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: June 15, 2012

October 15, 2012

November 27, 2012 Actual Record Close Date: December 14, 2012 Hearing Officer: James P. Walsh, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 15, 2012

Father — Student

Attorney — Student

District Representative — DOE

Special Education Teacher (via telephone) — DOE

Special Education Teacher (via telephone) — DOE

Unit Coordinator- (via telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 15, 2012

Father — Student

Attorney — DOE

Educational Director - — DOE

Master Lead Teacher and Lead Teacher Supervisor- — DOE

(via telephone) — DOE

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 27, 2012

Mother — Student

Attorney — Student

Pathologist (via telephone) — Student

Occupational Therapist- (via telephone) — Student

District Representative — DOE

The Matter of . (hereinafter referred to as “Student”) came before me for determination in accordance with the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1) and Article 89 of the Education Law of the State of New York, on June, 15, 2012, October 15, 2012 and November 27, 2012. The undersigned had been appointed by the Impartial Hearing Office of the Department of Education of the City of New York to preside over this matter by notification dated March 27, 2012. The Actual Record Close Date was December 14, 2011.

The proceeding was initiated by Parents by the filing by the Law Office of , Parents’ attorneys, of a Due Process Complaint Notice, dated March 27, 2012 and received by the New York City Department of Education’s Impartial Hearing Office on that date (Exhibit A). Parents allege that District and its Committee on Special Education (C.S.E.) failed to offer Student a free, appropriate public education (FAPE) for the 20112012 school year, in that it failed to have a properly constituted Committee and failed to prepare a procedurally- or substantively- appropriate Individualized Education Program (I.E.P.) at its April 12, 2011 meeting, at which it planned for Student’s special education program for the 2011-2012 school year (Exhibit 1). Parents alleged that the Committee failed to review appropriate documentation and challenged the appropriateness of the Program’s Goals and Objectives and seek an Order requiring the direct payment of tuition to for the costs incurred by their unilateral placement of Student at such facility for the 2011-2012 school year.

At the time of the challenged Committee meeting of April 12, 2011, Student was just about nine years old, having been born on April 26, 2003. According to the testimony of her mother, Student had received early instruction at ), for Pre-School. Student was placed by Parents at at the commencement of the 2008-2009 school year and has continued at such placement since that time. Student has a clinical diagnosis of (Exhibit F). In a Report issued by Student’s Therapist at the end of the 2010-2011 school year, Student was described as having , , (Exhibit F). A Report by Student’s , issued at the end of the 2010-2011 school year, noted that Student had deficits in both gross motor and fine motor skills, in the latter area unable to effectively control and manipulate objects such as writing tools, buttons and \beads (Exhibit P). A Report by Evaluator G. Dhavale, dated December 5, 2011 (Exhibit E) noted that Student displayed numerous interfering behaviors, .

District’s Committee on Special Education (C.S.E.) met on April 12, 2011 to prepare Student’s Individualized Education Program (.I.E.P.) for the 2011-2012 school year. Present at the meeting were a Special Education Teacher Assigned to the Committee, who served as both the Committee’s District Representative and Special Education Teacher, School Psychologist , a School Social Worker and a Parent Member and Parent. Participating at the Meeting by telephone were Student’s Occupational Therapist at Education Center C. Klinger, M. Randall, Student’s Therapist at , Student’s Classroom Teacher N. Barnett and S. O’Neill, Program Director at Education Center, all of who, participated for the entire meeting. As a result of that meeting, an I.E.P. was issued (Exhibit 1). The I.E.P. found that, in the area of Reading, Student functioned at a Beginning Kindergarten level; in Writing at a mid PresKindergarten level, and in Math at a Kindergarten level. The Committee noted Student’s need for a small, structured class. The Committee classified Student as having and recommended that Student receive her special education program for the 2011-2012 school year in a Special Class in a Specialized School having a staffing ratio of 6:1+1, together with the Related Services of , four times weekly, thirty minutes per session, individually; Physical Therapy twice weekly, thirty minutes per session, individually; and Speech/Language Therapy, four times weekly, forty-five minutes per session, individually and once weekly, forty-five minutes per session, in a group of two. The I.E.P. also recommended the services of a Behavior Management Paraprofessional five days a week for one-hundred minutes per day (Exhibit 1). It is clear that Parent and all of the attendees from disagreed with the Committee recommendation of a classroom, contending that Student required the intense instruction Student was then receiving at Reach for the Stars Education Center. Thus, it is clear that the Committee recommendation under review was not made on consensus, but was, rather a determination made by those Committee members employed by the Department of Education – and, indeed, where no consensus can be achieved, by the District Representative. However, I find it was an appropriate exercise of the authority resting in the District Representative in light of the lack of consensus

Thereafter, Parents were issued a Final Notice of Recommendation, dated June 4, 2011, offering Student placement in a class at , together with the Related Services recommended by the C.S.E. Parent advised the District, by letter dated June 16, 2012 (ExhibitU), that she had visited the proffered placement, spoken to the classroom teacher but had not seen the program, but felt that it would be inappropriate for Student. Parent thereafter returned and visited the class and determined that such was inappropriate for Student. Parent, by correspondence dated June 28, 2011(Exhibit V), advised District of her findings and advised that Student would be re-enrolled at for the 2011-2012 school year (Exhibit U) and that Parents would be seeking reimbursement. On March 27, 2012 Parents caused to be filed their Due Process Complaint, in which Parents sought not reimbursement, but Prospective Funding for such unilateral placement (Exhibit A).

It has been established that Boards of Education may be required to pay for educational services obtained for a child by the child’s parent, if (1) the services offered by the Board of Education were inadequate or inappropriate; (2) the services selected by the Parents were appropriate and (3) equitable considerations support the Parents’ claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 01-052). Further, the fact that the facility selected by the Parents to provide special education services to the Child had not been approved as a school for children with disabilities by the State Education Department of the State of New York is not dispositive of the Parents’ claim for tuition reimbursement (Florence County School District 4 et al. v. Carter by Carter, 510 U.S. 7 [1993]). In both decisions, the Court noted that:

“Parents who unilaterally place a student in a private educational facility … do so at their own financial risk”

(see 471 U.S. 359 at 373)

Further pronouncements by various courts expanded the concept of reimbursement to one of prospective tuition authorization (Connors v. Mills, 34 F. Supp 2d 795 (N.D.N.Y.

1998) and even to retrospective tuition payment (Mr. sand Mrs. A. v. New York City Department of Education, Civ. 09-5097 (S.D.N.Y. 2011). However, in all of the decisions expanding on reimbursement, the Burlington Prerequisites were maintained.

Generally, in applying the three-prong standard enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in my consideration of the issues presented, that I first determine whether or not the School District offered to the Student a free, appropriate public education. The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404(1)(c)). Under the guidelines established by Burlington and Carter, should I determine that District offered Student an appropriate educational program, my inquiry into Parents’ request would cease at that point, for if a district has offered an appropriate program, Parents’ right to the requested relief must be denied. Under the same guidelines, if it is determined that District failed to establish the appropriateness of its program, I must then determine the appropriateness of the Parents’ unilaterally-selected educational facility. The burden of establishing such appropriateness rests upon Parents (N.Y.S. Education Law §4404(1)(c))). Should Parents fail to establish the appropriateness of the unilaterally-selected facility, Parents’ request for relief must be denied. If the unilaterallyselected educational facility is determined to be appropriate, I must, because the awarding of any relief is possible only by an invocation of the equitable powers inherent in the proceeding, then review the equities in order to determine whether equitable considerations favor an award of any relief to the Parent. It is my determination that the burden of establishing that such equities favor an award of tuition reimbursement rests upon Parents.

DISCUSSION

It has been often stated by the State Review Officer (see Application of the Blank, Appeal No. 11-105), that 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). However, that is not exactly accurate. For, while school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (A.C. v. Bd. of Educ., 2008 WL 5505470, at 4 [2d Cir. Jan. 16, 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at 10 [S.D.N.Y. Feb. 9, 2007]). Under the IDEA as amended, 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 Parent’s 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 (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]; 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]).

It was further noted by the State Review Officer in the above-cited Decision that an appropriate educational program begins with an IEP that accurately reflects the results of evaluations 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 (34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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).17 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. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see P. v. Newington Bd. of Educ., 2008 WL 4509089, at *7 [2d Cir. Oct. 9, 2008]; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132). A school district may be required 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 (Burlington, 471 U.S. at 370-71; see also20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). 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 (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" (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" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). While such benchmarks, garnered from different sources and different courts dealing with various factual presentments, appear to establish varying standards for the basis of determining whether a particular special educational program meets the obligation imposed upon districts to provide a free, appropriate public education, I shall employ, in my review and determination of the issues raised in Parents’ Due Process Complaint, the evaluation of whether the program offered to Student by District was reasonably calculated to provide Student with some meaningful educational benefit.

When District’s Committee convened on April 12, 2011, the members employed by District, as previously noted, were Special Education Teacher , a School Psychologist, a School Social Worker and a Parent Member. All other participants – who are equally members of the Committee – were either Parent or representatives or staff of the . Parents have raised objection to the propriety of the constitution of the Committee, as the Special Education Teacher on the Committee was not one who might implement the recommended program. Both Federal and New York State Regulations require that a Committee have “ not less than one special education teacher of the student” – and clearly Special Education Teacher was not Student’s teacher. Further statements contained in the Appendix to the Federal Regulations (34 C.F.R. 300) are to the effect that, if not the student’s teacher, then one who might be capable of implementing the recommended program should serve as the student’s teacher. However, it appears that, within the New York City Department of Education, such is not followed. Rather, each Committee on Special Education has a Special Education Teacher or a General Education Teacher Assigned, whose roles are to participate in Committee meetings in planning educational programs. Actual teachers of the children are not involved in the proceeding. Were the requirement of having the actual teacher of the child present at Committee meetings enforced in Due Process proceedings, most- if not all – Committee determinations would have to be annulled on that basis alone. I do not find, however, that this Committee’s failure to have a teacher present who might be able to implement the decision of the Committee fatal to the recommendation of the Committee. Indeed, a Teacher Assigned might well be better versed in the nature of the Committee functions and more aware of the possible services and placements available than a teacher qualified to teach the proposed class but not otherwise aware. Also, I note that Student’s actual special education teacher, Ms. Barnett, was at the meeting for its entire duration and actively participated in both the description of Student’s deficits and current levels of performance. It is my finding that composition comports with the requirements set out in 8 NYCRR 200.3(a)(1)). While the above-cited Regulations require that the Committee have “no less than one special education teacher of the student”, I find Ms. Barnett’s participation sufficient to satisfy the requirement of the Regulations. I further note the opinion expressed by the State Review Officer in Application of the Deleted Deleted, Appeal No. 11-040, wherein, in a situation identical to that presented in this proceeding, it was determined that even the attendance by a special education teacher assigned – that is, a special education teacher who was, at that time, neither teaching or prepared to teach in a student’s recommended placement, but was assigned on a full-time basis to the Committee – was found to present no procedural impediment to the appropriate constitution of the Committee.

Committee Member Fuchs testified on behalf of the District and provided a description of the operation of the Committee. Witness Fuchs was vague as to her recall of the documentation before the Committee. While expressing her belief that an Observation Report was provided, she was unable to identify or locate such document. Also, although Witness testified that there were Reports from Education Center regarding Student’s functioning at that school, none were specifically described or identified. Certainly the Annual Report from , relating to Student’s functioning during the 2010-2011 school year (Exhibit F) was not before the Committee, as it is dated May 24, 2011 – weeks after the Committee meeting of April 12, 2011. Witness Fuchs stated, however, that the Committee members received much information from Student’s Special Education Classroom Teacher regarding Student’s functioning levels, weaknesses and areas of deficit, behavior concerns and the manner in which they were met. Other input was received from Parent and both the . Thus, even without documentation, it is my finding that the Committee had sufficient information regarding Student, her academic functioning levels, her social and emotional needs and her behavior concerns to prepare an appropriate educational program. Based upon such information, the Committee proceeded to prepare Student’s Individualized Education Program. The Committee, according to the testimony of Witness Fuchs, established Goals and Objectives in all needed areas. Goals were written for Adaptive Physical Education and for Academics (T.R. 103). Speech Goals had been written by the therapist at Reach for the Stars and were reviewed at the meeting (T.R. 105), including Goals for oral motor and feeding (T.R. 104). Physical Therapy Goals were written based on information provided by Parent and staff at (T.R.104). Measurement of the Goals placed in the I.E.P. was included (T.R.107-108). The I.E.P. provided Student with a Behavior Management Paraprofessional to assist Student in staying on task and defusing interfering behaviors. It also provided Goals for such Paraprofessional. Additionally, a Behavior Modification Plan was prepared for Student as part of the I.E.P. Such was based upon the information provided by Parent and the staff at .

Witness Fuchs confirmed that the Committee recommended Student’s placement in a Special Class with a staffing ratio of (Exhibit 1). Ms. , who had considerable familiarity with as one of the private school s for which she was responsible, described the program that Student was receiving at , noting that Student was in a class of five students, all on the , where each student had a “teacher” assigned, plus a Lead Teacher in the class, making the ratio at all times as plus one. The opinion was expressed by Witness that such placement was far too restrictive for Student. It was Ms opinion that Student’s needs could successfully be met in the recommended setting. I concur. While Parents’ correspondence to the Committee after receiving a Final Notice of Recommendation highlighted what Parent saw as the that deficits Student displayed, (Exhibits U and V), and testified that “It’s a very difficult thing for her to achieve progress in any area” (T.R.425), a reading of the Reports describing Student’s performance at (Exhibits E, H, I J,P and R) provides a far more positive picture of Student’s accomplishments and abilities. While Reach for the Stars Learning Center’s program provides each student with one-on-one adult supervision and employs Applied Behavioral Analysis (ABA) methodology exclusively, there is nothing that necessarily indicates that such is the only format in which Student might learn. The fact that Student receives one-on-one instruction for the entire school day at does not necessarily means that she requires it. The fact is that such manner of instruction is the only one to which Student has been exposed since beginning at in 2008. I find that it is but speculation to assume that Student can only be successful if provided with such one-to-one instruction.

Further, the provisions of the Individuals with Disabilities Education Act (IDEA) established a Continuum of placements wherein students with disabilities might receive their public education. Such placements run from placement in a regular classes, to special classes, to special schools, home instruction, and instruction in hospitals and institutions (34 CFR §300.115. Regulations issued by the Commissioner of the New York State Department of Education followed and mirrored the provisions of the IDEA, by enacting a similar Continuum, with provisions for regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions (8 NYCRR 200.6). Provisions for Special Classes (8 NYCRR.200.6(h) provide for classes with staffing ratios of or more; and or more. Clearly Student was not a student who required primarily habilitation (8 NYCRR 200.6(h)(4)(iii)) or the more restrictive setting of hospital or institution instruction. The decision by the Committee to place Student in a class setting permitted Student to receive her educational program in the smallest classroom setting permitted on the Continuum, while providing her with the opportunity for maximum individualized instruction. The addition of a Behavior Management Paraprofessional increased the opportunity for Student to benefit from redirection and the opportunity to minimize her interfering behaviors.

District has the obligation to afford to Student a free, appropriate public education. Nowhere on the Continuum is there the obligation of a district to provide a student with a program that affords to a student a teacher assigned specifically to that student, charged with providing such student with individual one-to-one instruction. While a parent might elect to place a child in a school such as , where such intense staffing is provided, as noted above: “The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving Parent" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989].

It is my finding and conclusion that the program offered to Student for the 20112012 school year was reasonably calculated to provide Student with some meaningful educational benefit. Even were I to conclude that Student’s program as provided to her by , with its extremely high staffing ratio and the provision of numerous therapies, was vastly superior to that which Student might have received in her 6:1+1 placement, such would simply be irrelevant to my Decision here, for a comparison of programs is inappropriate. It is sufficient to find, as I do here, that District’s proffered program was reasonably calculated to provide Student with some meaningful educational benefit.

Parents have also challenged the appropriateness of the placement offered to Student by District for the 2011-2012 school year at (Exhibit A). However, Parents rejected District’s proffered placement and, on July 1, 2011, entered into a Contract for Student’s placement at for the 2011-2012 school year (Exhibit AA). Student received her program at for the entire 2011-2012 school year. As was stated by the State Review Officer in Application of a Student with a Disability, Appeal No 11.098:

“I note that the parent's claims with respect to the assigned school are in part speculative insofar as the parents did not accept the recommendations of the CSE or the programs offered by the district and, therefore, the district was not required to prove that it could implement the May 2010 IEP. Furthermore, I note that the hearing record in its entirety does not support the conclusion that had the student attended the assigned school, the district would have deviated from substantial or significant provisions of the student's IEP in a material way and thereby precluded the student from the opportunity to receive educational benefits (Rowley, 458 U.S. at 206-07; A.P. v.

Woodstock Bd. of Educ., 2010 WL 1049297 [2d Cir. March 23, 2010];

Cerra, 427 F.3d at 192 [2d Cir. 2005]; see Van Duyn v. Baker Sch.

Dist. 5J, 502 F.3d 811 [9th Cir. 2007]; Houston Independent School District v. Bobby R., 200 F.3d 341 at 349 [5th Cir. 2000]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007]). The

IDEA and State regulations provide parents with the opportunity to offer input in the development of a student's IEP, but they do not permit parents to direct through veto a district's efforts to implement each student's IEP (see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420, cert. denied, 130 S. Ct. 3277 [2010]). A delay in implementing an otherwise appropriate IEP may form a basis for finding a denial of a FAPE only where the student is actually being educated under the plan, or would be, but for the delay in implementation (see E.H., 2008 WL 3930028, at *11 [N.D.N.Y. Aug. 21, 2008] aff'd 2009 WL 3326627 [2d Cir. Oct. 16, 2009]). The sufficiency of the district's offered program is to be determined on the basis of the IEP itself (see R.E. v. New York City Dept. of Educ., 2011 WL 924895, at *10 [S.D.N.Y. Mar. 15,

2011]). If it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a FAPE due to the failure to implement it (id.; see also Grim, 346 F.3d at 381-82 [holding that the district was not liable for a denial of a FAPE where the challenged IEP was determined appropriate, but the parents chose not to avail themselves of the public school program]). Additionally, as discussed below, the parent's concerns are not adequately supported by the evidence in the hearing record.”

For the same reason as enunciated above, District, in this proceeding, is not required to establish that it could have appropriately implemented the I.E.P. of April 12, 2011.

Having found District’s Individualized Education Program prepared for Student for the 2011-2012 school year appropriate, Parents’ entitlement to an Order directing the payment of Student’s tuition for the 2011-2012 school year to must be denied. Further, having found such I.E.P. sufficient constitutes a determination that Student was offered a free, appropriate public education for the 2011-2012 school year, rendering it unnecessary to review the appropriateness of Parent’s unilateral placement of Student at or whether equitable considerations favored an award of such requested direct payment to .

ORDER

Based upon the above review, it is HEREBY ORDERED that Parents’ Due Process Complaint be, and the same hereby is, DISMISSED.

Dated: January 2, 2013

________________________________

JAMES P. WALSH, ESQ.

Impartial Hearing Officer

JPW: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 RECORD ON JUNE 15, 2012

PARENT

A Parents’ Impartial Hearing Request, 3/27/12, 3 pp. B Due Process Response to Complaint by Department of Education, 4/2/12, 2 pp. C Findings of Fact and Decision by Impartial Hearing Officer B. White,

5/4/12, 17 pp.

DEPARTMENT OF EDUCATION

1 Student’s I.E.P, as Prepared by District’s C.S.E., 4/12/11, 18 pp. 2 Not Offered 3 Final Notice of Recommendation, 6/4/11, 1 p. 4 C.S.E. Contact Sheet, 3/8/11 and 4/12/11, 1 p. 5 C.S.E. Notice of Deferred Placement, 4/12/11, 1 p.

DOCUMENTATION ENTERED INTO RECORD ON OCTOBER 15, 2012

PARENT

D I.E.P. Prepared by for Student for the

2011-2012 school year, 17 pp. E Progress Report by

12/5/11, 3 pp. F Annual Speech/Language Evaluation by Parents , 5/24/11, 7 pp. G I.E.P. Goals for June and July, 2011 at

Learning Center, as Written by SLP and updated by , SLP, 8 pp. H Speech and Language Progress Report by , SLP,

Learning Center, 12/16/11, 2 pp. I Speech and Language Progress Report by ./ , SLP,

, 4/1/12, 1 p. J Speech and Language Progress Report by , SLP,

, 5/2012 –(Incomplete), 3 pp. K Behavior Intervention Plan for ,

7/2011, 2 pp. L Token Economy System Protocol for 2011-2011, 1 p. M [Student]’s Sensory Diet, 1 p. N Attendance Record for Student at for the 2011-2012 School Year, 8/15/12, 1 p. O Student’s Individual Schedule for the 2011-2012 School Year at

, 1 p.

DOCUMENTATION ENTERED INTO RECORD ON NOVEMBER 27, 2012

PARENT

P Occupational Therapy Evaluation, 6/24/11 by OTR/L

, OTR/L, 8 pp. Q Occupational Therapy IEP Goals for the 2011-2012 School Year by , OTR/L and , OTR/L, 3 pp. R Occupational Therapy Progress Report by OTR/L and .

, OTR/L, 12/15/11, 7 pp. S Attendance Record for Student at for the 2011-2012 School Year, 10/12/12, 1 p. T Letter from Parent to C.S.E. Re: Deferred Placement, 5/23/11, 2 pp. U Letter from Parent to C.S.E., 6/16/11, 4 pp. V Letter from Parent to C.S.E., 6/28/12, 2 pp. W Affidavit from Reach for the General Co-Director

Re: Costs and Payments for 2011-2012 School Year, 10/12/12, 1 p. X Copy of Check from , 10/3/12, 1 p. Y Copy of Loan Agreement Between , 9/28/12, 1 p. Z Parents’ U.S. Individual Tax Return (Form 1040) for 2011, 3 pp. AA Contract Between Parents and , 7/1/11, 4 pp.