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: November 28, 2012

February 15, 2013

March 4, 2013

March 21, 2013

April 8, 2013

May 6, 2013

July 19, 2013

August 13, 2013

Actual Record Closed Date: October 11, 2013

Hearing Officer: Edgar De Leon, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date Attorney DOE 11/28/12 02/15/13 03/04/13 03/21/13 04/08/13 05/06/13 07/19/13 08/13/13

Dr. Psychologist DOE 03/04/13

(T) Unit Coordinator DOE 03/21/13

(T) DOE 08/13/13

Attorney PARENT 11/28/12

02/15/13

03/04/13

03/21/13

04/08/13

05/06/13

07/19/13

08/13/13

Mother PARENT 03/04/13

03/21/13

04/08/13

05/06/13

07/19/13

08/13/13

Father PARENT 03/04/13

03/21/13

04/08/13

05/06/13

07/19/13

(T) SEIT PARENT 03/21/13

(T) Co-Director - IBI Associates PARENT 04/08/13

(T) Speech Therapist PARENT 04/08/13 Dr. (T) Neuropsychologist PARENT 05/06/13

(T) Occupational Therapist PARENT 05/06/13

(T) Co-Director - IBI Associates PARENT 05/06/13

On October 11, 2012, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner of Education, concerning a dispute between the Parents of student attending a public school and the New York City - Department of Education (“DOE”) - Home District: 02, Service District: 88, regarding the student’s special education program.

BACKGROUND

This case was initiated as the result of a written Due Process Complaint (“DPC”) made by the student’s Parents’ attorney(s), the Law Offices of , LLP and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about October 10, 2012. (P-A) The DPC is carried under New York City (“NYC”) Case No. . (Id.) Therein, the Parents assert that the DOE has failed to offer the student a “free and appropriate public education” (“FAPE”) for the 2012-2013 school year. (Id.) The student is said to have other diagnosis. (Id.) Specifically, the Parents assert that the student’s Individualized Education Programs (“IEP”) dated April 26, 2012 and June 21, 2012 are procedurally and substantively flawed under law. (Id.) The Parents state that on May 24, 2012, they served legal “notice” indicating their disagreement with the Committee on Special Education (“CSE”) recommendations. (Id.) Additional “notice” was served upon the DOE on or about August 22, 2012. (Id.) The Parents acknowledge that they received a Final Notice of Recommendation (“FNR”) from the DOE and that they visited the recommended DOE school. (Id.) The Parents believe that the recommended DOE placement is inappropriate for the student. Accordingly, the Parents seek the following relief in this matter:

(a) continuation of the student’s pre-school program as per the student’s Committee on Pre-School Special Education (“CPSE”) IEP dated June 15, 2011; and

(b) reimbursement for the unilateral services provided to the student’s by the Parents consisting of (18) hours per week of Special Education Itinerant Teacher (“SEIT”) services and (7) hours per week of therapy provided for the 2012-2013 school year.

On November 28, 2012, the Parents through their attorney(s) requested an Order on Pendency and a hearing was held on the same. On that date, the pendency hearing was completed. The following Order on Pendency was issued on consent of the parties:

ORDERED on CONSENT and pursuant to the pendency provisions under the IDEA, the student shall immediately continue to receive the services provided under her Committee on Pre-School Special Education (“CPSE”) Individualized Education Program (“IEP”) dated June 15, 2011, minus the physical therapy service stated therein (T-5 & P-B) the costs of which are to be paid by the DOE upon the agency’s receipt of reasonably satisfactory proof of said services having been rendered; and it is further

ORDERED on CONSENT that a copy of the student’s CPSE IEP dated June 15, 2011 shall accompany this order for reference.

The impartial hearing was held on November 28, 2012 (“pendency”), February 15, 2013, March 4, 2013, March 21, 2013, April 8, 2013, May 6, 2013, July 19, 2013 and August 13, 2013. The parties opted to submit written closing statements that were originally due on September 11, 2013. Subsequently, two additional requests were made for the extension of time to submit written closing statements. The parties closing statements were then received on or about September 26, 2013. A list of the persons appearing at the hearing and the documents received in evidence is annexed hereto.

THE DOE’S CASE

The DOE argues that the student was classified with “multiple disabilities” at a “ which occurred during the “Spring of 2012.” (T-20-1) Based on the evaluative evidence submitted, the input of the student’s related service providers and her current “SEIT”, the DOE appropriately recommended that the student attend a special class in a special school with a staffing ratio of “12:1:4.” (T-21) Accordingly the DOE argues that it offered the student a FAPE in the IEP dated June 21, 2012. (T-21-2) The DOE also argues that the student’s parental unilateral placement is unduly restrictive and that the “equities” favor the DOE. (Id.) The DOE also argues that the Parents did not served adequate “notice” of their decision to unilaterally place the student. (T-22)

The DOE called (3) witnesses to testify on its behalf and submitted (10) documents in evidence. The sum, substance and relevant portions of the testimony and documentary evidence for and against the DOE’s case are incorporated in the decision below.

THE PARENT’S CASE

The Parents argue that the DOE failed to offer the student a FAPE for the 20122013 school year. (T-22-3) The student has a complicated medical and developmental history, including but not limited to having “ .” (T-23) The CSE met on April 26, 2012 to develop a “Turning Five IEP” for the student. (Id.) The Parents received a draft copy of that IEP and then sent a letter to the CSE dated May 24, 2012, wherein they expressed their concerns. (Id.) The CSE then reconvened on June 21, 2012 and the resulting IEP has numerous procedural and substantive flaws concerning the student’s “management goals” and “annual goals.” (T-23-4) The CSE also unilaterally reduced the frequency and duration of the student’s services and continued the student’s “physical therapy” over the Parents’ objections because her needs are “medical in nature.” (T-24) The CSE program recommendation was made without any documentation to support it. (Id.) What’s more, the recommended DOE school would not be able to offer the CSE recommended program to the student. (T-24-5)

The Parents further argue that the student required another year of her pre-school services as stated in the CPSE IEP dated June 15, 2011 in combination with an additional

(18) hours per week of services and (7) hours per week . (T-25) The student’s preschool program is addressing the student’s needs and enabling her to make progress. (Id.) The professionals who have evaluated the student and are working with her believe that the student requires this type of program. (T-25-6) The student has opportunities to interact with typical peers in the Parents’ program. (T-26) There are no equitable considerations which would bar an award on behalf of the Parents. (Id.) The Parents served “notice” of their unilateral placement on August 22, 2012. (T-28)

The Parents called (7) witnesses to testify on their behalf and submitted (20) documents in evidence. The sum, substance and relevant portions of the testimony and documentary evidence for and against the Parents’ case are incorporated in the decision below.

FINDINGS OF FACTS & DECISION

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 (2005)) A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13) The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528, 537)

The DOE may be required to reimburse Parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the Parents are appropriate and equitable considerations support the parent’s claim. (Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2nd Cir. 2005))

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2nd Cir. 2000)) A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. V. Rowley, 458 U.S. 176, 206-7 (1982)) 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. § 300.550(b), 8 NYCRR §200.6(a)(1))

The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (SRO No. 94-20)

Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds:

Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see 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" (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, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-

102; Application of the Bd. of Educ., Appeal No. 04-026). 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. (Application of a Child with a Disability, Appeal No. 04-

049).

As stated above, 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 DOE were inadequate or inappropriate, the services selected by the Parents were appropriate, and equitable considerations support the Parents' claim. (Carter and Burlington, supra)

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. (Burlington, 471 U.S. at 370-71, 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 at 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. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

I must first determine whether the DOE offered the student a FAPE for the 20122013 school year. Here, the Parents assert that the CSE met on April 26, 2012 to develop a “Turning Five IEP” for the student and then reconvened on June 21, 2012, of which the resulting IEP has numerous procedural and substantive flaws concerning the student’s “management goals” and “annual goals.” (T-23-4) Since it is well settled that an amended IEP supercedes a previous IEP (See SRO Nos.: 05-063, 05-021 & 06-027), I find that the June 21, 2012 IEP supersedes all previous IEPs and was the IEP in effect at the time the hearing requests were made.

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 special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education 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 school psychologist; (6) an individual who can interpret the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, 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 disability 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 special expertise 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 student’s CSE team on June 21, 2012 was composed of a related service provider/special education teacher, a general education teacher, the Parents, a school psychologist acting as the district representative, a social worker, a parent member, the student’s physical therapist, occupational therapist, speech pathologist, her “CPSE/SEIT” provider and another SEIT provider. (T-53, 63, 70, D-3 & P-C) Accordingly, I find that the student’s CSE team on June 21, 2013 was duly composed under law.

As noted above, 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. (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)

Here, the DOE school psychologist acting as the district representative testified that she did not personally evaluate the student and that the documents relied on at the student’s “April 26th” IEP meeting were all private reports submitted by the Parents. (T-85) She also conceded that when the student’s occupational therapy was reduced at the June 21, 2012 meeting, she did not have any evaluations that indicated the student’s occupational therapy services could be lowered by one hour per week. (T-95-6) The same was true for the reduction in the student’s speech therapy services. (T-96-7) The student’s speech therapist testified that the DOE’s recommendation of speech therapy five times a week for (30) minutes are insufficient because the student has very significant communication needs. (T-225 & 234) The student’s occupational therapist testified that the student needs for (60) minutes in a sensory gym and that the (30) minutes recommended by the DOE is too limited for the student to meet her goals. (T-314-5)

The student’s “ Progress Report” dated April 25, 2011 was received in evidence. (P-G) The report states that “More intervention time is needed per session to successfully and comprehensively meet all of the student’s fine motor, gross motor and sensory needs.” (Id.) The student’s “Speech and Language Evaluation and Progress Report” dated April 29, 2011 states: “It is strongly recommended that speech and language therapy is increased to five individual sessions of 45 minutes each week. These services are necessary to support [student’s name] speech and language growth.” (P-H)

Also received in evidence is the student’s “Neurological Clinical Summary” dated May 9, 2011. (P-I) The report makes the following findings:

[Student name] continues to demonstrate neurologically based developmental delays affecting her language skills, coordination skills and gait. There is overall evidence for language and cognitive delays. She should continue to receive an intensive therapeutic plan as she is making steady progress. She should have her speech and language therapy increased to five times weekly.

She is now able to tolerate 45 minutes, so I have suggested an increase in her therapy. She should also have physical therapy and occupational therapy continued three times weekly for 60 minutes each. She will need a SEIT full time at the school for safety reasons and also to help with social language deficits. She requires a SEIT for 15 hours weekly. I have not suggested a follow-up MRI or genetic studies at this time, but this may need to be reconsidered depending on her clinical progress over the course of the next year. (Id.)

The student’s “Educational Progress Report” dated April 7, 2011 was also received in evidence. (P-J) The report recommends that the student receive an increase of SEIT to 15 hours per week due to her time in school increasing from 8.25 hours to 15 hours. (Id.) SEIT support is said to be “…essential for [student’s name] continued progress in the school environment. (Id.) The student’s “Psychological Evaluation” is dated October 3rd and October 17, 2011. (P-F) In relevant part, the evaluation recommends:

[Student’s name] requires a small, highly structured, special education class within a supportive environment that facilitates her interpersonal engagement, participation and focus. Her pre-school program should specifically target speech and language development. [Student name] should remain in a pre-school classroom through the 2012-2013 school year in order to continue to develop the behavioral and pre-academic skills necessary for kindergarten.

[Student name] should be with a group of peers who are socially interested and do not have significant behavioral challenges.

[Student name] should continue to receive speech and language therapy, occupational therapy, and physical therapy services at the frequency recommended by her current providers. (Id.)

Even the DOE’s own “Related Service Student Update” dated March 19, 2012, recommends that the student “PT” services “3 x 60” minutes. (D-11) The occupational therapy report submitted by the DOE is dated December 12, 2011 and recommends that the student continue to receive occupational therapy services on an individual basis for (60) minute sessions in a sensory gym for (12) months. (D-14)

The DOE recommended that the student be placed in a special school, with a ratio, with related services of speech, occupational and physical therapy and a paraprofessional. (D-3) Despite the recommendations in the student’s evaluations and reports above, the DOE reduced the student’s related services to (30) minute sessions. (P-C) In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations. (See 34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]) Additionally, a CSE must consider independent educational evaluations obtained at public expense and private evaluations obtained at private expense, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student. (See 34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]) However, consideration does not require substantive discussion. (See T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 [2d Cir. 1993] citing G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; see Evans v. Dist. No. 17, 841 F.2d 824, 830 [8th Cir.1988]; K.E. v. Indep. Sch. Dist. No 15, 2010 WL2132072, at *19 [D. Minn. May 24, 2010]; James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist. No. 102, 642 F. Supp. 2d 804, 818 [N.D. Ill. 2009])

There is nothing in the record to support a reduction in the student’s services. While the DOE may argues that the law only requires it to “consider” the Parents’ evaluations and reports, the law also requires the agency to produce an IEP that accurately reflects the results of evaluations to identify the student's needs. (See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]) Here, the DOE school psychologist testified that all of the reports the agency relied upon were the private reports obtained by the Parents. (T-52 & 85) There is no evaluative support to controvert the Parents’ reports and to justify the reduction in the student’s services. Accordingly, I find the reduction of the student’s services a substantive failure to address the her needs and a denial of FAPE for the 2012-2013 school year I next turn to the question of whether the Parent’s choice of program is appropriate for the student’s 2012-2013 school year. Here the Parents need only demonstrate that their choice of program provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from instruction. (See Gagliardo, 489 F.3d at 112 and Frank G., 459 F.3d at 364-65)

The DOE concedes that the Parents have created a program that continues the student’s CPSE IEP, including the student’s recommended related services above, at home SEIT services, (18) hours of speech ABA services and a mainstream gym. (D-15) This exactly what the student’s evaluations and reports above recommend. (Supra) Indeed, the student’s Psychological Evaluation specifically states that the student “…should remain in a pre-school classroom through the 2012-2013 school year. (P-F) The DOE’s chief concern is that the Parents’ program is unnecessarily restrictive. (D-15)

While parents are not held as strictly to the standard of placement in the LRE as school districts are, the restrictiveness of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement. (See Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 and M.S. v. Bd. of Educ., 231 F.3d at 105) The requirement of instruction in the LRE must be balanced against the requirement that each student with a disability receive an appropriate education. (See Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989])

The record supports a finding that the Parents’ program is appropriate for the student. The student’s occupational therapist testified at length as to all of the therapies she uses to address the student’s gross and fine motor deficits and her daily living activities. (T-303-11) The student has progress to where she can feed and dress herself. (T-312-3) The student’s therapist developed the student’s and her work with the student has resulted in the student’s improvement in . (T-221, 227 & P-O) The student’s SEIT works with her at a mainstream gym where the student has a mix of interacting with children in gyms, doing sports, gymnastics, arts and crafts, dancing and social groups. (T-150) The student interacts with her friends at lunch. (Id.) The student receives her related services as recommended above, but other children are also present which the student interacts with for about (3) to (4) hours per week. (T-182 & 195) The student has progressed under the program, which also provides the Parents with training. (T-187-9 & 191) The student ” and her “attending” has improved and her . (T-367 & 373) The student’ pathologist assesses the student by taking data on the student’s goals. (T-223-4) She testified that the (T-224) The also improved and she now spontaneously labels and tacts. (Id.) It is clear that the Parents’ program is meeting the student’s needs and permitting her to benefit from instruction. (Gagliardo and Frank G., supra) While the student’s program does include a significant amount of instruction, she nevertheless does have the opportunity to interact with other students. Balancing the law’s requirement to place the student in the LRE against the requirement that she receive an appropriate education, I must find the Parents’ program is appropriate under law. (See Briggs v. Bd. of Educ., 882 F.2d 688, 692 [2d Cir. 1989])

There is nothing in the record that sustains a finding that the Parents have not cooperated with the CSE. They attended the CSE meeting, provided the CSE team with access to the student’s providers and their numerous reports and evaluations and visited the recommended DOE placement. (Supra & T-447) They also provided the agency with “notice” of their rejection of the recommended DOE program. (P-K) Therefore, I find that equitable considerations do not bar an award on behalf of the Parents.

NOW therefore, it is hereby

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall continue of the student’s pre-school program as per the student’s Committee on Pre-School Special Education (“CPSE”) IEP dated June 15, 2011 and reimburse the Parents for the cost of said program for the 2012-2013 school year; and it is further

ORDERED that upon reasonably satisfactory proof of services having been rendered, the DOE shall reimburse the Parents for the unilateral services they provided to the student consisting of (18) hours per week of Special Education Itinerant Teacher (“SEIT”) services and (7) hours per week of therapy provided by for the 2012-2013 school year; and it is further

ORDERED that the CSE shall reconvene and produce a new IEP for the student that considers all of her available and necessary evaluations and any related services that she should receive. Dated: November 14, 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 Due Process Response 10/24/12 DOE 04

02 Draft IEP 04/26/12 DOE 16

03 IEP 06/21/12 DOE 17

04 Events Log 02-06/2012 DOE 05

05 Letter from Parents 05/24/12 DOE 03

06 Classroom Observation 01/24/12 DOE 03

07 Parent Survey 01/2012 DOE 01

08 Evaluation 10/03-17/11 DOE 09

09 Pediatric Ophthalmology Report 03/22/12 DOE 02

10 Letter from Dr. 04/05/11 DOE 01

11 Related Service Update - 03/19/12 DOE 01

12 Related Service Progress Report 04/22/12 DOE 02

13 Social History 04/16/10 DOE 04

14 Report 12/12/11 DOE 05

A Impartial Hearing Request 10/10/12 PARENT 07

B CPSE IEP 06/15/11 PARENT 18

C N/A N/A PARENT N/A

D N/A N/A PARENT N/A

E Mock IEP undated PARENT 11

F Evaluation 10/03-17/11 PARENT 07

G Progress Report 04/25/11 PARENT 02

H Report 04/29/11 PARENT 03

I Summary 05/09/11 PARENT 01

J Educational Progress Report 04/07/11 PARENT 04

K Request for Transportation 04/22/12 PARENT 04

L Program Schedule undated PARENT 01

M Letter from Dr. 02/05/13 PARENT 01

N Progress Report 02/13/13 PARENT 06

O Progress Report 01/31/13 PARENT 03

P SEIT Progress Report 02/10/13 PARENT 02

Q Summary 02/20/13 PARENT 02

R Evaluation 10/08/12 PARENT 07

S Report 02/04/13 PARENT 05

T Probe Data Sheet N/A PARENT N/A

U Progress Report 02/11/13 PARENT 06

V Invoices 2012 PARENT 22