a weighing of the equities supports an award of direct funding of the parent’s tuition.

According to Ms. , the team relied on and based its recommendations for ’s IEP on the March 2011 Progress Report and ’s 2010 IEP. Ms. and Ms. separately reviewed other documents from ’s file prior to the meeting “for background information” only; however, none of those documents were reviewed or discussed at the meeting or used in the development of the IEP, nor is there anything in the record that demonstrates or suggests that either the parent or the representatives from who participated in the meeting by telephone had copies of the March 2011 Progress Report or the 2010 IEP that were reviewed at the meeting.

Ms. determined that the recommended placement was not appropriate for , and she notified the CSE in writing that it was not appropriate for and gave her reasons for making that determination.

The IEP Developed by the DOE was Procedurally Inadequate. The IEP Developed by the DOE was Substantively Inadequate. The Recommended Placement was Inappropriate. appropriately addressed ’s needs during the 2011-2012 school year. A weighing of the equities supports an award of direct funding for Christina’s tuition during the 2011-2012 school year. The equities favor the PARENTS’ request for tuition.

ISSUES ADDRESSED AT THE HEARINGS

Was the STUDENT offered a FAPE?

Was the PARENT'S placement of the STUDENT appropriate?

In whose favor were the equities in the case?

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Legal Framework and Standard

The I.D.E.A.

The I.D.E.A. mandates that participating States provide students with disabilities FAPE. FAPE requires special education and related services tailored to meet the unique needs of a particular student and reasonably calculated to enable a student to receive educational benefits. Board of Education v. Rowley, 102 S. Ct. 3034, 3037-38 (1982). The law expresses a strong preference for students to be educated to the maximum extent appropriate with non-disabled peers and requires that students be segregated only when the nature or severity of the disability is such that education in regular classes cannot be achieved satisfactorily. Walczak v. Florida Union Free School District, 142 F.3rd 119 (2nd Cir. 1998).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth annually in a written IEP which states present levels of performance, annual goals, specific services to meet those goals, the extent to which the student will participate in regular education, transition services needed for when a student leaves a school setting, the initiation date and duration of services, and objective criteria for determining whether goals and objectives are being achieved. Walzcak, supra at 122.

Parents play a significant role in the IEP process. They must be informed about and consent to evaluations and have the right to an independent educational evaluation of their child. They are members of the IEP team. (Schaffer v. Weast, 126 S. Ct. 528532 (2005). Moreover, parents' participation at IEP meetings must be meaningful. Deal v. Hamilton County Board of Education, 392 F. 3d, 840, 853 (6th Cir. 2005). Parents must also be given prior written notice of any changes to the IEP and notice of procedural safeguards, including the right to an impartial due process hearing. Schaffer, supra 126

S. Ct. at 532.

Adequate compliance with the procedures prescribed by the IDEA will in most cases satisfy what is required substantively in an IEP. Schaffer, supra 126 S. Ct. at 532 citing Rowley at 206; M.S. v. Board of Education of the City School Districts of Yonkers, 231 F. 3rd 96, 102 (2d Cir, 2000). Following Schaffer, the New York State legislature enacted Chapter 583 of the Laws of 2007 (Chapter 583) which provides that the school district bears the burden of proof with respect to the appropriateness of its recommendation.

When determining the appropriateness of a school district IEP recommendation, Congress now requires that hearing officer render a decision on substantive grounds based on a determination of whether the child received FAPE. Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

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 part, if the services offered by the board of education were inadequate or inappropriate, the services selected the parent were appropriate, and equitable considerations support the parent's claim. (CARTER). In CARTER, the Court found that Congress intended retroactive reimbursement to parents by school officials, as an available remedy in a proper case under IDEA. "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 developed a proper IEP." CARTER at 370-71. §504 Legal Standard §504 of the Rehabilitation Act (29 U.S.C. 794[a]) states: "No otherwise qualified individual with a disability…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

As a threshold matter a person is protected under 504 if he or she is qualified person with a disability. A qualified person with a disability is one who has a physical or mental impairment which substantially limits one or more of such person's major life activities. 29 U.S.C. 705(20)(B); 42 U.S.C. 1202(2).

To demonstrate disability it must be shown that the person suffers from a physical or mental impairment, has identified an activity claimed to be impaired and establish that it is a "major life activity", and show that person's impairment substantially limits the major life activity identified. Colwell v. Suffolk County Police Dept. 158 F 3rd 635, 641 (2d Cir. 1998).

With respect to the provision of educational services, 504 requires recipients of federal funds to provide disabled students with a FAPE (34 C.F.R. 104.33(a). FAPE is defined similar to FAPE defined in I.D.E.A. regulations (34 C.F.R. 300.17) as the provision of regular or special education and related services that are designed to meet individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met, 34 C.F.R. 104.33(b); Scruggs v. Meriden Bd. Of Educ., 2007 WL 2318851 at pg. 9 (D. Conn. August 10, 2007). However, the requirement for an IEP under the I.D.E.A. in order to provide FAPE is not required for FAPE under 504.

A party asserting claim of disability discrimination under 504 must demonstrate the student is disabled, the student is otherwise qualified to participate in school activities, the school receives federal financial assistance, and the student was excluded from participation. 504 requires a demonstration that the School District acted with bad faith or gross misjudgment. Intentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to FAPE. See Gabel ex rel L.G. v. Bd. Of Edcu. 368 F. Supp. 2d 313, 334-336 (S.D.N.Y. 2005); see also, Scaggs v. New York State Department of Education, 2007 WL 1456221 at p. 16-17 (E.D.N.Y. May 16, 2007). Parents of a child alleging disability discrimination by a school district pursuant to 504 bear the burden of proof. Rothschild v. Grottenthaler, 907 F. 2d. 286 (2d Cir. 1990).

The legal standard applicable to a request for reimbursement for educational Services includes: (1) the services offered by the Board of Education are inadequate or Inappropriate. A Free Appropriate Public Education was not offered. (Prong 1); (2) the services selected by the parents are appropriate (Prong 2); and (3) equitable considerations support the parent’s claim (Prong 3). (Florence County School District v. Carter, 510 U.S. 7 (1993); School Comm. Of Burlington v. Department of Educ. Of Mass. 471U.S. 359 (1985).

A determination of appropriateness of a unilateral placement is made by consideringwhether the placement is reasonably calculated to enable the child to receive educational benefits and likely to produce progress, not regression. The test for whether a parent’s placement is appropriate is “not perfection”. Rather the inquiry must focus on whether the placement is an appropriate school designed to address the child’s special education needs.

The fact that the placement chosen by the PARENT is not in a school approved by the New York State Education Department is not dispositive in an award of reimbursement to the parent. PARENT'S unilateral placement will be reimbursable even if the placement is not in the child’s least restrictive environment. The Supreme Court held that a child need not have ever attended a public school in order for parents to be eligible for special education services and tuition reimbursement when the District fails to offer FAPE. A private school placement does not have to conform to an IEP and thus does not have to provide the related services recommended therein. Parents "need not show that a private placement furnishes every special service necessary to maximize their child’s potential.”; Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a FAPE as defined by 20 U.S. section 1401(9). An appropriate private placement need not meet state education standards or requirements. PARENTS may not be subject to the same mainstreaming requirements as a school board.

Reimbursement merely requires a district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it developed a proper IEP. The equities are in favor of the PARENT as it cooperated with the DOE at all times in the creation of the IEP.

When determining whether the parent’s unilateral placement is appropriate, “ultimately, the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefits. Frank G. v. Bd. Of Education, 459 F.3d 356 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007). The Second Circuit has set forth standards for determining whether parent has carried their burden of proving the appropriateness of their chosen placement. Although no one factor is controlling as to whether the parent's unilateral placement meets this standard, factors such as grades, test scores and regular advancement may constitute evidence that a child is receiving an educational benefit. Courts assessing the propriety of a unilateral placement should consider the totality of the circumstances in determining whether the placement reasonably serves a child’s individual needs. Part of this includes showing that the chosen placement provides educational instruction 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. Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 (2d Cir. 2007).

Findings of Fact

Prong One

A DOE Committee on Special Education (“CSE”) is charged with providing students with a Free and Appropriate Public Education (“FAPE”). A FAPE is comprised of full evaluations, an informed review where the parent is given a meaningful opportunity to participate, an appropriate classification, an appropriate program recommendation in the least restrictive environment and a timely and appropriate site offer. 34 C.F.R. §§ 300.111, 300.116, 300.301. If the DOE offered the child a FAPE, then the parents are not entitled to reimbursement for their unilateral private school placement, no matter how appropriate the program may be. Only if it is determined that the DOE failed to provide a FAPE, the parents show that their chosen program is appropriate, and the equities favor the parents, can the parent receive an award of reimbursement for the tuition payments paid to the unilaterally chosen private school. 34 C.F.R. § 300.148(c); Application of a Child with a Disability, Appeal number 06-132.

A FAPE starts with an IEP, which must conform with the requirements set forth in 20 U.S.C. § 1414(d)(1)(A). In order to provide a FAPE, the DOE must comply with the procedural requirements of the IDEA and develop an IEP that is reasonably calculated to enable the child to obtain meaningful educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176, 192 (1982). See also Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). The DOE may be required to reimburse a parent for educational services obtained privately for a student if, as a first and necessary criteria, the services offered by the DOE are inadequate or inappropriate. See Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 (1985) and Florence County School Dist. v. Carter, 510 U.S. 7 (1993). Furthermore, it is important to note that under the IDEA, a hearing officer’s decision as to whether the student received a FAPE must be based on both procedural and substantive grounds. In evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 [S.D.N.Y. Jan. 9, 2007]). The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether or not the child received a FAPE 20 U.S.C. § 1415[f][3][E][i]. The Second Circuit has determined that "a school district fulfills its substantive obligations under the IDEA if it provides an IEP that is 'likely to produce progress, not regression'" and if the IEP affords the student with an opportunity greater than mere "trivial advancement" Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130; in that it is likely to provide some "meaningful" benefit. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). The Hearing Officer must additionally consider whether this educational program places the student in the least restrictive environment Carlisle Area School v. Scott P., 62 F.3d 520, 535 (3rd Cir. 1995).

The key questions are, therefore, both procedural and substantive. Was there a procedural violation which either 1) impeded the student’s right to a free and appropriate public education, or 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or

3) caused a deprivation of educational benefits. Substantively, is the IEP 'likely to produce progress, not regression'" and does the IEP afford the student with an opportunity greater than mere "trivial advancement" “likely to produce progress, not regression".

On May 5, 2011 a duly constituted IEP team met and developed an IEP for . T. 52, 53-54, Ex. 1-1, 1-2. 8 N.Y.C.R.R. 200.3(a)(1). sat as the school psychologist and sat as the special education teacher and district representative. T. 53-54, Ex. 1-2. Ms. Giurato has been with the DOE for 27 years, holds a license to teach special education, and has a number of years of prior experience teaching in schools and teaching in the classroom. T. 50-51. Additionally, Ms. participated in ’s prior IEP meeting, as indicated on Ex. G-2. Mrs. ( ), a parent member, and personnel were also present. Ex. 1-2, T. 54. More specifically, ’s then current teachers, Ms. (math teacher), Ms. Gray (ELA teacher), and a supervisor ( ), were present. T. 54. A general education teacher was not present because general education was not considered for Christina. T. 54. 8 N.Y.C.R.R. 200.3 (a)(1)(ii). All of the individuals present had opportunities to participate at the meeting and did participate. T. 54, 702. Throughout the duration of the meeting, contemporaneous minutes were taken. Ex. 4, T. 57. The CSE sent the parent a letter of invitation for the annual review, Ex. 3, which clearly indicates that the parent may invite “individuals who have knowledge or special expertise regarding” the student. Ex. 3, T. 61-63. Mrs. has participated in numerous IEP meetings for and she, as a special education teacher, has developed IEPs. T. 655. It is fair to say that Mrs. is familiar with the IEP process and IEP meetings and that she knew she could have invited providers to attend the IEP meeting. Also Ms. indicated that was made aware of the IEP meeting date in advance and “whoever is involved is invited.” T. 62. However, neither nor the parent brought the providers.

In this case, the team possessed the most up to date progress 7 , it is apparent that the evaluation, together with the report, the observation and members at the meeting, was sufficient to develop the IEP for . Furthermore, Ms. believed that the team had sufficient information to formulate the IEP for . T. 103. When discussin reasons Ms. did not believe that the team needed a new psychological evaluation, Ms. stated that the team was not changing ’s classification or program and she stated that there had been no change in ’s academic functioning over the years. T. 103-104. Additionally, all of ’s health concerns are adequately indicated on the IEP and there were no changes in ’s home life that would have warranted a social history. Tr. 675.

’s previous classification was and this was changed to . T. 58, Ex. 1-1. This change was explained to the parents and was made pursuant to the amended regulations.

8 N.Y.C.R.R 200.1 (zz)(7), T. 58, Ex. 1-1. The program recommendation was in a special school for 12 months. T. 62-63. The program was recommended because benefits from a small class with the additional adult support. T. 63. This recommendation was made as the least restrictive for as other D programs were considered but ruled out as being too restrictive. T. 75-76, Ex. 1-13.

and were recommended. T. 58-59, Ex. 1-14. Related services were discussed at the meeting and Mrs. agreed with the related services and believes that they were “what she needed.” T. 708- 709. was recommended because needs to work on and perseverating. T. 59-60. To address ’s handwriting and activities of was recommended.

T. 60. was recommended because (h)er , one of her main , for articulation, for , , having a contact. Also the was supporting the English language arts teacher in terms of comprehension, listening comprehension, reading comprehension. (T. 60). The related service goals and the numerous short term objectives were developed collaboratively with Cooke, the parents and school psychologist , while also consulting the progress report. T. 72, 85-91. All of the goals in the IEP were discussed at the IEP meeting. T. 72, 73, 75, 76.

’s academic performance and learning characteristics were discussed at the IEP meeting. T. 63-65. Christina’s mother and her then current teachers provided ’s instructional levels and details of her academic functioning. T. 702, 708. In addition todescribing ’s academic skills in great detail, the IEP indicates her decoding, reading comprehension, computation and problem solving levels. Ex. 1-3. The IEP also indicates that ’s listening comprehension is affected by her . Ex. 1-3. This is described in the IEP and addressed in the 9 T. 67-71, Ex. 1-10, 1-11. The math goal specifically addresses word problems, an area of difficulty for . T. 97-99, 105, Ex. 1-10. Each goal in the IEP specifies a method of measurement. These goals were developed collaboratively in conjunction with the team and Christina’s then current teachers. T. 67-68. If any goal from a previous IEP is included in 2011-2012 IEP, it is a goal that Christina would be expected to work on during the 2011-2012 school year. T. 82-85.

’s and were also discussed at the IEP meeting and the IEP contains management needs to address the areas of need. T. 66-67. was able to discuss ’s performance in this area. T. 702. and this is addressed throughout the IEP. Ex. 1-3, 1-4, 1-5. Nothing at ’s home warranted a social history and this was not an initial evaluation.

T. 675, see 8 N.Y.C.R.R. 200.4(b).

A transition plan was included in the IEP pursuant to 8 N.Y.C.R.R. 200.4 (d)(2)(ix) and the plan was discussed at the IEP meeting. See also D.B. v. New York City Dep’t of Educ, 2011 WL 4916435 (S.D.N.Y. 2011), Ex. 1-15, 1-16, T. 703. A vocational assessment was not administered, however this is not a denial of FAPE as the IEP and transition plan address and vocational interests. See SRO decision 11-123. The transition plan was discussed at the meeting and no disagreements were voiced at the meeting. T. 77. Furthermore, were discussed and the contains a great amount of information relating to ’s transition skills and classes. Ex. 6. In fact, the transition plan is very comprehensive as it indicates detailed information pertaining to her instructional activities, community integration, post high school, and independent living. Ex. 1-15, 1-

15. The IEP discusses ’s acquisition of (Ex. 1-8), and her interests in future vocations are indicated in the transition plan as well as on the IEP. T. 77-78, Ex. 1-5. Additionally the recommended school, , administers vocational level 1 assessment every year and would have been given this assessment. T.122-123. Bronxwood also would have updated the transition plan every year. T. 138-140, 225-226.

The IEP contains a comprehensive and appropriate “transition goal” that addresses becoming independent in the community, vocational activities, job skills, 11 T. 73, 91-92, Ex. 1-8.

Parents must exhaust administrative remedies before filing a suit. See Ellenburg v. New Mexico Military Institute, 47 IDELR 153, 478 F.3rd 1262 (10th Cir. 2007) (“Exhaustion begins at an IEP meeting). According to Mrs. , she did not express any disagreements or objections at the IEP meeting. T. 709. The CSE should not be penalized because the parent remained silent at the IEP meeting. The CSE recommended strategies, services, management needs and goals that would address Christina’s needs. If Mrs. did have objections but remained silent, this is detrimental as the DOE was not put on notice of any problems and was unable to cure those problems.

On June 8, 2011, the DOE sent ’s parents an FNR for . Ex. 2. The DOE submits that presenting testimony regarding IEP implementation and specifics regarding the school and the class was not warranted as the State Review Officer has recently held that when it is clear that the child would not have attended the school, implementation of the IEP is in part speculative. See SRO decision 12-032. More specifically, in SRO decision 11-098, the SRO stated that the DOE was not “required to prove that it could implement” the IEP where the parents’ claims regarding the recommended school were in part speculative because the parents never accepted the placement. Pg. 14. did not attend . In fact, the parent did not send the rejection letter until July 19, 2011, well after the first day of school. Ex. E.

In this case, it is clear that would not attend Bronxwood thus the DOE submits that it need not have presented any evidence regarding the proposed class at Bronxwood.

Nonetheless, the DOE presented evidence relating to and the proposed class. However, the DOE elicited facts and testimony relating to the first day of school only and argued throughout the hearing that any date after the first day of school is irrelevant because the child did not show up on the first day and the parent rejected the program and placement. The DOE submits that it need only show the appropriateness of the snapshot of the class of the first day because the DOE is not obligated to hold a seat for a child who does not attend and rejects the placement. See SRO decision 09-096. Any testimony or evidence at the hearing after the first day should not be considered in this decision.

The DOE presented extensive evidence as to how would have met all of ’s needs and provided with a FAPE. Bronxwood serves all aspects of a high school student – academically, emotionally and vocationally. T. 116-119. To provide students with the best experience for after school life, employs a job developer who assesses the student for job sites. T. 119-120. offered a number of different work sites and some included working at a pre-school or as a paraprofessional for the DOE, consistent with ’s interests.

T. 110-111. Every work site has a teacher and a paraprofessional. T. 110-112. would most likely have been afforded the opportunity to participate at a work site in September, after she would have been assessed and observed during the summer. T. 128-129, 147. The school could have moved her to a work site earlier if it was realized that would have been appropriate at a work site. T. 129. If had been placed at a work site, she would have received academic instruction in addition to “career-oriented work.” T. 156, 182-183. has been successful in that students have received competitive employment.

T. 139-140. The school also maintains a comprehensive program that assists parents and students with services or information regarding agencies relevant to post high school life.

T. 120. This begins “the time the student walks through the door.”Formal travel training is always available at . T. 120. The program is headed by and it is a very thorough, comprehensive program. T. 120-122. When Mr. described the program, he stated …District has a huge travel training program. What they do is they come and assess the student. They ask verbal questions of the student to see where they are in terms of traveling. They show them maps. They ask them how to get from here to here. …They take the students, and after they do the initial assessment of the student, they meet the student at his or her house. …They would pick her up from there, and they would start traveling her to the school, using buses and trains. A student would be issued a metro card. They would take the student a number of times…until a student shows proficiency. Then they would start backing off a student, and they would--like I say if they were on a with the student, but not with the student. They would observe the student. They would observe the , making sure the student doesn't do the wrong things like talk to strangers and things like that, make sure the student gets off at the right stop. So once they start, they feel that the student is more proficient, they even back off further and do this for a period of time. It could be weeks. This goes back and forth. Not only do they pick them up at their house, but they bring them to their house from the school. It's a really comprehensive program. A student graduates from that, and the student gets a metro card, and then the student is travel trained. (T. 150-151).

would have implemented ’s transition plan and the plans are updated yearly, or sooner when the student has reached a goal. T. 138-140, 225-226. Also, vocational assessments are administered when a student first arrives at but also throughout the duration as a student at the school. T. 122-123. To ease transition in the school when the school receives a new student, the student, along with the parents, is given a tour and an intake with a guidance counselor is conducted. T. 114-116. All of the classes at were classes. T. 160. The parents’ allegation that the classroom did not have a classroom paraprofessional is unsupported. There were classroom paraprofessionals in the proposed classes for . T. 215, 354. In fact, there was an ample amount of paraprofessionals in the summer. T. 159. would have been placed in Ms. ’s 12.1.1 class for ELA, Mr. ’s class for math, and Ms. ’s classes for Science and Social Studies. T. 125-126, 213-214, 352. These teachers were certified special education teachers. T. 127-128, 213, 353. All teachers collaborated and had access to the students’ IEPs. T. 126, 128. See SRO decision 10-001 where the SRO held that when a special education teacher collaborates with teachers who do not hold special education licenses and those teachers have access to the students’ IEPs, this is not a denial of FAPE. Mr. and Ms. had the same group of students. T. 172-175, 217, 354, 391-392. There was a seat for on the first day of school in July as there were only 6-7 students present on this day. T. 192, 215-216, 355. While anytime after the first day is irrelevant, if there had been 12 students, Mr. would have moved the youngest student out of Ms. ’s and Mr. ’s classes and placed in those classes. T. 192-193.

These students were aged between 15/16 years old to 19/20 years old. T. 218,

355. More specifically, there were 3-4 18 year olds in the class and one student who was19/20 years old. T. 274. Here, would have been 18 year old upon entry to the class, turning 19 in August 2011. However, according to the regulations, in a special class when a student is 16 years old or older, there are no age limitations. 8 N.Y.C.R.R. 200.6 (h)(5). The gender of the students in the classes is irrelevant to FAPE, as it is not an element indicated in the regulations. 8 N.Y.C.R.R. 200.1(ww)(3), 200.6 (a)(3)(b), see also SRO decision 11-010 where the SRO stated that the regulations do not require that students be functionally grouped based on gender and therefore did not credit that allegation.

Ms. Fata’s curriculum followed the New York State standards and she taught reading and writing. T. 222, 218-219. Ms. was also able to provide hands on experiences through an entrepreneurship theme that involved a greeting card making business. T. 228-229. This experience involved practical concepts as well as academics.

T. 229-231. The class also took community trips to familiarize the students with the community and businesses. T. 254-256. The class focused on functional reading which included reading street signs, menus or anything else that would aid in future independent living skills. T. 254. In general ’s IEP was similar to the students’ IEPs at Bronxwood.

T. 133-134. Additionally, her academic functioning, social functioning and goals were also similar to those of ’s students. T. 133-136. In Ms. ’s ELA class there were students that were within ’s functioning levels. T. 232-233. In fact, there were three other students functioning similarly to in decoding and two to three other students functioning similarly in reading comprehension. T. 298-299. With that, Ms. differentiated her instruction and functionally grouped her students. T. 177-179, 218-221. She taught in small groups and was able to provide attention/instruction. T. 341-342. Ms. assessed her students during the summer and she also assessed new students to gain an understanding of student’s writing skills. T. 308. Ms. administered vocational assessments and she would have vocationally assessed upon her arrival. T. 223-224, 334-335. would have also been assessed in reading comprehension, decoding and writing. T. 342-343, 347.

Ms. also employed the “five P’s” (present, punctual, prepared, polite, productive) in her classroom that served as a point system. T. 240-242. Ms. stated that she could address any in the classroom. T. 240. Ms. described the strategies she would have employed to address ’s . T. 233-234, 238-240. She could have implemented ’s goals. T. 243-248. To build upon ’s decoding strengths, Ms. could have assigned chapter books, used graphic organizers to break down reading comprehension, and used visuals. T. 234-236. Ms. worked on writing skills by providing one-to-one instruction.

T. 237.

Mr. ’s math class focused on basic math skills and life skills math that involved concepts and skills such as checking accounts, restaurant checks, utility bills. T. 354. He also taught a business math workshop. T. 363. would have been in the lower functioning math group that contained about 3 students on that same level. T. 361. Mr. functionally grouped his students and differentiated instruction. T. 356-359, 283-285. He gave lengthy, specific examples of how he functionally grouped his students and differentiated instruction during a lesson on restaurant checks. T. 357-360. Mr. was “constantly” able to provide to his students on a “daily basis.” T. 365-365. “Hands on” learning experiences were also provided in math as the class used manipulatives, charts, tables and graph paper. T. 366. Mr. discussed how he would have addressed ’s areas of need in math and how he would have implemented the management needs and goals. T. 370-377. He would have allowed to build her own manipulatives, charts and tables in order to determine patterns and to help her with being successful in math and overcome anxiety associated with math. T. 369.

provided related services in the summer 2011 and the school would have been able to meet ’s related service mandates. T. 136-137, 181. If not, the school could have provided RSA letters. T. 137-138. See SRO decision 11-054 where this was found to be proper. Ms. collaborated with the related service providers to discuss the student and address any concerns. T. 248-249. The SRO has held certain parental concerns regarding the DOE’s recommended placement to be speculative when the child never attended the school. See SRO 12-034. Mrs. ’ concerns about are based on hearsay and are speculative. Mr. visited . However, Mrs. did not visit . Therefore every allegation regarding is based on Mr. ’ observations. T. 676-678. Mrs. testified and her testimony about was essentially hearsay. While hearsay is admissible in this forum, there was no explanation as to why Mr. did not testify regarding the school visit. Also was not with Mr. for either of his visits to . T. 682. He only observed 10-15 minutes of class. T. 682. Based on the above, the parents’ concerns about the recommended school and class are based on speculation alone. The parents’ allegation that there are threats and bullying are completely unsubstantiated, speculative and irrelevant. There was absolutely no evidence supporting this contention. In fact, the students at .” T. 160. Mr. described the school’s behavior system, a point system, peer mediation and proactive intervention. T. 114, 164, 190-192. Additionally Mr. stated that “behavior is not an issue at ” although there have been some minor “scrapes.” T. 163-164. Also, while students share the cafeteria, it is monitored by adults and the students are afforded an opportunity for socialization with the students from the during lunchtime. T. 131-133. Moreover adults are present during lunch, transitions, arrivals and dismissals. T. 116-118, 226-227, 249, 252.

According to Ms. , the team reviewed the March 2011 at the meeting, but neither ’s 2006 , nor her 2006 Vineland Survey, nor the classroom observation, were reviewed or discussed at the meeting. (Tr. 56, 57, 82). Ms. testified that the was read prior to the meeting“to get an understanding, a background, of the student, but it was not used in the actual generation ofan IEP for the following year”; the Vineland was “just read. . . to get a history of the student”; and the classroom observation “was used by me to get an understanding of how the student performs in the classroom, how the student relates to her peers or his peers, and how the student relates to the teacher, and how the student behaves during a lesson.” (Tr. 56, 57, 58). Yet, despite ’s well-known , her , her , her , and her and working closely with her peers, the CSE elected to simply read the documents in ’s file that described these issues as background information only and did not review, use, share or discuss them at the meeting that developed s IEP. The CSE’s failure to perform a complete evaluation and assessment of ’s needs.

The DOE has failed to demonstrate that the CSE adequately involved the parent and the representatives from in the discussion of ’s needs and in the development of her IEP. Ms. and Ms. , s teachers at , participated in the meeting by telephone, but did not participate in the meeting at the same time, were only asked to discuss ’s present levels of performance and goals before returning to their classes, and were not asked to weigh in on the program being considered for her. (Tr. 83, 84, 86, 87). Additionally, prior to the meeting, none of the relevant documents in ’s file were sent to the parent or to the representatives from who participated by telephone, nor did they have copies of the 2010 IEP that was discussed and used by the CSE in the development of ’s IEP. (Tr. 81, 82, 84, 90, 648). Even if the representatives had a copy of the March 2011 Progress Report with them at the time, the parent did not; and unless each member who participated by phone has access to all documentation considered by the CSE, they cannot have had meaningful participation in the meeting and in the development of ’s IEP. Furthermore, the IEP itself was drafted after the meeting had concluded; therefore, the participants from and the parent did not have an opportunity to object to, or even consider, the specific contents of the IEP during the meeting. (Tr. 86).

The IEP fails to include sufficient appropriate and measurable goals and shortterm objectives to assess ’s progress throughout the year. The goals included in an IEP not only must be aligned with a , but also must include sufficient information to enable measurement of the student’s progress towards the goals during the school year, including the evaluative criteria and procedures to be used in measuring progress. See M.H. ex rel. P.H., 712 F. Supp. 2d at 155-56 (quoting 8 NYCRR § 200.4(d)(2)); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citing 20 U.S.C. § 1401(a)(20)); 34 C.F.R. § 300.347(a)(2), (7). In explaining how the goals on ’s IEP were created, Ms. testified that the team went through the goals that were on the prior year’s IEP, or in the March 2011 , with the two who participated in the meeting by telephone, and the team asked them whether had mastered the goals, whether she was still working on them, whether the goals needed to be modified for the next year, and whether the goals would still be appropriate for for the next year. (Tr.83, 84, 86, 87). There were no goals in the 2011 IEP to address ’s significant , her need to develop reading fluency, or her listening comprehension difficulties.(Tr. 99, 100, 103). There are only three academic goals in the 2011 IEP, one for math, and the remaining two for English Language Arts. (Ex. 1-10, 1-11). Those goals are repeated verbatim from the math and ELA goals contained in the 2010 IEP, and but for the addition of a few new objectives, the shortterm objectives are identical as well. (Ex. G-10, 1-10, 1-11). Yet, a review of the March 2011 Progress Report, which contains the process goals and content goals that was working on at at the time of the meeting, indicates that was not working on any of the ELA or math goals and short-term objectives that are contained in either the 2010 IEP or the 2011 IEP. (Ex. 6-2, 6-4, G-10, 1-10, 1-11). Additionally, ’s math and ELA instructor during the 2011-2012 school year testified that the math goals and objectives don’t adequately address ’s need for functional math skills; that the short-term objectives need to focus on important elements that aren’t in the IEP such as reading schedules, telling time, reading receipts, identifying money, counting coins, and entering her PIN number at an ATM; that there is too much emphasis on having make estimations; and that there is a lot of repetition and not enough of the community piece in the goals. (Tr. 517, 518). With respect to the ELA goals, she testified that the goals were vague and they did not have sufficient information regarding how to implement them. (Tr. 520, 521).

The remaining goals in the 2011 IEP were for speech and language therapy, occupational therapy, counseling, and transition. (Ex. 1-7, 1-8, 1-9). Ms. testified that the speech and language therapy goals, occupational therapy goals, and counseling goals were developed by reviewing the 2010 IEP and the March 2011 Progress Report and discussing the goals with Ms. , because none of ’s related service providers attended or participated in the CSE review meeting. (Tr. 88-95). However, Ms. is not a and language therapist, an , or a , nor did she prepare the reports that are contained in the March 2011 Progress Report that were allegedly relied on to prepare these goals. (Tr. 54, 88, 91; Ex. 1-2). Merely because Ms. allegedly “knows the students at very well” does not give her the qualifications, knowledge, experience or expertise necessary to create goals to address significant , or . (Tr. 90). Moreover, Ms. testified that Ms. created these goals by focusing on the proficiency levels that had reached in the goals contained in the March 11 Progress Report, and that if ’s proficiency level was at a 2, it would indicate an area of need and therefore an area should be working on in the following year. (Tr. 90, 91; Ex. 6). However, there was no occupational therapy report in the March 2011 Progress Report to enable Ms. to determine Christina’s proficiency level or her area of need in order to develop the occupational therapy goals for the 2011 IEP. Additionally, in developing the speech and language goals, Ms. contradicted Ms. ’s testimony by including all of the proficiency level 3 goals and one proficiency level 4 goal from the Language Skills report, without any input from the speech therapist who was providing the instruction as to whether still needed to work on those particular goals during the 2011-2012 school year. In developing the counseling goals, Ms. Levine again contradicted Ms. ’s testimony by retaining a proficiency level 4 goal and a proficiency level 3 goal from the Personal Independence Skills report, and she also retained shortterm objectives that were not being worked on by at the time, again without any input from the who was providing the instruction as to whether still needed to work on those particular goals during the 2011-2012 school year. Last, because Ms. relied on the written reports she was reviewing which reflected what was working on a few months prior to the time of the meeting, the CSE was unable to make an independent inquiry of the providers about the continued appropriateness of these goals for the 2011-2012 school year. (Tr. 92, 94, 95; Ex.1-7, 1-8,1-9, 6-12, 6-15).

Ms. testified that the transition goal was taken partly from the Transition Plan on page10 of the IEP, and that the transition goals that needed to be carried over from the 2010 IEP would be carried over to the 2011 IEP. (Tr. 95, 96). However, the transition goal from the 2010 IEP was repeated in its entirety in the 2011 IEP, and all but one of the short-term objectives from the 2010 IEP were carried over and repeated in the 2011 IEP, without any input from ’s adaptive skills instructor at the time as to whether they were still appropriate for the 2011-2012 school year. (Ex. G-8, 1-8). Additionally, ’s adaptive skills instructor for the 2011-2012 school year testified that the transition goal in the 2011 IEP is very ; that there is insufficient information regarding how to implement the goal; that the short-term objectives are insufficient in addressing ’s needs and don’t provide adequate information regarding how they should be implemented; and that the objectives don’t indicate enough applied learning to enable to practice and learn the skills she works on in the classroom. (Tr. 578).

The CSE is required to provide a placement recommendation that is reasonably calculated to provide the student with meaningful educational benefit and avoid regression. Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citations omitted). In order for a placementto be appropriate, the CSE must be able to implement the program recommended in the IEP as of the first day of the school year. 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); see Cerra v. Pawling, 427 F.3d at 194; C.B. & R.B. v. N.Y.C. Dep’t of Educ., 2005 WL 1288964, at *18 (E.D.N.Y. June 10, 2005) (stating that the court must consider “whether the program was appropriately designed and implemented so as to convey a meaningful benefit”). The evidence presented by the DOE failed to show that the offered placement could have implemented ’s IEP as of the first day of the school year, and failed to show that the placement was appropriate for her. In order for a placement to be appropriate, the DOE “. . . must show that the student would have been suitably grouped for instructional purposes with students having similar individual needs with regard 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. (8 NYCRR 200.6[g][2] and [3]).” Application of a Child with a Disability, Appeal No. 02-045. Under New York law, the DOE bears the burden of demonstrating the appropriateness of its program. Application of a Child Suspected of Having a Disability, Appeal No. 93-09; Educ. Law §4404[1](c).The DOE has failed to demonstrate that it offered an appropriate program to since it has presented no evidence regarding the appropriateness of its program for the mandatory ten-month commencing in September 2011. The DOE may argue that since had a twelve-month recommendation, it is only obligated to demonstrate the appropriateness of the offered program as of the “snapshot” in time of the commencement of the twelve-month in July 2011. However, while the Second Circuit has held that the appropriateness of an IEP must be assessed based upon “what was,and was not, objectively reasonable when the snapshot was taken, that is, as of the time the IEP was promulgated,” this “snapshot” refers to the moment the IEP was generated and does not focus on the moment of the scheduled start date of the implementation of the IEP program. D.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595 (2d Cir. 2005). The DOE’s burden is thus not solely limited to demonstrating the appropriateness of its program as of the first day of school in July. Additionally, testimony regarding the differences between the Summer program and the ten month program was first brought out during the DOE’s direct examination of its own witnesses, and much of the testimony regarding those differences was in response to questions asked by DOE counsel. Thus, any objection raised by the DOE should be deemed waived. Application of the XXXX Dep’t of Educ., Appeal No. 08-037; Application of a Student with a Disability, Appeal No. 09-034.

The DOE did not offer any evidence that the program offered to Christina and defended during the Impartial Hearing was a continuous twelve-month program, or that it did not include distinct components for Summer and Fall. To the contrary, the testimony from the ELA teacher at during the Summer session, Harvey Feller, the math teacher at during the Summer session, and Frank DeGenero, who was an assistant principal at during the 2011 Summer session, indicates that the Summer and Fall programs at were different. According to Ms. Fata’s testimony, “during the summer, most of the assessments are mostly like checklists” (Tr. 222); she “was trained as a Wilson teacher”, but “[d]uring the summer. . . we didn’t use [the Wilson program]” (Tr. 223); her students “don’t go to the work site in the summer” (Tr. 225); the schedule during the summer “is completely different from the one during the year” (Tr. 227); “two of my students were assessed during the summer for travel training. . . but nothing started during the summer”, and “[i]t gets so confused, the summer with the regular school year” (Tr. 289). Mr. Feller testified that “we don’t do any standardized testing during the summer”, but that they do “a lot of standardized testing” during the Fall term (Tr. 356, 383); in “the summer we didn’t do much” work on banking skills, and that he wasn’t “sure what they do during the year” (Tr. 367, 368); he had no role in updating a student’s transition plan “during the summer”, but that the transition plans would have been worked on in the Fall term (Tr. 377, 388); he taught art and not math during the school year, and so he therefore would not have been ’s math teacher in the Fall (Tr. 379); he “[didn’t] know if there were any [work sites] during the summer”, but he thought that the students had those opportunities in September (Tr. 388); and “the summer program is different from the. . . rest of the school year” (Tr. 391). Mr. testified that Ms. “was the ELA teacher during the summer”, but would only state that it was “possible” that she would have been ’s ELA teacher during the ten-month school year beginning in September (Tr. 130, 179, 180); “during the school year it’s very, very important that you’re extremely diligent with the one-to-one paras,” but “[i]n the summer there’s usually excess paras, an excessive amount of paras, more than you need” (Tr. 166); and it was“unlikely” that would have been going to a work site during the summer, but “she wouldhave been an excellent candidate for our worksites at least in September” (Tr. 153). Where programs for Summer and Fall are materially different, the DOE has an obligation to demonstrate the appropriateness of both programs to sustain its burden of proof on Prong I. See Bettinger v. New York City Dep’t of Educ., No. 06 CV 6889, 2007 WL 4208560, at *9. Since the DOE has failed to present any evidence regarding the appropriateness of the program at P754X for the ten-month mandatory SY, it has failed to sustain its burden of proof in this case.

The DOE was also unable to prove that there would have been a seat available for in the offered placement, as the testimony is at the very least unclear as to how many students were registered in the classes to which was assigned. Although Ms. initially indicated that there were approximately six to seven students in her ELA class on the first day of school in July, she later testified that she eventually had 12 students in her class, that there are many reasons why students who are registered don’t come to school the first day or the first week in the summer, that she had 12 students registered for her class as of the first day of school but not all of them showed up for class, that as time went on more of the students on her roster started to arrive in the class, and that eventually she had 12 students in attendance in her class. (Tr. 216, 259-263). Mr. was unable to say with any certainty whether or not there were 12 students registered in his math class as of the first day of the summer session; all he could recall was that there were six students in his class on the first day of school, that on a day to day basis the registration would change, and that on average there were between eight and ten students in his class on a daily basis. (Tr. 382, 383). Mr. did not remember how many students were in Ms. ’s class on the first day of school, other than there were less than 12, but he acknowledged that at one point her class did have 12 students, and he testified that Mr. also had 12 students in his class. (Tr 130, 180, 183).

The offered program at also would not have provided with sufficient or appropriate vocational opportunities or other transitional programming, nor would it have provided her with sufficient and appropriate opportunities for community inclusion. Ms. testified that none of her students went to work sites or participated in travel training over the summer, and the only opportunity for the students to work on vocational skills was through a greeting card project held in the school for two periods in the afternoon which was elective and which was used to transition students to the work site program in September. (Tr. 225, 289, 328, 329, 336). Mr. testified that he didn’t know if there were any work sites over the summer, or if any of the students in his class attended work sites over the summer, and he further testified that he did not work on transition plans over the summer. (Tr. 387, 388). Additionally, there was no evidence that the offered program at provided the students with opportunities to practice their functional skills in the community. Only Ms. provided testimony about community trips, and she testified that the community trips taken by her class over the summer were limited to field trips and walks to the library during which the students became familiar with the community and surrounding businesses, and a business district walk in which the students were able to interview street vendors. (Tr. 254, 255). Furthermore, the record demonstrates that the class and program defended by the DOE at hearing would not have been appropriate for . First, the offered class would not haveprovided with appropriate and similarlyfunctioning peers or peer models. While Ms. and Mr. both testified that the students in their classes had sufficiently similar academic and characteristics to and that they could have implemented ’s IEP goals, they based this speculative assessment exclusively upon a review of ’s contested IEP. (Tr. 238, 244, 246, 257, 355, 374, 377). The students in Ms. ELA class were mostly classified as , with three or four students classified as mentally retarded and two students classified as , and Mr. indicated that he had the same students as Ms. . (Tr. 222, 288, 354). There were no students in Ms. ’s ELA class with , although Ms. initially testified that one student in her ELA class had “a mild case of ”, only to subsequently admit that she was not sure that the student had . (Tr. 305, 306). The students’ functioning levels in reading ranged from , and their ages ranged from 15 to almost 20. (Tr. 218, 267, 272, 273). A 6-year range in functioning levels and a 5-year range in age would not provide with appropriate and similarly functioning peers or peer models with similar academic levels and learning characteristics. No functioning range was ever given for Mr. ’s math class, and consequently the DOE was unable to demonstrate that the class was functionally appropriate for . The DOE was therefore unable to prove that would have been suitably grouped for instructional purposes with students having similar individual needs with regard to levels of academic or educational achievement and learning characteristics, and levels of social and physical development. Additionally, the DOE failed to show that would have received sufficient individual attention at to support her learning. needs one-to-one attention and redirection to stay on task and participate in many of the academic periods, and requires a high level of support on a constant basis so that someone can review directions with her, re-read material to her, and ensure that she is clear about what she has to do. (Tr. 477, 478, 535, 537, 620). However, Ms. was only able to provide one-on-one instruction for 5-to-10 minutes in her ELA class for writing, and she was able to provide one-on-one instruction for reading on a pull-out basis for only two students, two or three days a week. (Tr. 292, 300, 301.) Additionally, Mr. was only able to provide instruction in his math class during the first 20 minutes, for 2 to10 minutes per student. (Tr. 365, 385). Such limited academic instruction would not have been sufficient for to make appropriate progress and avoid regression in skills. would have implemented ’s transition plan and the plans are updated yearly, or sooner when the student has reached a goal. T. 138-140, 225-226. Also, are administered when a student first arrives at but also throughout the duration as a student at the school. T. 122-123.

To ease transition in the school when the school receives a new student, the student, along with the parents, is given a tour and an intake with a guidance counselor is conducted. T. 114-116. All classroom did not have a classroom is unsupported. There were classroom paraprofessionals in the proposed classes for . T. 215, 354. In fact, there was an ample amount of paraprofessionals in the summer. T. 159. would have been placed in Ms. ’s 12.1.1 class for ELA, Mr. ’s 12.1.1 class for math, and Ms. ’s classes for Science and Social Studies. T. 125-126, 213-214, 352. These teachers were certified special education teachers. T. 127-128, 213, 353. All teachers collaborated and had access to the students’ IEPs. T. 126, 128. See SRO decision 10-001 where the SRO held that when a special education teacher collaborates with teachers who do not hold special education licenses and those teachers have access to the students’ IEPs, this is not a denial of FAPE. Mr. and Ms. had the same group of students. T. 172-175, 217, 354, 391-392. There was a seat for on the first day of school in July as there were only 6-7 students present on this day. T. 192, 215-216, 355. While anytime after the first day is irrelevant, if there had been 12 students, Mr. would have moved the 15 youngest student out of Ms. ’s and Mr. ’s classes and placed in those classes. T. 192-193.

These students were aged between 15/16 years old to 19/20 years old. T. 218,

355. More specifically, there were 3-4 18 year olds in the class and one student who was19/20 years old. T. 274. Here, would have been 18 year old upon entry to the class, turning 19 in August 2011. However, according to the regulations, in a special class when a student is 16 years old or older, there are no age limitations. 8 N.Y.C.R.R. 200.6 (h)(5). The gender of the students in the classes is irrelevant to FAPE, as it is not an element indicated in the regulations. 8 N.Y.C.R.R. 200.1(ww)(3), 200.6 (a)(3)(b), see also SRO decision 11-010 where the SRO stated that the regulations do not require that students be functionally grouped based on gender and therefore did not credit that allegation.

CONCLUSIONS AS TO PRONG ONE

The Parent claims that the IEP was procedurally inadequate in that there was nothing in the record to suggest that the parent or the representatives from had copies of the documents reviewed at the CSE meeting (the progress report and the 2010 IEP.). Nor was the 2006 psychoeducational evaluation, the 2006 Vineland Survey, or classroom observation reviewed or discussed at the meeting –even though they may have been read prior to the meeting. Parent claimed also that the DOE had failed to adequately involve the Parent and the representative in the discussion of STUDENT’s needs and the development of her IEP.

In addition the IEP was drafted after the meeting had concluded and the parent and did not have an opportunity to consider the specific contents of the IEP during the meeting. The Parent claimed that there were insufficient appropriate and measurable goals and short term objective’s. Parent indicates that there were no goals in the 2011 IEP to address STUDENT’s distractibility and focusing issues. Additionally, STUDENT’s math and ELA goals did not adequately addressed STUDENT’s needs.

However, the record shows that On May 5, 2011 a duly constituted IEP team met and developed an IEP for . T. 52, 53-54, Ex. 1-1, 1-2. 8 N.Y.C.R.R. 200.3(a)(1). Nancy sat as the school psychologist and sat as the special education teacher and district representative. T. 53-54, Ex. 1-2. Ms. has been with the DOE for 27 years, holds a license to teach special education, and has a number of years of prior experience teaching in schools and teaching in the classroom. T. 50-51. Additionally, Ms. participated in ’s prior IEP meeting, as indicated on Ex. G-2. Mrs. ( s mother), a parent member, and were also present. Ex. 1-2, T. 54. ’s then current teachers, Ms. (math teacher), Ms. Gray (ELA teacher), and a supervisor ( ), were present. T. 54. A general education teacher was not present because general education was not considered for . T. 54. 8 N.Y.C.R.R. 200.3 (a)(1)(ii). All of the individuals present had opportunities to participate at the meeting and did participate. T. 54, 702. Throughout the duration of the meeting, contemporaneous minutes were taken. Ex. 4, T. 57.

The CSE sent the parent a letter of invitation for the annual review, Ex. 3, which clearly indicates that the parent may invite “individuals who have knowledge or special expertise regarding” the student. Ex. 3, T. 61-63. Mrs. has participated in numerous IEP meetings for and she, as a special education teacher, has developed IEPs. T. 655. It is fair to say that Mrs. is familiar with the IEP process and IEP meetings and that she knew she could have invited providers to attend the IEP meeting. Also Ms. indicated that was made aware of the IEP meeting date in advance and “whoever is involved is invited.” T.

62. However, neither nor the parent brought the providers. All of the individuals present had opportunities to participate at the meeting and did participate. T. 54, 702. Throughout the duration of the meeting, contemporaneous minutes were taken. Ex. 4, T. 57.

Parent also claimed that STUDENT’s transition goals were insufficiently stated and that the program offered by the DOE at would not have provided STUDENT with sufficient vocational opportunities or other transitional programming nor would it have provided STUDENT with sufficient and appropriate opportunities for community inclusion. However the record shows that a transition plan was included in the IEP pursuant to 8 N.Y.C.R.R. 200.4 (d)(2)(ix) and the plan was discussed at the IEP meeting. See also D.B. v. New York City Dep’t of Educ, 2011 WL 4916435 (S.D.N.Y. 2011), Ex. 1-15, 1-16, T. 703. A vocational assessment was not administered; however this is not a denial of FAPE as the IEP and transition plan address ’s transitional needs and vocational interests. See SRO decision 11-123. The transition plan was discussed at the meeting and no disagreements were voiced. T. 77. Furthermore, ’s transition needs were discussed and the report contains a great amount of information relating to ’s transition skills and classes. Ex. 6. The transition plan is very comprehensive as it indicates detailed information pertaining to her instructional activities, community integration, post high school, and independent living. Ex. 1-15, 1-

The IEP discusses ’s acquisition of daily living skills (Ex. 1-8), and her interests in future vocations are indicated in the transition plan as well as on the IEP. T. 77-78, Ex. 1-5. Additionally the recommended school, , administers vocational level 1 assessment every year and would have been given this assessment. T.122-123. also would have updated the transition plan every year. T. 138-140, 225-226. focuses on academics, transition, and post-high school life.

To provide students with the best experience for after school life, employs a job developer who assesses the student for job sites. T. 119-120. offered a number of different work sites and some included working at a pre-school or as a paraprofessional for the DOE, consistent with ’s interests. T. 110-111. Every work site has a teacher and a paraprofessional. T. 110-112. would most likely have been afforded the opportunity to participate at a work site in September, after she would have been assessed and observed during the summer. T. 128-129, 147. The school could have moved her to a work site earlier if it was realized that would have been appropriate at a work site. T. 129. If had been placed at a work site, she would have received academic instruction in addition to “career-oriented work.” T. 156, 182-183. ’s career program has been successful in that 25 Bronxwood students have received competitive employment. T. 139-140.

The school also maintains a comprehensive program that assists parents and students with services or information regarding agencies relevant to post high school life.

T. 120. This begins “the time the student walks through the door.” Id. Formal travel training is always available at . T. 120. The program is a very thorough, comprehensive program. T. 120-122. When Mr. described the program, he stated …District has a huge travel training program. What they do is they come and assess the student. They ask verbal questions of the student to see where they are in terms of traveling. They show them maps. They ask them how to get from here to here. They take the students, and after they do the initial assessment of the student, they meet the student at his or her house. They would pick her up from there, and they would start traveling her to the school, using buses and trains. A student would be issued a metro card. They would take the student a number of times…until a student shows proficiency. Then they would start backing off a student, and they would--like I say if they were on a bus, they would sit in the same bus with the student, but not with the student. They would observe the student. They would observe the student's behavior on the bus, making sure the student doesn't do the wrong things like talk to strangers and things like that, make sure the student gets off at the right stop. So once they start, they feel that the student is more proficient, they even back off further and do this for a period of time. It could be weeks. This goes back and forth. Not only do they pick them up at their house, but they bring them to their house from the school. It's a really comprehensive program. A student graduates from that, and the student gets a metro card, and then the student is travel trained. (T. 150-151). would have implemented ’s transition plan and the plans are updated yearly, or sooner when the student has reached a goal. T. 138-140, 225-226. Also, vocational assessments are administered when a student first arrives at but also throughout the duration as a student at the school. T. 122-123. To ease transition in the school when the school receives a new student, the student, along with the parents, is given a tour and an intake with a guidance counselor is conducted. T. 114-116.

Parent alleged that the recommended placement was inappropriate. In order to be appropriate the CSE must be able to implement the program recommended in the IEP as of the first day of the school year. The DOE must show that the STUDENT would have been suitably grouped for instructional purposes with students having similar individual needs with regard 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.

The record shows that would have met ’s needs and provided with a FAPE. serves all aspects of a high school student – . T. 116-119. All of the classes at were classes. T. 160. The parents’ allegation that the classroom did not have a classroom paraprofessional is unsupported. There were classroom paraprofessionals in the proposed classes for . T. 215, 354. There was an ample amount of paraprofessionals in the summer. T. 159.

would have been placed in Ms. ’s 12.1.1 class for ELA, Mr. ’s 12.1.1 class for math, and Ms. ’s 12.1.1 classes for Science and Social Studies. T. 125-126, 213-214,

352. These teachers were certified special education teachers. T. 127-128, 213, 353. All teachers collaborated and had access to the students’ IEPs. T. 126, 128. See SRO decision 10-001 where the SRO held that when a special education teacher collaborates with teachers who do not hold special education licenses and those teachers have access to the students’ IEPs, this is not a denial of FAPE.

Mr. and Ms. had the same group of students. T. 172-175, 217, 354, 391-392. There was a seat for on the first day of school in July as there were only 6-7 students present on this day. T. 192, 215-216, 355. If there had been 12 students, Mr. would have moved the youngest student out of Ms. ’s and Mr. ’s classes and placed in those classes. T. 192-193. These students were aged between years old to years old. T. 218,

355. More specifically, there were 3-4 year olds in the class and one student who years old. T. 274. Here, would have been entry to the class, turning in August 2011. However, according to the regulations, in a special class when a student is old or older, there are no age limitations. 8 N.Y.C.R.R. 200.6 (h)(5).

Ms. ’s class followed the New York State standards and she taught reading and writing. T. 222, 218-219. Ms. was also able to provide hands on experiences through an entrepreneurship theme that involved a greeting card making business. T. 228-229. This experience involved practical concepts as well as academics. T. 229-231. The class also took community trips to familiarize the students with the community and businesses. T. 254-256. The class focused on functional reading which included reading street signs, menus or anything else that would aid in future independent living skills. T. 254. In general ’s IEP was similar to the students’ IEPs at . T. 133-134. Additionally, her academic functioning, social functioning and goals were also similar to those of s students. T. 133-136. In Ms. ’s ELA class there were students that were within ’s functioning levels. T. 232-233. In fact, there were three other students functioning similarly to in decoding and two to three other students functioning similarly in reading comprehension. T. 298-299. With that, Ms. differentiated her instruction and functionally grouped her students. T. 177-179, 218-221. She taught in small groups and was able to provide 1:1 attention/instruction. T. 341-342. Ms. assessed her students during the summer and she also assessed new students to gain an understanding of student’s writing skills. T. 308. Ms. administered vocational assessments and she would have vocationally assessed upon her arrival. T. 223-224, 334-335. Christina would have also been assessed in reading comprehension, decoding and writing. T. 342-343, 347. Ms. also employed the “five P’s” (present, punctual, prepared, polite, productive) in her classroom that served as a point system. T. 240-242. Ms. stated that she could address any behaviors in the classroom. T. 240. Ms. described the strategies she would have employed to address ’s , such as prompting. T. 233-234, 238-240. She could have implemented ’s goals. T. 243-248. To build upon ’s decoding strengths, Ms. could have assigned chapter books, used graphic organizers to break down reading comprehension, and used visuals. T. 234-236. Ms. worked on writing skills by providing instruction. T. 237.

s academic performance and learning characteristics were discussed at the IEP meeting. T. 63-65. ’s mother and her then current teachers provided ’s instructional levels and details of her academic functioning. T. 702, 708. In addition to describing ’s academic skills in great detail, the IEP indicates her decoding, reading comprehension, computation and problem solving levels. Ex. 1-3. The IEP also indicates that ’s listening comprehension is affected by her distractibility. Ex. 1-3. This difficulty is described in the IEP and addressed. T. 67-71, Ex. 1-10, 1-11. The math goal specifically addresses word problems, an area of . T. 97-99, 105, Ex. 1-10. Each goal in the IEP specifies a method of measurement. These goals were developed collaboratively in conjunction with the team and ’s then current teachers. T. 67-68. If any goal from a previous IEP is included in 2011-2012 IEP, it is a goal that would be expected to work on during the 2011-2012 school year. T. 82-85. Mr. ’s math class focused on basic math skills and life skills math that involved concepts and skills such as checking accounts, restaurant checks, utility bills. T. 354. He also taught a business math workshop. T. 363. would have been in the lower functioning math group that contained about 3 students on that same level. T. 361. Mr. functionally grouped his students and differentiated instruction.

T. 356-359, 283-285. He gave lengthy, specific examples of how he functionally grouped his students and differentiated instruction during a lesson on restaurant checks. T. 357-

360. Mr. was “constantly” able to provide to his students on a “daily basis.” T. 365-

365. “ ” learning experiences were also provided in math as the class used manipulatives, charts, tables and graph paper. T. 366. Mr. discussed how he would have addressed ’s areas of need in math and how he would have implemented the management needs and goals. T. 370-377. He would have allowed to build her own manipulatives, charts and tables in order to determine patterns and to help her with being successful in math and associated with math. T. 369

The Parent contends that DOE was unable to prove that there would have been a seat available for STUDENT in the offered placement. However, the record shows that the DOE need only show the appropriateness of the snapshot of the class on the first day because the DOE is not obligated to hold a seat for a child who does not attend and rejects the placement. See SRO decision 09-096.

Parent also indicated that there was no evidence that they offered opportunities for STUDENT to practice her functional skills in the community.

The record shows that employs a job developer who assesses the student for job sites. T. 119-120. offered a number of different work sites and some included working at a pre-school or as a paraprofessional for the DOE, consistent with ’s interests. T. 110-

111. Every work site has a teacher and a paraprofessional. T. 110-112. would most likely have been afforded the opportunity to participate at a work site in September, after she would have been assessed and observed during the summer. T. 128-129, 147. The school could have moved her to a work site earlier if it was realized that would have been appropriate at a work site. T. 129. If had been placed at a work site, she would have received academic instruction in addition to “career-oriented work.” T. 156, 182-183. ’s career program has been successful in that 25 students have received competitive employment. T. 139-140. The school also maintains a comprehensive program that assists parents and students with services or information regarding agencies relevant to post high school life. T. 120. This begins “the time the student walks through the door.” Id

Parent indicated that the class offered would not have provided STUDENT with appropriate and similarly functioning peers or peer models. Parent added that there were no students in the ELA with Down syndrome although there was one student with a mild case of Down syndrome. The record shows that in general ’s IEP was similar to the students’ IEPs at . T. 133-134. Her academic functioning, social functioning and goals were also similar to those of ’s students. T. 133-136. In Ms. ’s ELA class there were students that were within ’s functioning levels. T. 232-233. In fact, there were three other students functioning similarly to in decoding and two to three other students functioning similarly in reading comprehension. T. 298-299. With that, Ms. differentiated her instruction and functionally grouped her students. T. 177-179, 218-221.

Parent also claimed that STUDENT would not have received sufficient individual attention at to support her learning. The record shows that Ms. taught in small groups and was able to provide . T. 341-342. Mr. was “constantly” able to provide attention and instruction to his students on a “daily basis.” T. 365-365. “ experiences were also provided in math as the class used manipulatives, charts, tables and graph paper. T. 366. Mr. discussed how he would have addressed ’s areas of need in math and how he would have implemented the management needs and goals. T. 370-377. He would have allowed to build her own manipulatives, charts and tables in order to determine patterns and to help her with being successful in math and overcome anxiety associated with math. T. 369.

I note that the SRO has stated that "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 statuteensures 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] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of student with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at132). 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 [citations omitted]; see P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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.

Where a procedural violation is alleged, the hearing officer may find that a child did not receive FAPE only if the procedural inadequacies impeded the child's right to FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE, or caused a deprivation of educational benefits. 20 U.S.C. section 1415 (f)(2)(E).

Based on the record as outlined above, I find nothing to show that there were significant procedural violations which impeded the child’s right to FAPE or the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education. Nor do I find deprivation of educational benefits.

From the substantive side, was the IEP likely to produce progress, not regression? I find the evidence in the record shows that the IEP would be likely to produce progress not regression and that the Student’s opportunity was greater than mere “trivial advancement” Based on the above I find as follows:

(1) That STUDENT was not denied FAPE for the 2011-12 school year;

(2) Accordingly, an analysis of Prongs Two and Three are not required.

ORDER

ORDERED that the Due Process request brought by the Parents for the 20112012 school year is denied. Dated: September 4, 2012

________________________________

STEPHEN B. HAKEN, ESQ.

Impartial Hearing Officer

SH:dl

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 MAY 30, 2012

PARENT

A Impartial Hearing Request, 2/20/12, 6 pages B Finding of Fact and Decision, 11/10/08, 22 pages C Order on Pendency, 11/30/09, 5 pages D Order on Pendency, 5/2/12, 6 pages E Letter from Parent, 7/18/11, 4 pages F Letter from Parent, 7/19/11, 4 pages G IEP, 4/18/10, 15 pages H Due Process Response, 2/23/12, 4 pages I Progress Report, December 2011, 15 pages J Progress Report, March 2012, 15 pages K Description, Undated, 2 pages L Description of Skills Program, Undated, 5 pages M Affidavit, 5/21/12, 1 page N Enrollment Contract, 6/16/11, 2 pages O Enrollment Contract, 2011-2012, 2 pages P Daily Schedule, Undated, 1 page Q Schedule, Undated, 2 pages R Summer Attendance Report, 5/16/12, 1 page S Skills Attendance Report, 5/16/12, 1 page

DEPARTMENT OF EDUCATION

1 IEP, 5/5/11, 16 pages 2 FNR, 6/8/11, 1 page 3 Notice of IEP Meeting, 4/14/11, 1 page 4 Meeting Minutes, 5/5/11, 2 pages

5 Classroom Observation, 12/10/10, 2 pages 6 Progress Report, March 2011, 15 pages 7 Evaluation, 10/12/06, 3 pages 8 Vineland, 10/30/06, 9 pages