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 20, 2012

January 8, 2013

Actual Record Close Date: January 18, 2013

Hearing Officer: Barbara J. Ebenstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2012

Attorney — Student

Parents

Legal Assistant — Student

Psychologist (via telephone) — Student

Teacher (via telephone) — Student

Attorney — DOE

Attorney — DOE

Teacher (via telephone) — DOE

Assistant Principal (via telephone) — DOE

Pathologist (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 8, 2013

Attorney — Student

Parents

Dean- (via telephone) — Student

Teacher- (via telephone) — Student

Executive Director- (via telephone) — Student

Attorney — DOE

This is New York City case #139855. On September 20, 2012 and January 8, 2013, I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. Section 1415(f)(3), regarding the special education of . at the New York City Department of Education Impartial Hearing Office at 131 Livingston Street, Brooklyn, New York. The delay between the hearing dates was due to Hurricane Sandy. This delay did not impact the Student’s education as she is in a unilateral placement.

, Esq. represented the New York City Department of Education (“DOE”) and , Esq. of Advocates for Children of New York, Inc. represented the Mother. A list of witnesses who testified and documents received into evidence is attached to this final decision. , was a Legal Assistant to on the first day of this hearing, and Department of Education attorney, was Ms ’s second seat on the first day. Opposing parties agreed to the presence of the second representatives.

ISSUE:

The sole issue before me is whether the Mother is entitled to retroactive direct payment for the Mother’s unilateral placement of (“ ) for the 2011 – 2012 school year.

PARENT’S POSITION

Although the Mother does not challenge the “individualized education program” (IEP) developed by the Committee on Special Education (CSE) on June 14, 2011, she believes that the DOE failed to offer a “free and appropriate public education” (FAPE) to . for 2011 – 2012 school year because the location of the program was not appropriate.

HEARING OFFICER EBENSTEIN: . . . My first question to the parent's counsel is: is the mother contesting the IEP itself or is she contesting the implementation of the IEP by failing to locate an appropriate school?

MS. : Well the IEP itself does have procedural mistakes. At this point, what we're really interested in is her having the school setting.

HEARING OFFICER EBENSTEIN: So what's the answer to that question?

MS. : The answer is we can't concede that the IEP is perfect, but we're not going to highlight the pieces of are improperly done. We really just what the purpose of this hearing is. (Tr. 95)

The Mother believes that with an appropriate education, and that equity favors her request for retroactive direct payment.

DEPARTMENT OF EDUCATION’S POSITION

The DOE contends that the IEP developed on June 14, 2011 and the public school offered for amounted to an offer of FAPE for the 2011 – 2012 school year. The DOE believes that is not an appropriate school for because it did not provide her with , and some of her teachers were not qualified. The DOE believes that equity does not favor the Mother as she signed a document that they believe to be an illusory contract.

STATEMENT OF FACTS

. is now a fourteen-year old student who has a , and some . The DOE “Committee on Special Education” (CSE) classified her disability as ” ” ( ), and that classification is not at issue in this impartial hearing.

Dr. , a post-doctoral fellow at , conducted a of over three days in August and September 2010. (Ex. R) On a Wechsler Intelligence Scale for Children (WISC-IV), scored 85 on verbal comprehension, 84 for perceptual reasoning, 65 on working memory, and 83 on processing speed. This gave her a full scale IQ of 84, which in the low average range. (Ex. R at 4, Tr. 151) completed the and it established that she was experiencing some “ .” (Ex. R at 12) Dr. testified that a school with over one thousand students “would not be ideal” for because she has never been in a school that big and it would be intimidating for her. (Tr. 152-3) Dr, did admit that could make progress in a school of over one thousand students. (Tr. 176)

The DOE conducted another psycho-educational assessment of . on April 3, 2011 less than a year after the evaluation. (Ex. 3) This second WISC-IV found that her verbal comprehension was , perceptual reasoning was , working memory was ( range), and processing speed was with a full scale IQ of . (Ex. 3 at 5) This second set of WISC-IV scores is not valid or reliable as the WISC-IV is not supposed to be administered within a year of its last administration. academic skills were scattered from a grade equivalence of in reading comprehension to a grade equivalence of in word reading. (Ex. 3 at 5)

, a parochial school, for kindergarten where she was held back a year. (Ex. R at 2, 326) Then she attended , which is a New York City charter school. attended the , a small private special education school, for fifth and sixth grades. (Id., Tr. 355-6) experienced bullying at the and the Mother did not think that she was receiving an appropriate education there, so her Mother did not want her to continue at . (Tr. 356) received both counseling and . (Tr. 343-4, 357)

While still attended school at the , the Mother completed an undated application to . (Ex. E) She wrote “has had a very difficult time this year because of bullying in school and it has been very difficult for her to go to school on a daily basis. (Ex. E at 3; Ex. 3 at 4) Past bullying is not an issue in this case, but avoiding it was part of the Mother’s motivation to have attend another school. sent the Mother an acceptance letter dated June 8, 2011 that accompanied a contract. (Ex. 12)

The Mother attended a June 14, 2011 CSE meeting to develop an IEP for for the 2011 – 2012 school year. (Ex. 7) This IEP is a forty-three-page document that provides with a special class of twelve students with one teacher in a community school. It also provides related services of therapy twice per week in a group of two and once per week individual; and counseling one time per week individual and one time per week in a group of three. (Ex. 7 at 32) The Mother did not share the information that had just been accepted at with the CSE.

The DOE did not send the Mother a “final notice of recommendation” (FNR) for until August 9, 2011. (Ex. 8) The school has approximately eleven hundred (1100) students in grades six, seven, and eight. (Tr. 30-1) There were four classes in during the 2011 – 2012 school year, but there was only one eighth grade class and it was taught by Ms. (Tr. 81) . would have been in that class. (Tr. 99-100)

Some of the program is departmentalized so the class stays together for five of the eight periods per day. (Tr. 100) The school offers electives, including art, ceramics, music, extra physical education, and others. (Tr. 102-3) Some students receive additional reading and others take a foreign language. Although this class was a it had only seven students in the beginning of the school year and it ended the year with nine students. (Tr.

85) The eighth grade special education class watches short Brain Pop videos on Friday. (Tr. 45, 85) Mr. , the assistant principal at , testified that the school could have implemented the June 14, 2011 IEP for . (Tr. 104)

has three teachers, two of whom are DOE employees and one is an outside contractor. (Tr. 101, 130) Mr. believes that the three speech therapists provide all the therapy on the students’ IEP’s at the school. (Tr. 101) Ms. is the speech teacher who provided speech therapy to all of the students in Ms. ’s class, and she would have provided speech therapy to . (Tr. 124-5, 133) She believes that the two DOE therapists provided services to most of the students and the rest were provided services by the outside contractor. (Tr. 132)

The Mother attempted to visit the recommended school, but it was closed at that time. She testified that she called the recommended school in September 2011, but that someone at the school told her that they had no more room for more children there. (Tr.

334) She did research on the public offered site. (Tr. 348) She ultimately did visit the recommended school for about forty-five minutes on November 10, 2011, which was a Friday. (Ex. 9, Tr. 349-50) She was in the recommended class for fifteen to twenty minutes while the children were watching a video. (Tr. 336, 350) She found that the school was too big for , and she was concerned about teaching methodology and potential bullying. (Tr. 340)

The Mother’s attorney had sent a letter to the DOE rejecting the public placement, and giving notice that the Mother intended to unilaterally place on August 23, 2011 before the Mother visited the school site. (Ex. B) The Mother also unilaterally placed at Winston for the 2011 – 2012 school year before she could visit the recommended school site.

The Mother signed a contract with for the 2011 – 2012 school year on July 14, 2011 before she received the FNR. (Ex. 10 at 2, Tr. 352) The contractual payment schedule includes a $500. non-refundable deposit due July 22, 2011 with the executed contract; $24,250. by August 1, 2011; and another $24,250. By October 1, 2011 for a total of $49,000. (Ex. 10 at 1) Although the Mother signed the contract, she never made any payments to Winston at all. (Ex. 11; Tr. 340, 352-3)

Winston took no steps to have ’s Mother pay tuition for the 2011 – 2012 school year. Winston did not send invoices to the Mother. (Tr. 357) She heard nothing about money from Winston. (Id.) The contract requires the private school to terminate the student for the parents’ failure to pay tuition:

“4. You agree that if you fail to pay Deposit or Tuition when due, shall have no further obligation to provide educational services to Student hereunder. If Student already commenced classes, thirty (30) days after such nonpayment, student will be barred from attending class unless all amounts currently due have been paid in full . . .

“(emphasis added)

(Ex. 10 at 1)

Despite the in this contract that “student will be barred from attending class,” in school for the full school year and never charged a late charge. (Tr. 353-5) Furthermore, permitted the Mother to re-enroll for the 2012 – 2013 school year without any payments for 2011 – 2012 school year. (Tr. 353, 359)

The Mother never had any discussions with anyone from about payment. (Tr.

354-5) She filed this impartial hearing complaint for the 2011 – 2012 school year after the school year was over even though never sent her an invoice during the entire school year. (Tr. 358) gives parents some “flexibility” on the payment schedule despite the terms of the contract when they are “in the process” of obtaining funds for the tuition from another source. (Tr. 376-8) Parents send their tax returns to a third party that sends the private school a report on how much the parents can afford to pay. (Tr. 383)

But sometimes, sends unpaid contracts to collections “and/or the child may have to dis- enroll from .” (Tr. 373)

“And what that usually means is that families who need a limited amount of help, we can give them a small amount and that will allow the child to be here. It's usually the way, not always, but often the way the financial aid is distributed, because it so limited. So, what that turns out to mean is that if a family needs a very large or significant amount of financial aid, often we're not able to help them. But again, like everything else we do, we're two campuses, but ultimately, a very small school. So, all of these determinations are made individually by the business account, from the office, taking a lot of factors into including the information we received third party agency.

(Tr. 384)

At this impartial hearing, Mr. , the executive director of , was surprised to discover that ’s Mother paid nothing toward tuition for the 2011 – 2012 school year, and that she was not “in the process” of obtaining alternative funding during the entire 2011 – 2012 school year” during that entire school year.. (Tr. 385) He could not explain it. I find that neither nor the Mother followed the terms of the contract as a matter of fact.

Winston is an unapproved private special education school for approximately two hundred students who have , and . (Tr. 266) It provides small group instruction, but it does not provide any related services, such as . (Tr. 272)

Winston used a daily FOCUS period of one-to-one instruction for each student. ’s FOCUS teacher during the 2011 – 2012 school year was . Ms. has no certification, no licensing, no degree in education, and no training outside in special needs students. She is not familiar with instructional terminology. (Tr. 196-7) Before becoming an instructor at , she was in marketing for the Discovery Channel. (Tr. 217) Her only training in education is some in-service provided by (Tr. 198) Her total understanding of the term “borderline” is “very low.” (Tr. 217) I find as a matter of fact that Ms. is a fact witness, and I gave her opinion on the appropriateness of for little weight.

Ms. testified that she uses “ ” instruction, but she did not mean that she uses a multi-sensory curriculum. She meant that she adds sensory experiences to her instruction, such as watching videos on the computer. (Tr. 189, 213) Ms. did provide some life skills instruction for Upon learning that cannot make change of one dollar, Ms. worked on the skill with and took her into the community to buy hot chocolate to practice the skill. (Tr. 215)

had poor attendance at during the 2011 – 2012 school year. She was times . (Ex. 18, Ex. 16) She . (Id , met with to discuss her , could not explain why she . (Tr. 224, 230)

The Mother testified that . (Tr. 360) But she also testified able to go to school on her own, so she could have gotten to . (Tr. 361) I note that the Mother had previously reported . When Mother reported that she “. . . it has been very difficult for her to go to school on a daily basis.” (Ex. E at 3)

explained that her during the 2011 – 2012 school year. (Ex. 17 at 1) In the spring term in all classes. (Ex. 16) s policy dictates that students who miss more than . Ms. explained that initially should have received failing grades in all courses. attended summer school in 2012, and brought her grades “ -“ in all academic subjects. (Ex. 16; Tr. 292-3)

The Mother filed an impartial hearing complaint to request direct payment to the for the 2011 – 2012 school year on July 13, 2012 after the end of the 2011 – 2012 school year. (Ex. 1) Meanwhile, she re-registered at for the 2012 – 2013 school year, and attends school there now.

CONCLUSIONS OF LAW

The Mother seeks retrospective direct payment to the private school pursuant to Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). The U.S. District Court for the Southern District of New York applied the reasoning and criteria of School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985) and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) to grant a request for retroactive direct payment when the parents established that they could not afford to pay the tuition. The remedial powers set forth in the IDEA are also applicable to impartial hearing officers in fashioning Burlington/Carter relief. Forest Grove Sch. Dist. v. T.A., 129 S. Ct. 2484, 2494, n.11 (2009)

FIRST CRITERION

The first criterion of a Burlington/Carter analysis is whether the school district offered a FAPE. A FAPE is offered to a student when (a) the board of education 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. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005) (quoting Bd. Of Educe. v Rowley, 458 U.S. 178, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). A school district must provide "an IEP that is likely to produce progress, not regression, and . . . affords the student with an opportunity greater than mere trivial advancement.'" Cerra, 427 F.3d at 195 (citations omitted). The IEP must be "reasonably calculated to provide some meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the “least restrictive environment” (LRE). 20 U.S.C. §1412[a][5][A]; 34 C.F.R. §§300.114[(a)(2)(i); 34 C.F.R. §300.116[a][2]; 8 NYCRR §200.1(cc); §200.6[(a)(1); See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009), and P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). Although the statute ensures an "appropriate" education, it is not one that provides “everything that might be thought desirable by loving parents." Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

The Second Circuit recently held that:

“. . . we hold that courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider “retrospective” testimony regarding services not listed in the IEP. . . . At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. However, we reject a rigid

“four-corners rule” that would prevent a court from considering evidence explicating the written terms of the IEP.”

R.E. v. New York City Department of Education, 694 F.3d 167, 189

(2d Cir. 2012)

In the matter before me, the June 10, 2011 CSE was properly constituted and it developed a forty-three page IEP that included a small class with individual and group speech therapy and counseling. The Mother did not specifically challenge to the IEP. I find that the June 10, 2011 IEP for . for the 2011 – 2012 school year was appropriate for her.

“The prospective nature of the IEP also forecloses the school district from relying on evidence that a child would have had a specific teacher or specific aide. At the time the parents must decide whether to make a unilateral placement based on the IEP, they may have no guarantee of any particular teacher.”

R.E. v. New York City Department of Education, 694 F.3d 167 (2d Cir. 2012)

In this unique set of facts and circumstances, there was only one possible eighth grade 12:1 class at the proposed school site. Although the teacher might have changed, the class is known. The class had room for in September 2011 and for the entire school year. It provided self-contained special education with opportunities for in specials and lunch. The school site therapy.

The Mother’s claim is that the location at is not appropriate for visiting the recommended program before the beginning of the 2011 – 2012 school year. I find that the DOE does not have “ ” to argue that the Mother did not make a timely site visit to . But I also note that the Mother did not make her short site visit until November 2011 when there is no evidence that she could not have visited in September 2011.

The site because the school is . The Mother was concerned in the bigger school although during the prior school year. At that time, and that is also a small private special education school. So whatever was, the size of the school is not the problem.

The Mother, through her attorney, claims that another reason she rejected the public school site is that a percentage of the students there must use “related service authorizations” (RSA’s) to obtain outside the school.

“Ms. R(.)'s 10-day notice also rejected , citing statistics from the DOE's Special Education Service Delivery Report for the 2010-2011 school year, Parent's Exhibit Z, the most updated report at time on the provision of Special Education Services at notable percentages of students who require speech and counseling but did not receive those related services at the school that year greatly concern Ms. , since greatest areas of weakness are her speech and language abilities. (Tr. 405)

Ex. Z reports that in 2010 – 11, 71 of 76 students there who are supposed to receive counseling did receive it, and only 7 of the 71 who needed were awaiting it. Furthermore, the Mother placed that has no related services at all, and she did not provide

The Mother also suggested that the methodology at the public site was not appropriate because it included “ . I note that teacher testified that she has watch videos as part of a “multi-sensory” program. I find this argument to be of no merit.

I find that the June 14, 2011 IEP was appropriate and that the DOE established that it offered a school site in which the IEP could have been implemented. I find that the DOE offered a FAPE for the 2011 – 2012 school year, and it has carried its burden on the first criterion.

SECOND CRITERION

Having found that the DOE has carried its burden on the first criterion, I do not have to consider the second or third criteria. See Application of a Child with a Disability, Appeal No. 02-092 But I will do so to complete the record in this case.

With respect to the second criterion of a Burlington/Carter analysis, the parents bear the burden of proof with regard to the appropriateness of the services obtained for the child. Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No., 94-29 In order to meet that burden, the parents must show that the services were "proper under the Act", (Individuals with Disabilities Education Act) School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985), i.e., that the private school offered an educational program which met the child's special education needs. Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 96-85. "The standards for determining whether a private school placement is 'appropriate' under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement." A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010).

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. . . .but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . . “

Gagliardo, 489 F.3d at 112

The U.S. District Court for the Eastern District of New York applied the prospective snapshot approach to the second criterion of Carter/Burlington analysis for reimbursement: “. . . this Court sees no reason why the parents' choice of a program should not be evaluated under the same standards, looking at the program at the time that the parents selected it and determining whether, at that point, it was a program reasonably calculated to provide the child with an educational benefit.” C.B. and R.B. on behalf of W.B., v. New York City Department of Education, 108 LRP 2761, (E.D.N.Y., 2005)

In the instant matter, the Mother unilaterally placed for the 2011 – 2012 school year. Winston provides small special education classes for students who have disabilities similar to . Winston has some certified teachers who address some of instructional needs.

The Mother testified that the DOE 2011 and that the findings were that needs . (Tr. 328) She also admitted that an earlier evaluation conducted by similar results. (Id.) Furthermore, . I find that the Mother knew of when she unilaterally placed at as a matter of fact. She was also aware that the proposed IEP recommended therapy and counseling. (Tr. 343)

’s primary , and all evidence and testimony establishes her need for individual and group not provided with outside of the private school during the 2011 – 2012 school year. (Tr. 344)

Dr. for her. The teacher who worked with , suggested counseling for Kayla to address “why she wasn’t coming to school and why she was sad.” (Tr. 282) Furthermore, during the 2010 – 2012 school year. does not , and the Mother knew that when she enrolled . In addition, she did not outside the private school despite the suggestion that she do so. (Tr. 344, 365) All testimony and documentary evidence establishes that would have been addressed in impacted her learning and grades at . I find that the lack of counseling negatively impacted s learning and grades at during the 2011 – 2012 school year.

Private school teachers do not have to be certified in order for the parents to obtain reimbursement for their unilateral placement under a Burlington/Carter analysis. That does not mean that the teachers can have no real background in education. teacher is not just uncertified, but she also has no education degree, no education courses, and no experience in education. I find that despite her good intentions, she was not qualified to work with . during the 2011 – 2012 school year.

Lastly, the fact that this impartial hearing was brought a year after entered suggests some retroactive assessment. Even using such a retroactive hindsight approach, the record does not establish that for the 2011 – 2012 school year. To the contrary, in the spring of 2012 due at least in part, to her

MS. : Her homework, participate in classes, and the things that we look for while we're grading. So, I would say that was a large part of . (Tr. 321)

When during the spring of 2012, and to address the issue.

I find that Winston was not an appropriate school for for the 2011 – 2012 school year. Mother has not carried the burden to establish that was an appropriate placement because it did not provide , who met with her daily was not qualified.

THIRD CRITERION

The third criterion on a Carter/Burlington analysis is whether equitable considerations support the parent's claim. Having found that the DOE offered FAPE and that Winston was not an appropriate school, I do not have to consider equity. See Application of a Child with a Disability, Appeal No. 02-092 But I will do so to complete the record in this case.

The Mother attended the June 14, 2011 CSE meeting. She did eventually visit the recommended placement in November 2011 after she received the FNR in August when the public schools were closed. These facts support equity favoring the Mother’s claim.

The DOE attorney referred to exhibit 10 is an “illusory contract” in her closing statement. (Tr. 400) Basic contract law dictates that all contracts be supported by consideration, but the Mother provided no financial or other consideration for this contract. In this respect, the current document is distinguished from the contract in Mr. and Mrs. A, o/b/o D.A. v New York City Department of Education and Joel Klein, 769 F. Supp. 2d 403, 56 IDELR 42 (S.D.N.Y., 2011). In that case, the entered into a monthly payment plan with the parents pending resolution of their request for public funding. Under that plan, the parents paid off their tuition debt in monthly installments of one hundred dollars ($100). As of the time of the impartial hearing, the parents had already paid $1,100 to the . A representative testified at the impartial hearing that if the parents failed to make their monthly payments, the School would take legal action against them.

In this case, the Mother made no payments herself and she did not pursue payment from the DOE during the 2011 – 2012 school year, but did nothing about it. in the school despite mandatory language in the contract that she not remain in school without payment. even permitted the Mother to re-enroll for the 2012 – 2013 school year. Upon questioning, the Mother did not even know why she had requested this impartial hearing when had never sent her an invoice for the 2011 – 2012 school year.

Essentially, . was on a full scholarship during the 2011 – 2012 school year. I find that the Mother has no obligation to pay tuition at for the 2011 – 2012 school year. As neither party followed the contract, I find that it is illusory.

I find that equity does not favor the Mother’s request for payment for all of the above reasons.

CONCLUSION

The Department of Education offered a FAPE on the first criterion. The parent did not establish that Winston was an appropriate placement for for the 2011 – 2012 school year on the second criterion. Equity does not favor the Mother on the third criterion.

ORDER

There is no order in this matter. Dated: January 29, 2013

____________________________________

BARBARA J. EBENSTEIN, ESQ.

Impartial Hearing Officer

BJE:jj

PLEASE TAKE NOTICE

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

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

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

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

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A Not Admitted into Evidence B Ten-Day Notice, 8/23/11, 5 pp. C ( Affidavit of Payment, 8/30/12, 1 p. D Enrollment Contract, 7/14/11, 2 pp. E Application, Undated, 3 pp. F Acceptance Letter, 6/8/11, 1 p. G Description, 3 pp. H Program Description, 1 p. I Class Schedule, 2011-12, 1 p. J Teacher Qualifications, 1 p. K test reports, dated 6/14/11, 1 p. L Report Card, 2011-12, 1 p. M Attendance Record, 2011-12 1 p. N Class Profile, 4 pp. O Fall Report, 2011, 8 pp. P Winter Report, 2012, 6 pp. Q Final Report, 2012, 6 pp. R Evaluation, 8/19/10, 15 pp. S Not Admitted into Evidence T Social History, 4/3/11, 2 pp. U , 4/3/11, 5 pp. V Language Evaluation, 5/16/11, 7 pp. W Due Process Response, 7/20/12, 3 pp. X Parent Visit Schedule, November 2011, 1 p. Y Class School, 1 p. Z Special Education Service Delivery Report, 2010-2011, 1 p. AA Special Education Service Delivery Report, 2011-2012, 1 p. BB School Survey, 2011-12, 19 pages

DEPARTMENT OF EDUCATION

1 Due Process Complaint, 7/13/12, 4 pp. 2 Due Process Response, 7/20/12, 3 pp. 3 , 4/3/11, 5 pp. 4 Social History Update, 4/3/11, 2 pp. 5 Vocational Assessment, 1/25/10, 2 pp. 6 Not Admitted into Evidence 7 IEP, 6/14/11, 43 pp. 8 Final Notice of Placement, 8/9/11, 1 p. 9 Parent Visit Calendar, 2011, 1 p. 10 Enrollment Agreement, 2011-12, 2 pp. 11 Affidavit of Payment, 8/30/12, 1 p. 12 Acceptance Letter, 6/8/11, 1 p. 13 Application, Undated, 3 pp. 14 Standardized Test Reports, 6/4/12, 1 p. 15 Class Profile, 2011-2012, 4 pp. 16 Report Card, 2011-2012, 1 p. 17 Final Progress Report, 2012, 6 pp. 18 Attendance Report, 8/13/12, 1 p.