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: Parents

Dates of Hearing: May 2, 2012

June 4, 2012

June 21, 2012

August 9, 2012

Actual Record Closed Date: September 24, 2012

Hearing Officer: Judith Schneider, Esq.

CORRECTED: October 14, 2012

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 2, 2012

Attorney — Student

District Representative — DOE

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

Attorney — Student

Parents

District Representative — DOE

Psychologist (via telephone) — DOE

Teacher (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 21, 2012

Attorney — Student

Parents

Clinical Director (via telephone) — Student

Principal (via telephone) — Student

District Representative — DOE

Assistant Principal (via telephone) — DOE

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

Attorney — Student

Parents

Speech Therapist (via telephone) — Student

Teacher (via telephone) — Student

District Representative — DOE

Placement Officer (via telephone) — DOE

On May 2, 2012, June 4, 2012, June 21, 2012 and August 9, 2012, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the 2011-2012 special education program of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated February 29, 2012. (Ex. A) I was appointed Impartial Hearing Officer on April 18, 2012, after prior recusal/s. (T. 4) I was available to conduct a hearing within 14 days of appointment. At a prehearing conference, via telephone, on April 20, 2012, conference, the initial hearing was scheduled for May 4, 2012, the first mutually available date for the parties and the hearing officer. (T. 4)

The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses, the submission of evidence and the submission and review of closing memoranda. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted and documentation concerning my decisions was provided to the parties. (T. 4-5, 20, 27-28, 119, 123-125, 407, 656, 657, Ex. II))

The current compliance date is November 4, 2012. The record closed on September 24, 2012, upon my receipt of all post-closing memoranda. (Ex. I) ^[1]

Background

The student at the commencement of the 2011-2012 school year (12 month program) and his classification was . (Ex. B) That classification is not in dispute. He had been unilaterally placed by his parents for the 2010-2012 school year (“EHTA”), a non public school that is not approved by the New York State Department of Education as a school with which districts may contract for the provision of special education services.

The DOE convened on April 15, 2011, to develop an IEP for the 2011-2012 school year (“the CSE review”). (Ex. B) CSE participants were: , a bilingual (Yiddish) school psychologist, , a DOE special education teacher who was also the District Representative, a parent member and, by telephone, the parent, the student’s then current teacher and his OT and SL providers. (T. 39, Ex. B-2) The CSE recommended a bilingual Yiddish special class (12 month program), or as an interim placement (if a bilingual program was not available for him) a monolingual (English) class with a Yiddish speaking Alternate Placement Paraprofessional (T. 88, Ex. B) It also recommended: (in Yiddish) 1x30 individually and 1x30 in a group of two; Therapy (“OT”) (in English) 4x 45 individually and 1x60 in a group of two; Therapy (“ ”) (in Yiddish) 5x60 individually; and, a full time Yiddish speaking Paraprofessional. (Ex. B28)

By letter dated June 4, 2011, the DOE offered for the 2011-2012 school year an interim placement at in a monolingual (English) class with the support of a bilingual paraprofessional as noted as related services of Counseling, and a Crisis Paraprofessional. (Ex. 3)

By letter dated June 16, 2011, the parents informed the CSE that the student’s “ can be best addressed with the EHTA classroom” and that the parents were placing him in EHTA for the 2011-2012 school year and would seek tuition reimbursement from the

DOE. (Ex. D)

On July 5, 2011, the parents executed a contract with EHTA specifying a total of $176,765 for tuition, OT, SL, counseling and various “additional services” for the 2011- 2012. It was indicated that of that amount $16,180 was for Summer 2011 tuition and services. (Ex. K) ^[2]

By letter dated August 18, 2012, the student’s mother (“the parent”) informed the CSE that she had visited the recommended school. The parent stated that the school would not be able to provide a Yiddish speaking paraprofessional (“para”) which would deny the student the opportunity to progress, negatively impact already acquired speech and language skills and intensify . She informed the CSE that the student would be attending EHTA in September unless an appropriate placement was offered. (Ex. C)

By letter dated February 21, 2012, the parents filed the impartial hearing request which initiated this matter. (Ex. A)

Positions of the Parties

The parents assert that the April 15, 2011 IEP is procedurally and substantively defective, that the parents were denied a meaningful opportunity to participate in the development of the IEP and the placement process and that the placement offered was not appropriate. The parents claim that EHTA was appropriate for this student and that equitable considerations support funding by the DOE. They assert financial inability to pay the entirety of the contracted amount for tuition and services and seek reimbursement that portion paid by them and direct payment of the balance to EHTA. (Exs. A, III)

The DOE asserts that dfects in the IEP, if any, were de mimimis, its placement was appropriate, that the parents had a meaningful opportunity to participate in the development of the IEP and that it offered a free, appropriate public education (“FAPE”) The DOE claims that EHTA was not appropriate for this student. Further, it claims that the parents were unwilling to consider a public school, that they did not have any obligation to pay for EHTA and were merely asserting a claim on behalf of that school and that equitable considerations favored the DOE.

Cases Presented

The DOE presented the testimony of: Esther Reich (“Reich”), a bilingual school psychologist who conducted the March 2, 2011 evaluation of the student (Ex. 4) and who participated in the CSE review; (“the AP”), Assistant Principal at the recommended school; (“ ”), teacher at the recommended school; (“ ”); a CSE placement official.

The parents presented the testimony of: (“the ”), a who provides services to the student at and who participated in the CSE review; (“the teacher” ), a teacher of the student during the 2011-2012 school year; (“ the Principal”), the principal of the student’s mother (“the parent”)

Lists of documents admitted into evidence are appended hereto.

Findings of Fact and Conclusions of Law

A. Factual Findings

The information specified in the “Background” section above are included herein as findings of fact. Transcript and exhibit references not specified below are included above. I find the testimony of each of the DOE witnesses credible in that I conclude that they testified truthfully in accordance with their recollections and as to the opinions they held. Further factual findings are set forth and included below.

B. Legal Standards

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State, the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedure, s, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

The parents allege that the IEP is procedurally and substantively procedurally defective, the placement inappropriate and meaningful participation by the parent has been denied. (Exs. A, III)

With regard to this student’s functioning levels and deficits, the CSE reported that his grade equivalents on standardized tests of in comprehension, decoding and writing with grade levels in spelling and in math. (Ex. B-3) It described him as skills and significant with within the . (Ex. B-3) Overall, skills were described to be at grade level. (B-3) It was stated that language skills were at receptively, that his highly unintelligible without context and that he had significant difficulty with questions and being appropriate and required . (Ex. B-4 ) His behaviors included bolting from the , . (Ex. B-5) It was noted that he benefits from a environment due to difficulties beginning a . (Ex. B-5) Further, he was . (Ex. 4-6) The student was described by the CSE as a Yiddish speaking child (Ex. B-1, B-3, B-4, B-26)

The DOE’s sole witness with regard to the CSE review was . testified that: The parent and all the participants had the opportunity to voice concerns and participate. (T. 60-61) The team considered and discussed a bilingual evaluation conducted by Reich (Ex. 4), an educational progress report completed by the student’s classroom teacher (Ex.

5) progress reports (Exs. 6, 7) as well as the input at the meeting of the student’s teacher, provider and the mother. (T. 40, 46, 47, 49) A was developed in collaboration with the teachers and the parent and discussed but she could not recall whether an was considered. (T. 50, 78, Ex. B-30) Goals were developed with the participation of the school and the participants. (T. 52-59) The CSE considered the and reports and participant input and continued the related services as previously provided.

(T. 59, Ex. B) With regard to an device, testified that existing references on the IEP to a device were in error and that before any recommendations could be made an evaluation request by school or parent had to be completed and information provided after which the CSE would reconvene. (T. 79-81 )

testified that the student’s language of dominance was Yiddish but that he had some command of English although Yiddish at times enhanced his performance during her evaluation. (T. 43, 44, 74-75, Ex. 4-3) If the student was placed in a bilingual Yiddish class he would, pursuant to the IEP, also have had the addition of a Yiddish speaking crisis management para. (T. 89)

stated that she believed, but was not sure, that if there was no bilingual class, only one Yiddish speaking para, who would serve as the both the behavior para and the alternate placement para would be provided (T. 70-72) but that the CSE was recommending two paras. The AP was similarly unsure but testified as to his belief that pursuant to DOE policy only one para would have been provided. (T. 175)

I note that there has been no rebutting or clarifying evidence, documentary or testimonial, presented by the DOE. In these circumstances the DOE has failed to demonstrate that two paras would have been provided pursuant to this IEP. Further, there is nothing in the record indicating how that two would function or how that would benefit this student, as discussed below. I also note that although the bilingual alternate placement para was referred to as an “interim” placement, there has been no claim or indication that the placement would be for a limited period of time. (Ex. 3) I conclude that the student would receive for the 2010-2012 school year a monolingual class with one Yiddish speaking para. Accordingly, I consider that as the recommendation and placement offer of the CSE in this matter although my analysis with regard to the program recommended would be substantially the same if two Yiddish speaking paras were available.

The evidence in this matter, discussed in the Findings of Fact and Conclusions of Law section below, shows that at the time of the review the student was attending which provided him with solely core subject instruction with Yiddish speaking instructors as well as a Yiddish speaking para accompanying him at all times. The student’s dominant language was Yiddish, his primary language at home was Yiddish and it was acknowledged by the CSE that Yiddish translations enhanced his performance.

(T. 43, 509, Ex. 4) The student’s provider testified that the student “needs fluidity in both languages” and he needs “someone who has enough of a Yiddish background, to be able to move him along.) (T. 484) She added that he would “have a hard time” if he was required to go through a third person and anticipated a “communication breakdown” if he tried to say something and someone else did not understand. (T. 484; see also T. 457.

458) His current teacher confirmed that testimony. (T 573-574) I find that testimony persuasive.

I conclude that ’s testimony does not rebut this and to some extent supports it. Reich’s evaluation was entirely one to one and there was no indication that she observed the student in any other environment. (T. 75) Although is a very experienced bilingual school psychologist (T. 36), she could not complete her estimated two hour evaluation in one day due to the student’s behaviors which and the need for (T. 42, 76, Ex. 4) She did not observe the student in a group. I also note had never observed a Yiddish speaking student with class supported by a Yiddish speaking paraprofessional and indicated no similar experience with regard to any other language group. (T. 72)

I also note that it was acknowledged by the CSE that his behaviors were a . An might have provided information as to the affect on behaviors, if any, of the language used but there is no indication that an was conducted.

In this matter, the student, who had substantial behavior issues requiring a para regardless of the class setting, would have been newly placed in a environment and been required to interact with staff and students who did not speak his dominant language and would have been supported solely by one Yiddish speaking para. Further, I note there is no indication that if indeed only one para was provided, that the para would been in the classroom throughout the school day. In the circumstances here, the testimony of provided no basis for concluding that the program provided was reasonably calculated to enable this student to make meaningful educational gains. The AP and had no knowledge of this student other than what was stated on the IEP. Accordingly, testimony as to other students in the school who were functioning with a bilingual alternate placement para does not support a conclusion that this student.

Accordingly, I find that the DOE failed to establish that the program it provided was reasonably calculated to enable this student to make meaningful educational gains and therefore it has failed to establish it provided a FAPE. I, therefore, do not address the parent’s other claims with regard to Prong 1.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank

G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be in the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007).

The credible evidence shows that that is a small program with about 30 students in 2011-2012. (T. 271) The students are from five to 16 years old, all with IEPs, with classifications of Other Health Impairment, Multiple Disabilities, Autism Spectrum Disorders, Visual and Hearing Impairments and Leaning Disabilities. (T. 307, 309-310) offers various related services including OT, SL, PT, aquatic therapy , feeding therapy, augmentative communication support and music therapy. (T. 312) Students individual schedules reflect their IEP mandates as well as the recommendations of staff. (T. 312) Most of the staff are fluent in English and Yiddish. (T. 486-487)

For the 2011-2012, the student was the only boy in a class of four children who ranged in age from old with similar and math and reading levels from students, who all had issues and paras. (T. 563) was in the school only on Monday and Thursday afternoons and for occasional meetings at other times. (T. 566) is a certified special education teacher (T. 559-560) Instruction was also provided by two other teachers ( ) with a licensed teacher always in the room (T. 386-387, 565) and an assistant teacher ( ) who held an interim certification. (T. 569) The student’s para was with the student all day including during instruction by others. (T. 634) All the student’s teachers and his paraprofessional were fluent in both English and Yiddish. (T. 559-560, 570) Variation in instructors and providers facilitated generalization. (T. 426, 579-580) His academic instruction was principally one to one, with emphasis on behavior management but he had opportunities to participate in small social groups and was grouped for some activities when his behaviors permitted that. (T. 297-298). He received and as mandated on his IEP. (T. 220-252, 411-413 ,423, Exs. E, H, I, S, T,U) He also received aquatic therapy one session per week. (Exs E, K) Staff training was provided, staff conferred frequently and parent training was provided. (T. 242-243, 262-263, 516, 569) I find the foregoing credible.

However, I conclude that the parents have failed to establish that the program they provided was appropriate.

With regard to the behavioral aspects of the parents’ program, the evidence shows that a major component in teaching the student was . (T. 571) Indeed, testified that one to one instruction was necessary because of . (T. 583) included toward his teacher, , and as well as a high level of (T. 571, 583) During the period September until December 2011 as a consequence of and to give the student an opportunity to , at least two to three times a day for up to 15 minute intervals the student was put in a room that had been emptied of everything, with the para looking in through a glass panel in the door to ensure safety. (T. 259-260, 575-576) A room had also been used for that purpose during the Summer 2011 although its use had been required infrequently in that period.

(T. 259) During December the violent behaviors occurred less frequently and by January the room had been restored to its original purpose. (T. 260) However, incidents toward peers and other continued through the end of the school year when it was reported that tantrums involving destruction of materials and overturning furniture could occur a few times weekly. (T. 571, Exs. H, T )

While there was testimony that a behavior plan had been eventually developed by the school’s psychologist, who is also the , and that questions by staff are addressed at team meetings and the plan updated when necessary (T. 319, 340, 572, 578, 604, 631), there was no written behavior plan and no written tracking of behaviors. (T. 576-577) Rather, relied upon informal ongoing observation and assessment. (T. 576-777) Moreover, the evidence shows that the more formal plan which everybody followed was put into place only in about January 2012 and that there was no school-wide plan prior to that. (T. 631-633) I also note that the record is devoid of any testimony or documentary evidence from the school’s or from the consultant but for a counseling note dated June 2012. (Ex. T) There is no documentation with regard to any behavior plan, school-wide or more limited. There is also no written although instruction and services were routinely provided by at least 10 people who saw the student at different times and in different circumstances. In these circumstances, where it is acknowledged that was appropriate in view of the unique needs of this student.

With regard to the academic portion of the program, it is unclear precisely how that program was delivered to this student and by whom and whether it was appropriate.(Ex. E) was the principal witness with regard to this aspect of the student’s program, which ended in June 2012. She did not know the schedule of the other instructional staff (T. 566-567), she did not know if instructors other than the assistant teacher, provided one to one instruction (T. 571- 572, 589) and she did not know the makeup of the staff in the morning and how the program worked at that time. (T. 637) provides instruction to the class only during the period from 12:00 to 4:00, Monday and Thursday (T. 566), is at the school only occasionally some mornings (T. 588) and provides one to one instruction to this student for only two (2) 30 minute sessions (in reading) per week with reading instruction also provided by others. (T. 611-613) provides one to one instruction to this student at least Monday through Thursday (T. 578) and instructional subjects include math (T. 610), science (T. 633) and handwriting (T. 638). The academic program was developed at the beginning of the year by the team and was tweaked when necessary. (T. 584-586, 589-599) testified that the student had progressed in reading and math (T.581-582) and she described other accomplishments (T. 589-599)

However, similar to the manner in which behaviors are handled, there were no written records kept with regard to the student’s progress. Information concerning progress is shared orally by the teachers and records are not maintained. Although she conducted some informal assessments, they were apparently not recorded and were not identified. No formal ones were used by her and she is not aware of any that were conducted for this student or any of the other students in her class. (T. 585, 614) Although a teacher progress report was submitted, I note that it was primarily anecdotal and provided little information from which specific progress across his curricula could be ascertained. (Ex. G)

Further, the student is mandated to receive a 12 month program and the parent seeks DOE payment for that. (Ex. K) The “Tuition” amount specified for Summer 2011 program is very substantially below the September – June program, when considered on a monthly basis, and indicates that the Summer program differs significantly. was not teaching during that period and had no information concerning the program (T. 600) While it is apparent that the student attended (T. 259, Ex. L), there is nothing in the record indicating what he did there and therefore nothing to enable a conclusion that it was appropriate.

For the foregoing reasons, I conclude that the evidence also does not establish that the academic aspects of the program provided were appropriate to meet the unique needs of this student.

Therefore, I conclude that the parents have not met their burden to establish that the unilateral program they provided was appropriate and that, absent other legal bars, they are entitled to DOE funding for it.

Although not necessary in view of the foregoing findings, I make the following finding with regard to the funding sought. (Ex. K)

There has been no testimony concerning the specifics of the Instruction including what it provides, who actually provides it and how the provider/s or services differ from the others that the student receives. (T. 335-336) The evaluation in connection with the Instruction did not result in a written document, was not conducted in a specified block of time, and apparently did not involve the ongoing collection and review of written student data. (T. 340-342) I also note that the psychologist is salaried for part of the day although paid , the basis for separate billing for this service apart from her duties as salaried staff is not satisfactorily explained and the charge not supported by evidence of actual time spent. (T. 369-370)

The charges charge prospectively per session with no provision for unprovided sessions and no record of dates service was provided. (Ex. K)

Finally, although there has been testimony as to the benefits of ( ), I note that the student’s program already includes a very substantial component which also provides an opportunity and opportunities and there has been no persuasive testimony as to why this service is necessary. Further, the evidence does not support a conclusion that aquatic therapy in so integrated into the program that it cannot be reasonably severed. A failure by the DOE to provide a FAPE does not entitle the student to every service that might be desired by loving parents. Appeal no. 11-164 Prong 3 In view of the foregoing findings, I do not address equitable considerations in this matter. However, I make the following factual findings with regard to the disputed issues about which the DOE presented rebuttal testimony. Concerning the parent’s efforts to arrange a visit to the recommended school in June, I find credible the testimony of Potash that she makes a record of all messages left on her phone and that none were received from the parent in June. (T. 647) I find not persuasive the parent’s testimony that she left numerous messages in an attempt to arrange a timely visit. (T. 554)

ORDER

This matter is DISMISSED.

Dated: October 9, 2012 CORRECTED: October 14, 2012 (Re exhibit identification)

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

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.

DOCUMENTS ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

1 Omitted 2 Recommended Deferred Placement for 1/5/11, 1 p. 3 Final Notice of Recommendation, 6/4/11, 1 p. 4 Bilingual Evaluation, 3/2/11, 9 pp. 5 Educational Progress Report, 4/4/11, 3 pp. 6 Progress Report, 4/4/11, 3 pp. 7 Progress Report, 4/8/11, 2 pp. 8 Appointment Letter, 3/2/11, 1 p. 9 Meeting Notice, 3/25/11, 2 pp. 10 Meeting Notice, 4/5/11, 1 p.

11 Parent Letter, 8/18/11, 2 pp.

PARENT

A Demand for Due Process, 2/21/12, 5 pp. B IEP, 4/15/11, 30 pp. C Letter to , 8/8/11, 3 pp. D Letter to , 6/16/11, 1 p. E ’s Daily Schedule at 2011-2012, 3 pp. F Program Description of Undated, 1 p. G Teacher Progress Report , 4/30/12, 2 pp. H Progress Report, , 1/31/12, 3 pp. I Progress Report 1/30/12, 2 pp. J Affirmation of Tuition , 4/27/12, 1 p. K Tuition Contract 7/5/11, 5 pp. L Attendance , July 2011-April 2012, 1 p. M Proofs of Payment, 2011-2012, 14 pp. N and Tax Return, 2011, 2 pp. O Affirmation of Tuition, 5/29/12, 1 p. P Proofs of Payment, 2012, 2 pp. Q Loan Affirmations, 5/30/12, 2 pp. R attend., 7/1/11, 1 p. S Progress Therapy Report, 6/26/12, 2 pp. T Report, 6/21/12, 1 p. U Progress Report, 6/26/12, 1 p. V Aquatic Therapy Report, 6/21/12, 1 p. W Affidavits re Parents’ Payments, 2 pgs. (Exs. A & B- Parents Closing Memo

IMPARTIAL HEARING OFFICER

I E-mail re closing of the record, 9/26/12 1 pg. II Compliance date extension decisions III Parents Closing Memorandum IV DOE Closing Memorandum

Footnotes

[1] Submitted with the parents’ closing memorandum, with the consent at hearing of the DOE, were additional exhibits (Exs. A and B of the Closing Memorandum). For the clarification of the record, I have marked them as Parents’ Exhibit W and so listed and referenced it. (Ex. III)

[2] During the hearing, the parents stated that the claim for reimbursement for specified assistive technology charges, totaling $3105, were withdrawn. (T. 127-128, 333)