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: September 10, 2012

October 17, 2012

February 7, 2013

February 28, 2013

April 9, 2013

Actual Record Closed Date: May 14, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

District Representative DOE 09/10/12 10/17/12 02/07/13 02/28/13 04/09/13 IEP Teacher DOE 10/17/12

DOE 10/17/12

02/07/13

Junaisha Carter (T) Attorney PARENT 09/10/12 Scott Cohen Attorney PARENT 10/17/12

02/07/13

02/28/13

04/09/13

Mother PARENT 10/17/12

02/07/13

02/28/13

04/09/13

Father PARENT 10/17/12 Executive Director PARENT 02/07/13

Program Director PARENT 02/28/13

Education Coordinator PARENT 04/09/13

On July 2, 2012, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the of 1973, concerning a dispute between the Parent of an year old student attending a private school and the New York City Department of Education (“DOE”) Home District: Service District: concerning the program. After adjournments were granted on consent or for good cause, a “pre-hearing conference” was held on September 10, 2012. Thereafter, the impartial hearing was held on October 17, 2012, February 7, 2013, February 28, 2013 and April 9, 2013. The parties opted to submit written closing statements which were due and received on or about May 9, 2013. (T-474-6) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student’s Individualized Education Program (“IEP”) dated March 8, 2011 is procedurally and substantively flawed. (See Accordingly, the Parent unilaterally placed the student a private school for the 2011-2012 school year. (Id.) The Parent seeks tuition reimbursement for the student’s tuition, related services and transportation for the 2011-2012 school year. The Parent did not request an Order on Pendency in this case. (T-5)

THE DOE’S CASE

The DOE argues that at a Committee on review was held on March 8, 2011 at which the student was classified as “ ” and was recommended for a in a setting in a community school, with related services of team was duly constituted under law and consisted of the Parent, the Grandmother, the District Representative, the School a Parent Member, Teacher, a , the and the student’s private school Educational Coordinator. (T-31) A “general education teacher” did not attend and the CSE did not consider a general education setting for the student. (Id.) However, the student’s Grandmother is a and did attend the meeting. (Id.)

The DOE further argues that a timely Final Notice of Recommendation (“FNR”) was issued in this case on May 19, 2011. (T-32) The CSE provided the Parent with meaningful opportunity to participate in the decision making process. (Id.) The student’s Individualized Education Program (“IEP”) dated March 8, 2011 is reasonably calculated to provide meaningful educational benefit and avoid regression. (Id.) The recommended DOE class, setting was appropriate to meet the student’s needs. (T-33) Accordingly, the DOE has offered the student a “free and appropriate public education” (“FAPE”) in the “least restrictive environment” (“LRE”) for the 2011-2012 school year. (T-34)

The DOE called (2) witnesses to testify on its behalf and submitted (20) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence in support of and against the DOE’s case is incorporated in the decision below.

THE PARENT’S CASE

The Parent “reserved” on making an opening statement and then ultimately did not do so. (T-34 & 249)

The Parent called (4) witnesses to testify on her behalf and submitted (21) documents into evidence. In sum, substance and relevant part, the testimony and documentary evidence in support of and against the Parent’s case is incorporated in the decision below

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Act (IDEA) (20 U.S.C. §§ 1400-1482) are

(1) to ensure that students with have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with and parents of such students are protected. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (See Rowley, 458 U.S. at 203) However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and Rowley, 458 U.S. at 189) The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (See Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and Walczak, 142 F.3d at 132) Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An appropriate educational program begins with an IEP that accurately reflects the results of to identify the student's needs (34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087)

The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 37071; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

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

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

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

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

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

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

I first turn to the question of whether the DOE offered the student a FAPE for the 2011-2012 school year. As stated above, a FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Rowley & Cerra, supra)

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

Here, the record indicates that the student’s CSE team on March 8, 2011 was composed of the Parent, the student’s Grandparent, a representative from the student’s private school, a , a certified acting as the District Representative, a Parent Member, a from the student’s private school, an Educational Coordinator from the student’s private school, a . (T172-3 & D-5) The Parent asserts that the CSE team was unlawfully composed in that there was no General Education Teacher in attendance. (T-173, 352 & 442) The DOE argues that the student’s Grandmother attended the meeting meetings. (T-174) The Parent counters by arguing that the student’s Grandmother did not “participate” as a “ at the meeting. (T-235-6) What’s more, the DOE did not ask the student’s Grandmother to act as the General Education Teacher at the meeting. (T-235-6 & 442)

The IDEA and its implementing regulations require that the CSE include “at least one regular education teacher of such child (if the child is, or may be, participating in the regular education environment).” (See 20 U.S.C. § 1414[d][1][B][ii], 34 C.F.R. § 300.344[a][2] and 8 NYCRR 200.3[c][2][ii] - emphasis added). The regular education teacher member “shall, to the extent appropriate, participate in the development of the IEP of the child, including the determination of and strategies and the determination of , program modifications, and support for school personnel.” (See 20 U.S.C. § 1414[d][3][C], 34 C.F.R. § 300.346[d] and 8 NYCRR 200.3[d]). The regular education teacher must also “participate in discussions and decisions about how to modify the general curriculum in the regular classroom to ensure the child's involvement and progress in the general curriculum and participation in the regular education environment” (34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 24), and participate in any review and revision of the IEP. (See 20 U.S.C. § 1414[d][4][B], 34 C.F.R. § 300.346[d] and 8 NYCRR 200.3[d])

In its official interpretation of the regulations, the U.S. Department of Education explains that the regular education teacher member “should be a teacher who is, or may be, responsible for implementing a portion of the IEP, so that the teacher can participate in discussions about how best to teach the child.” (See 34 C.F.R. Part 300, Appendix A, Notice of Interpretation, Section IV, Question 26) The child's regular education teacher’s membership in the CSE is particularly important to meeting the statutory requirement that the IEP explain how the child's needs will be met so that the child can be involved in and progress in the general curriculum. (See 64 Fed. Reg. 48, p. 12583)

In addition, it is critical that at least one regular education teacher of the child be a member of the CSE and provide input on appropriate supplementary aids and services, including program modifications and supports for school personnel given the IDEA's emphasis on, to the maximum extent appropriate, educating children with in regular classes with with appropriate and services. (See 64 Fed. Reg. 48, p. 12591)

Education Law §4402(1)(b)(1)(b) permits certain members of the CSE to serve in two capacities, but the statute does not authorize a administrator or a student’s special education teacher to serve also as the student’s regular education teacher member of the CSE. (SRO No. 01-083) The regular education teacher participating in the CSE should not only be appropriately certified to teach the student, but should also be a teacher who is, or may be, responsible for implementing a portion of the IEP. (SRO No. 03-015 and 02-080)

Although the DOE cannot always be expected to know who the student’s regular education teacher will be prior to the CSE meeting, it should nevertheless have sufficient information about the student to designate a regular education teacher who is not only appropriately certified to teach the student, but is also teaching in one of the programs which might be appropriate for the student. (See SRO No. 02-080, 01-105 & 01-083)

The DOE argues that based on the student’s profile, her cognitive and academic standing and the meeting in general, they really felt that the student could not function in the general education setting. (T-174) The student’s dated February 15, 2011 was received in evidence on behalf of the DOE. (D-16) In relevant part, the describes the student as follows:

Based on the and reports and the recorded testimony cited above, I find that the student was not participating in a regular education environment at the time of the CSE meeting, nor was it likely that she would be for the 2011-2012 school year. Accordingly, I further find that the absence of a general education teacher at the student’s March 8, 2011 did not result in a denial of FAPE and that the student’s CSE team on March 8, 2011 was duly constituted under law. (See 20 U.S.C. § 1414[d][1][B][ii], 34 C.F.R. § 300.344[a][2] and 8 NYCRR 200.3[c][2][ii])

As stated above, an appropriate educational program begins with an IEP that 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. (34 C.F.R. § 300.320[a][1], 8 NYCRR 200.4[d][2][i]), 34 C.F.R. § 300.320[a][2], 8 NYCRR 200.4[d][2][iii]), 34 C.F.R. § 300.320[a][4], 8 NYCRR 200.4[d][2][v] and SRO Nos.: 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-

09) Here, the student’s IEP dated March 8, 2011 recommends the student placement in a ”, ratio. (D-5) The IEP also provides for the student to receive ” and notes that the student is (Id.) Such a recommendation is wholly consistent with the student’s

The record evidences that the Parent did participate in the CSE meeting to a meaningful degree. I find that the resulting IEP dated March 8, 2011 is reasonably calculated to enable the student to receive educational benefits. (See Rowley & Cerra, supra) For all of the reasons stated herein, I further find that the DOE offered the student a FAPE for the 2011-2012 school year.

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

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief as delineated in her DPC dated June 29, 2012 is DENIED. Dated: May 30, 2013

EDGAR DE LEON, ESQ.

Impartial Hearing Officer

EDL:gc

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO RECORD

Number/Letter Title Dated For # of Pages

01 Resolution Response 07/03/12 DOE 01

02 Notice of Resolution Meeting 07/03/12 DOE 03

03 Due Process Response 07/11/12 DOE 03

04 FNR 05/19/11 DOE 01

05 IEP/CSE 03/08/11 DOE 18

06 Conference Agenda Sheet 03/08/11 DOE 12

07 03/08/11 DOE 02

08 Fax 03/15/11 DOE 03

09 Teacher Report 03/08/11 DOE 05

10 03/07/11 DOE 01

11 Fax Confirmation & Note 03/07/11 DOE 02

12 Fax Confirmation & Note 03/04/11 DOE 02

13 Progress Note 03/02/11 DOE 02

14 03/01/11 DOE 01

15 CSE/IEP Appointment Letter 02/28/11 DOE 01

16 02/15/11 DOE 05

17 02/15/11 DOE 07

18 01/31/11 DOE 01

19 Closing Statement 05/09/13 DOE 12

A Impartial Hearing Request 06/29/12 PARENT 08

B Letter & Fax Report 06/09/12 PARENT 05

C Letter from 07/08/11 PARENT 02

D Letter to 08/09/11 PARENT 02

E Letter & Fax Report 10/06/11 PARENT 04

F IEP 04/13/12 PARENT 18

G Forms 01/25/11 PARENT 04

H Report Card 2010-2011 PARENT 01

I Teacher Report 03/01/12 PARENT 05

J Affidavit 08/16/12 PARENT 01

K Tuition Contract 05/08/11 PARENT 02

L School Program Description undated PARENT 01

M School Class Schedule 2011-2012 PARENT 01

N Attendance Record 2011-2012 PARENT 01

O Proof of Payment various PARENT 17

P NYC School Survey 2009-2010 PARENT 17

Q NYC School Survey 2010-2011 PARENT 16

R NYC School Survey 2011-2012 PARENT 15

S NYC Progress Report 2010-2011 PARENT 07

T NYC Progress Report 2011-2012 PARENT 08

U Tax Return 2011 PARENT 02

V Closing Statement 05/09/13 PARENT 32