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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 22, 2012
June 11, 2012
July 18, 2012
July 31, 2012
Actual Record Closed Date: August 24, 2012
Hearing Officer: Judith Schneider, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 22, 2012
Attorney — Parents
Mother — Parents
District Representative — DOE
School -CSE — DOE
Social Worker-CSE — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 11, 2012
Esq. Attorney — Parents
Mother — Parents
Teacher- — Parents
(via telephone)
District Representative — DOE
Teacher-Public School — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 18, 2012
Esq. Attorney — Parents
Mother — Parents
District Representative — DOE
School Psychologist-CSE — DOE
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2012
Esq. Attorney — Parents
Mother — Parents
Curriculum Director- — Parents
(via telephone) SE
District Representative On May 22, 2012, June 11, 2012, July 18, 2012, and July 31, 2012, — DOE
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 special education program of XXX (“the student”).
The proceeding was initiated at the request of the parent by correspondence dated February 28, 2012. (Ex. A) I was appointed Impartial Hearing Officer on February 29, 2012 and I was available to conduct a hearing within 14 days. At a prehearing conference, via telephone, conducted on April 4, 2012, hearings were scheduled for May 7, 2012 and May 22, 2012, the first mutually available dates for the parties, their witnesses and the hearing officer. (T. 4-5, Ex. I) The May 7, 2012 date was adjourned due to impartial hearing officer illness and additional dates were thereafter scheduled.
(T. 5, 160)
The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and 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. 5, 160-161, 167, 324, 326, 388, 517-518, Ex. II)
The current compliance date is September 11, 2012. The record closed on August 24, 2012, upon my receipt of all post-closing memoranda. (Ex. VI)
Background
The student was almost at the commencement of the 2011-2012 school year (September) and her classification if . (Ex. 1) That classification is not in dispute. (Ex. A) She has been diagnosed with and is taking . (Ex. 1)
The student received Early Intervention services and attended various pre-schools pursuant to CPSE recommendation. (T. 390, 451) She has been enrolled in the for Special Education (“ ”) since about age . (T. 393) is a non-public school which has not been approved by the New York State Education Department as a school with which the DOE may contract for the delivery of special education services. Its classes are ungraded. (T. 305)
For the 2010-2011 school year the CSE had recommended a special class in a a community school with various related service and a full time paraprofessional (“para”) (T. 455, Ex. 1-2) The CSE reconvened on March 28, 2011, to develop a program for the following year. It recommended a special class in a community school and continuation of the same level of related services ( ( ) and ( ); (“ ”) ( ) and ( ); and (“ ”) ( )) but discontinued the para. (Ex. 1)
There was a deferral of placement to enable the student to complete the school year at . (T. 95-102, 102-115-116, 117, 140, Ex. 2)
By letter dated August 4, the CSE recommended a placement at a public school.
(T. 512, Ex. 3)
By letter dated August 15, 2012, the parent informed the CSE that she was unable to visit the school prior to September 6, 2012, due to summer closing but was requesting certain information concerning the placement. She also reported concerns that the program proposed would not provide sufficient support and individualized attention, that the March 28, 2012 IEP (“the IEP”) did not accurately reflect the student, that the IEP goals were inadequate and that the promotional criteria were inappropriate. (Ex. 13)
By letter to the CSE dated August 24, 2012, the parent noted that she had not received a response to the August 15, 2012 letter, and reiterated the information therein. She also informed the CSE that the student would begin the 2011-2012 school year at and requested busing. (Ex. 14)
Enrollment contracts executed on August 31, 2012, state that tuition for the 20112012 (10 month) school year is $39,500 (Ex. F) and that the aggregate additional fee for the student’s related services for that period is $12,600 (Ex. G)
By letter to the CSE dated September 27, 2011, the parent reported various concerns about the placement, reiterated concerns about the IEP and stated that the student would continue at . (Ex. D)
By letter dated February 28, 2012, from her attorney, the parent filed a request for the instant impartial hearing. (Ex. 1)
Positions of the Parties
The parent asserts that the IEP is substantively and procedurally defective and the public school placement offered was not appropriate, that the unilateral placement at was appropriate, that equitable considerations favor the parent and that the DOE should be ordered to fund the student’s program at for the 2011-2012 school year. The parent also claims that she is unable to pay and seek reimbursement and she requests direct payment to by the DOE for the entirety of the program. (Ex. III)
The DOE asserts that the IEP and placement were appropriate, that the placement is not appropriate and that, in any event, equitable principles warrant denial of DOE payment. Further, the DOE claims that the parent has no standing with regard to the payment claim because a debt had not been established. (Ex. IV)
Cases Presented
A list of documents in evidence is appended hereto.
The DOE presented the following witnesses: (“ ”), CSE school ; (“ ”), CSE school who conducted the school observation (Ex. 4); (“ ”), special education teacher at the recommended public school.
The parent presented the following witnesses: (“ ”, the student’s teacher for the 2011-2012 school year; (“ ”), the Curriculum Coordinator; the student’s mother (“the parent”).
Findings of Fact and Conclusions of Law
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.
and testified concerning the development of the IEP as follows:
Although neither witness had personal knowledge whether the meeting notice and classroom observation in this matter were actually mailed, DOE documents indicated that in accordance with CSE practice the notice was mailed by a DOE official no longer employed by the DOE and CSE procedure was to attach observations and any other new DOE generated evaluations with the appointment letter. (T. 28-31, 33-35, 80, Ex. 15) The parent did not indicate that she did not receive the notice or the observation, upon request in such circumstances documents are faxed during the meeting and/or the meeting is rescheduled, and the parent did not request a reschedule. (T. 113, 114) Participants were the who conducted the school observation ( ), a school ( ), a general education teacher, a DOE special education teacher who also served as District Representative, and a parent member as well as the student’s mother and classroom teacher, both of whom participated by phone. (T. 35-36, Ex. 1)
The student’s counselor had been requested by the CSE but was not provided by . (Ex. 1) (T, 35-36, 124) However, the counseling report was reviewed at the meeting and the fact that recent had been reported was discussed with the teacher who said that the student had made and although at times she was she could be and she responded to and was . (T. 122-126, 127, 143-144, 330-331) The team recommended a placement in a school but removed the paraprofessional because the student’s had, accordingly to her mother and teacher, and both thought she did not require that level of individual assistance any longer. (T. 37-38, 56, 85-86, 90) The team was aware that the para was no longer working with the student by the time of the January observation. (T. 33, Ex. 4) The observation was also reviewed and was consistent with the parent and teacher report at the meeting. (T. 37, 56, 82, 84 Ex. 4) During the observation, the student was and the teacher reported at that time that that was . (T. 74-75, 132) The student needed academic support but was persistent and at the time of observation was working with the teacher in a group of two. (T. 74)
The CSE’s understanding, based upon the teacher’s report at the meeting, was that the student at that time was working on a grade curriculum and that she was in the grade although it noted that the prior review indicated that she was in the grade during the 2010-2011 school year. (T. 39, 42, 92-94, 333-334) It was stated that referred its classes as ungraded and often gave inconsistent reports about class grades. (T. 93-94) The prepared one of the development pages and the parent also provided information. (T. 59-60) All goals specified were discussed and goals submitted by were used if appropriate. (T. 105-106, 135-140) and counseling goals were prepared by the providers and reviewed at the meeting. (T. 60-61, 105-106) The CSE considered the updated teacher, counseling, reports provided by the school as well as the classroom observation and the June 2010 psycho-educational report and social history which were in the student’s file, which was also present. (T. 40-41, 82, 84, Exs, 4, 5, 6, 7, 8, 9, 10) At the beginning of the meeting the parent was told that she could interrupt at any time to voice opinions or obtain clarification. (T. 183) Teacher and parent opinions were solicited and they provided information during the meeting. (T. 49, 82, 84, 384) The parent did not express concerns about the recommended program at the meeting. (T. 103-104) The parent had expressed an interest in a public school placement and the program had been described at the meeting. (T. 94) Deferred placement was discussed and the parent said that she did not want to move the student at that time. (T. 95-102, 115-116, 117, 140)
The student’s 2010 evaluation reported from average. (T. 45, Ex. 9 ) The academic functioning levels reported in the IEP as well as the description of her skills came from the teacher’s participation at the review as well as upon the teacher’s report and from the who prepared an IEP page. (T. 49-51, 54, Exs. 1, 10) Management needs were developed upon consideration of the student’s strengths and deficits. (T. 53) The team concluded that the student needed a small structured academic class environment, , positive reinforcement of appropriate behavior, clearly defined rules and , . (T. 53, 58) and believed that her needs could be addressed in the recommended program. (T. 349, 382-383) The IEP was mailed to the parent the next business day. (T. 136-137)
With regard to an FBA and/or BIP, the team concluded there was no need and noted that there were no significant at the time. (T. 56, 86, 126, 142, 144) The teacher had reported that of other students work was “very very rare, almost not in existence.” (T. 358) The teacher also reported that the student would very very rarely get up and that some at all. (T. 359) Further, the CSE had been informed there was no individual behavior plan in effect for the student but there was a class-wide plan. (T. 57, 89-90, 118-119) During the meeting the team discussed the effect of the removal of the para on the student’s in a public school placement. (T. 146, 363-364) It believed that the small class, the various goals, the counseling and and the management needs specified would be sufficient to address the student’s behaviors. (T. 378-379)
testified with regard to the recommended public school class. She was the teacher of the only graders and would have been the student’s teacher. (T. 174, 184) She testified that the class was a grade class, that the students were probably between years old in September 2011 and that there was a seat available for the student in September. (T. 177, 220) The students were classified with and and some had diagnoses. (T. 185) Two of the students had paras because of . (T. 185, 199) None of the students had an individual BIP but she described a program consisting of system. (T. 202-203) She develops individual behavior plans when necessary. (T. 212-215) Should she conclude that a student required an FBA, she would refer the matter to the school assessment team. (T. 224, 231-232, 233) Students in her class sometimes become and and described how that is handled. (T. 206, 212) One student had , and up his work, but that was almost non-existent by the end of the year. (T. 200, 208)
The students functioned approximately from years level in and abut years . (T. 185-187) Curricula following New York State standards is used in both instruction. (T. 188) Formal assessments are conducted times a year in .
(T. 190, 192) For math assessments, she uses tests built into the curriculum. (T. 190) Instruction is differentiated, students are grouped according to their ability and individualized instruction is provided with the assistance of the classroom and the other paras in the room. (T. 188, 192-193, 217) In addition to minutes each day for both reading and math, an additional instruction hour principally for those subjects a week is mandated and provided by two teachers. (T. 194-195 ) minutes a day of instruction is also provided. (T. 194, 196) Students receive related services similar to this student’s and receive all mandated services but it was possible that some might be provided via RSA. (T. 200) collaborates routinely with related service providers, including the counselor if there are issues. (T. 202) She opined that the goals were appropriate, noting that they addressed the student’s and present performance levels as described in the IEP. (T. 217, 218) She stated that the student, as described in the IEP, is similar to other students in terms of performance and goals and she opined that the student could have made appropriate progress in her class. (T. 206, 208)
I find the testimony of and credible with regard to all factual claims, which include the material reviewed, the communications with the participants, the information relied upon during the review, and the basis for the conclusions of the CSE team as well as the program provided in the recommended class. The testimony was detailed and substantially consistent. I also find credible the testimony of . To the extent that the testimony of the parent’s witnesses is inconsistent with that testimony I find it not reliable for the reasons discussed below.
I also note that I include in my factual findings the specifications in the “Background” section above.
(Transcript and Exhibit references not specified below are included above.)
The parent claims that her opportunity to meaningfully participate in the decision making process was significantly impeded. Further, she claims that the IEP is procedurally and substantively defective on the grounds that: there was insufficient evaluative material because an FBA was not conducted and a BIP was not prepared, and that the CSE failed to appropriately consider the information available to it regarding the student’s behavioral needs, the description of the student and the goals were insufficient to enable her needs to be appropriately addressed by persons who did not know her. She also claims that the school placement offered was not appropriate. (Ex. IV) I turn to those claims.
A. Meaningful opportunity to participate
With regard to this issue, the parent was the sole witness on her behalf. She testified that she did not receive a notice of the meeting from the CSE and did not receive a copy of the class observation conducted in January 2011 (T. 395, 396, Ex. 4) She states that she was notified of the meeting a few days in advance of the meeting by and did not know that she could ask for a rescheduled date. (T. 394-395) She stated that she had no knowledge as to her rights in the review process and had never received information concerning that issue prior to the meeting and could not recall being informed of rights by review members. (T. 411, 447) The parent describes the meeting as lasting 10-20 minutes. (T. 396, 419) She states that she had no knowledge that an observation existed
(T. 418), as to what documents the CSE was reviewing or that it was reviewing any, that an observation existed. Further, she states that the CSE did not discuss the issue of a BIP, did not discuss goals and did not discuss a placement. (T. 397) Indeed she states that her understanding of the meeting was that it was to develop a program for the 20112012 school year and that during the review the CSE told her that the student would remain in for that next year. (T. 398, 420-421, 448) She states that not until she received the IEP and an FNR in August did she realize that a community school recommendation had been made. (T. 398) Therefore, she claims that no weight should be given to her acknowledged failure to ask for copies of documents or a reschedule of the meeting or to object to the program or any of the goals. (Ex. III)
With regard to the meeting notice, neither of the DOE witnesses had any personal knowledge that the document was mailed but could testify only as to CSE procedures and contemporaneous documentation specifying that they were followed. (Exs. 12, 15) I find that testimony persuasive but note that the DOE did not submit a notice showing the complete address. (Ex. 12-2) However, the parent has been involved in CPSE and CSE reviews since the student was about years old and consequently received numerous notices with regard to meetings and placements which specified parental rights and/or explained how to obtain that information. I find it not credible that she at no time received information that brought those rights to her attention. Further, she was informed of the meeting several days in advance by and had ample time to consult it or the CSE about her options if the meeting was inconvenient for her. I also note that the parent has not stated any objection to the observation or any of the documents reviewed by the CSE and has not indicated that she would have produced others.
With regard to the parent’s claim that various essential matters were not discussed, I find that not reliable. I note that the parent was inaccurate with regard to her income (T. 409, 441-442) and was unable to recall the CSE’s recommendation for the prior year at all. (T. 452) I find that and testified credibly concerning what occurred at the meeting and the testimony of the parent does not rebut that..
I conclude that the parent’s participation in the development of the IEP was not significantly impeded and a FAPE was not denied on that ground.
B. Claims regarding the IEP
1) BIP/FBA : The parent asserts that there is insufficient evaluative material to support the CSE’s recommendation because an FBA was not conducted and a BIP was not prepared. However, the evidence shows that the CSE reviewed sufficiently current reports from the teacher, providers, the social worker who conducted the observation, and various documents from the student’s record including a report. The CSE also solicited and considered the input of the student’s teacher and parent. Contrary to the claims of the parent (Ex. III-7), there is no testimony or evidence that at the time of the review the student continued to engage in and . Such that interfered with learning were reported by the teacher and the parent to be very much reduced and the para was removed from the IEP with the agreement of those persons. agreed with the removal of the para. Indeed apparently was no longer providing the para. The CSE concluded that there was no indication of the student’s performance at that time. (T. 86, 126, 142, 144) It was reported to the CSE that episodes were about once a month, if that much, and that the student could be redirected and responded to attention and support from her teachers. (T. 119) The CSE considered that the student would be in a larger class and in a public school placement but concluded that an BIP/FBA were not necessary in the circumstances in view of the infrequency of the student’s and with the supports in the IEP. These supports included a small class, a relevant and substantial specification of social and academic needs, counseling and and relevant goals as well as an accurate description of the student. The team concluded that the student would be able to maintain progress. (T. 146)
The CSE witnesses asserted that there was no BIP in place at the time of the review. It was, however, acknowledged that there was a positive reinforcement plan for this student that involved using with the possibility of a at the end of the week. (T. 118-119 , Ex. 10) There was also a class-wide plan. Although characterized by the parent and as an individual plan, it is not clear from the record that she was the only student utilizing the . characterized it as a typical class technique to encourage on task and . (T. 89-90) In any event, there is no evidence that it continued and appears to have been no longer in place by the beginning of the 2011-2012 school year. , the student’s teacher in that year, described the use of the class wide plan coupled with the use of cards to enable the student to and for her for doing so which was reported to have been very . (T. 253-254, Ex. K) It is noteworthy that the development of this approach was consistent with the IEP goal to teach the student to (Ex. 1-10), description of what her methodology would be in the recommended school to determine an appropriate positive reinforcement (T. 214-215) and the testimony of that the methods and measurement of the behavior goals should be left to the teacher and/or the counselor. (T. 106-111, 138 )
In the foregoing circumstances, I conclude that the failure to conduct an FBA and/or prepare a BIP is not a basis for concluding that a FAPE was not provided. Further, the student was attending at the time of the review and conducting an FBA to determine how the student’s behavior related to that environment would have diminished value where the CSE could not recommend but rather was charged with identifying an appropriate publically funded placement. See, Appeal No. 11-032.
2) Goals and Information Stated: The parent alleges insufficient or inappropriate goals. Initially, I note that the public school program provided substantially more instruction in then . (T. 194-196, Ex. E) Although the parent claims that certain math goals were not attainable, testified as to her expectation that they would have been in the program recommended. Indeed, testified that the student had in fact mastered by June 2012 although she had significantly than she would otherwise have received. ( T. 266) Accomplishment increases with regard to other math goals and the in the public school may well have occurred in the more intensive, for those subjects, public school environment. With regard to claims that the goals were insufficient because they did not include time (T.483, 484, 486), I note that the February 2011 progress reports indicates that the student already had substantial capacity in those areas. (Ex. 10) .Further, with regard to the failure to address certain difficulties with word endings, I note that there is no indication that that problem was brought to the CSE’s attention and it was not recommended by the . (Exs. 7,
10) I find that the goals addressed the student’s deficit areas and the inappropriateness of the goals specified by the parent’s witnesses and the alleged failure to articulate goals asserted in this matter does not support a conclusion that a FAPE has been denied. Similarly, I conclude that the IEP adequately describes the student’s strengths and weaknesses. The absence of detail concerning certain must be considered in connection with the infrequency of their occurrence at the time that the IEP was created and in those circumstances is de minimis With regard to the DOE’s failure to use the mandated IEP format, I note that the IEP provides information in all required areas and the failure to use the form is also de minimis.
3) program: The parent asserts that the DOE failed to establish that the student’s needs could be met in a class because the student requires small group instruction. The parent (T. 399), (T. 487) and (T. 287) each testified that the student cannot make progress in the proposed placement. However, the testimony of establishes that the class provides group and from the teacher and the classroom para and in this particular case that was augmented by the presence of additional adults. Further, although pined that a program would not be appropriate, I note that she is a year teacher and there was no testimony or evidence indicating that she had an knowledge as to classes. (T. 241) Similarly, there was no indication that the parent had any knowledge of how that program functions. In contrast, and credibly testified that they were familiar with programs and had concluded that this student could make meaningful gains with the supports the IEP provided. I find that testimony persuasive.
Accordingly, I conclude that the IEP is not substantively defective and that any procedural violations, whether considered individually or in the aggregate, did not constitute a denial of a FAPE
C. Recommended School
I have found the testimony of credible. That evidence shows that the student would be appropriately placed with students of a similar age and with sufficiently similar functioning levels, that her academic and social/emotional needs would be appropriately addressed and that mandated related services would be provided and the iEP appropriately implemented.
The parent asserts that the recommended school is not appropriate. She testified that she visited the school for a half-hour and met with an official who showed her the student’s class and answered various questions. (T.405) The parent was informed that services would be provided through an RSA and that the other students would be between years old which the parent believes would be inappropriate for this student. (T. 404-
405) She observed one student’s math workbook and concluded that the students were on a level. She believes that the school is too large for this student, that transitions would be for her and that her would emerge in this environment. (T. 401, 405,
429) The parent also reported that the student gets when there are a lot of people.
(T. 429) The student attended a for two summers and required a shadow even though she had eventually been put into a class of 10. (T. 431)
With regard to the parent’s experiences, however, I note that testimony rebuts what the parent was told about the students’ ages and the opinion she formed about all their math skills. Further, the parent acknowledged that the school was orderly (T. 428) and the operation of the school is, I conclude, likely to be more controlled than a general education day camp in a large building with typically developing children. (T. 431, 434)
had no knowledge of this particular school. They opined, however, that the class wide behavior system described by would not be effective for this student since, among other things, it required a . (T. 477) testified, however, that she develops systems for individual children when the classroom plan is not effective..
(T. 212-215, 225) Moreover, I note that described a system as having demonstrated effectiveness for this student with regard to one of the plans used by .
(T. 259)
**********
For the reasons discussed above, I find that the DOE has established that it offered a program and placement that was reasonably calculated to enable the student to make meaningful educational gains. Therefore, I conclude that it provided a FAPE. In these circumstances I do not address the parties’ other claims.
Order
This matter is DISMISSED.
Dated: September 7, 2012
________________________
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
1 IEP, 3/28/11, 20 pgs. Department of Education
2 Notice of Deferred Placement, 3/28/11, 1 pg. Department of Education
3 FNR, 4/4/11, 1 pg. Department of Education
4 Classroom Observation, 1/20/11, 1 pg. Department of Education
5 Counseling Update, March 2011, 1 pg. Department of Education
6 Update, February 2011, 1 pg. Department of Education
7 Progress Report & Goals, March 2011, 2 pgs. Department of Education
8 Social History Update, 6/7/10. 3 pgs. Department of Education
9 -Education Report, 6/7/10, 3 pgs. Department of Education
10 SE-Educational Progress, 2/21/11, 2 pgs. Department of Education
11 SE IEP, October 2011, 2 pgs. Department of Education
12 Meeting Notice, 2/15/11, 2 pgs. Department of Education
13 Parent’s Letter, 8/15/11, 1 pg. Department of Education
14 Parent’s Letter, 8/24/11, 1 pg. Department of Education
15 Contact Sheet, 1 pg. Department of Education
A Impartial Hearing Request, 2/28/12, 3 pgs. Parent
B Letter-Parent to CSE with confirm, 8/15/11, 2 pgs. Parent
C Letter-Parent to CSE with confirm, 8/24/11, 2 pgs. Parent
D Letter-Parent toCSE with confirm., 9/27/11, 3 pgs, Parent
E Daily Class Schedule, 2011-2012, 1 pg. Parent
F Enrollment Contract, 8/31/11, 2 pgs. Parent
G Addendum to Enroll. Contr., 8/31/11, 2 pgs. Parent
H Tax Returns, 2012, 2 pgs. Parent
I Due Process Response, 3/16/11, 3 pgs. Parent
J SE IEP, 2011-2012, 14 pgs. Parent
K Teacher Progress Report, 2/20/12, 2 pgs. Parent
L FNR received by Parent, 8/4/11, 1 pg. Parent
M SE IEP-End of Year, 2011-2012, 15 pgs. Parent
I Pre-Hearing Conference Memo, 1 pg. Impartial Hearing Officer
II Decisions – Compliance Date Extension Requests Impartial Hearing Officer
III E-Mail re Adjournment, 5/7/11 Impartial Hearing Officer
IV Parent’s Closing Memorandum Impartial Hearing Officer
V DOE’s Closing Memorandum Impartial Hearing Officer
VI E-mail re record closing date, 1 pg. Impartial Hearing Officer