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: March 16, 2012

April 27, 2012

Actual Record Closed Date: March 1, 2013

Hearing Officer: William J. Wall, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 16, 2012

Attorney — Student

Parents

DR., CSE District Representative — DOE

Assistant Principal (Via telephone) — DOE

School Psychologist (Via telephone) — DOE

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

Attorney — Student

Parents

Curriculum Supervisor (Via Telephone) — Student

DR., District Representative — DOE

PRELIMINARY MATTERS

The hearings for this matter was held on March 16, 2012 and April 27, 2012. I wish to thank the parties for their patience in awaiting this decision. Serious health problems prevented me from publishing this decision earlier.

THE DISTRICT’S POSITION

The District contends that it provided a Free Appropriate Public Education (FAPE) for the student because it conducted a Committees On Special Education (CSE) meeting on June 8, 2010 that resulted in a substantive and procedurally correct Individualized Education Program (IEP). Thereafter, a Final Notice of Recommendation was issued on June 14, 2012 with an appropriate placement .

There was testimony from the Department of Education representatives about the appropriateness of the program ( in a special school) and the placement. Therefore, the District objects to tuition reimbursement for Program.

THE PARENT’S POSITION

The parent contends that the Department of Education failed to provide the student with a FAPE because it failed to develop a IEP that was substantively and procedurally correct. Moreover, the parent contends that the placement offered to the student was defective in that it did not provide for an appropriate peer grouping and also failed to offer the intensive support that this child needed to make academic progress. The parent also contends that the placement ultimately offered by the District after the matter was referred to Central Based Support Team (CBST) was inappropriate for her child. Therefore they unilaterally placed the student in and seek tuition reimbursement for both the tuition of $50,000 and the cost of related services of $65,000.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

is a student classified . On June 8, 2010, an IEP meeting was held. The first person to testify on behalf of the District was an Assistant Principal at the school that was the recommended placement. IT is A district school . She articulated the programs and instructions methods employed at the school. It was an extensive list and clearly aimed at students with disabilities. (Tr, pp.8,9). She testified that there programs available and that there was space available for an additional student in the summer and fall of 2010. She testified as follows about the structure of the class and the manner in which the curriculum is adapted for the students and presented.

Well, ungraded in terms of, 1 no standardized tests would be given, but each 2 kid is, you know, has an IEP so they have an 3 individualized program that’s based on their 4 functioning and ability levels. So the teacher 5 would be, you know, using, you know, the 6 curriculum to meet the child’s needs based on 7 their functioning level. So they would be 8 getting skills and strategies that would be 9 conducive to them in making sure that they’re,

10 you know, able to fully participate in the 11 academic program. All our instruction is 12 differentiated. They’re within a class of six

13 students, there might be two students in one

14 group and one with another group and, you know,

15 three in another group. It would all depend on

16 their actual level and ability. (Tr. p.13) After the discussion of the school, she turned her attention to the IEP and testified extensively about the manner in which a new student would be evaluated and then educated based on his functional abilities.

She commented on the teacher’s professional credentials as weel as the availability of related services within the school. The school had its ( and equipment. In addition she gave comprehensive testimony about the type of instruction and the various methodologies used with children on .

Her direct testimony was credible and complete with respect to the nature of the program at

Upon cross examination, The AP testified that she never observed the student and did not review any evaluations or testing until one week before the first day of this hearing. She further testified that she did not know anything the school that the student had been attending. She testified that there would be no real interaction with normally developing peers other than passing them in hallways. She also testified that the student would participate at lunch with all of the other students in the school, She testified that would be 58 students. She did testify that she was not familiar only that she was aware that among the six sites of the school some other students had that disease on their IEPs. She did testify that assignment to a particular class would be based on the student’s classification. Again, here testimony was credible.

However, there was no testimony about any kind of a transition for a clearly sensitive child who has significant difficulties with transitions and large schools. Moreover in her candor, she testified that she had only read various evaluations of the student in preparation for this hearing and not at the time of Final Notice of Recommendation (FNR) was sent to the school.

At this meeting the team recommended a specialized class in a specialized school with a ratio of . While it has been acceptable for the required special education teacher to be part of the CSE team and not a special education teacher that was actually teaching it is still a requirement that there should be a person who is or will be responsible for implementing the IEP (34 C.F.R. Part 300, Appendix A, Notice of Interpretation Section IV, Question 26.) The IEP team failed to indicate that any member of the team, present at the meeting, was able to implement the IEP as written. There were participants at the meeting who knew the student and taught him . Additionally, the DOE failed to establish a transition plan from the private school the child was currently attending to the recommended placement of a program.

The testimony of the school psychologist from the CSE was relied on for the CSE meeting that developed the IEP. Her duties focused on the tasks related to the CSE. She did observations, evaluations and participated in many CSE meetings during the course of here employment. She testified that on certain days she did three or four CSE meetings in a day.

With respect to this student she testified that it was an annual review. She then testified to those in attendance. I should be noted that the Special education teacher was also the District representative who chaired the meeting. It is safe to assume that she was not the teacher who was going to implement any program developed for the student. She then identified the people present. It was clear from the testimony that the only people at the meeting who knew the student were representative and the parents. No one from the district knew the child. She testified that the one document they relied on was a teacher’s report .(Ex. 5) There is no recommendation in that report for a transfer from to a District school. Ex. 1, p.17 states the current Non-Public School (NPS) was rejected by the parent as not appropriate for ’s needs. The confirmed that is what was written on the IEP but could not confirm that the parent actually stated that he was dissatisfied with . The parent later testified that the statement was not correct.

MS. : Okay. And on the IEP, it states "current - - site was rejected, is not appropriate for 's needs." Did you ever tell the team that was not appropriate for ?

MS. : No. (Tr. p.128)

Thereafter the District rested its case. It did not raise any complaints against the parents that would indicate that the parents failed to cooperate with the testing and evaluations of the student or any failure to participate in the IEP.

The Parents called the curriculum supervisor for their first witness. She held that position during the 2010-2011 academic year, the year in dispute in this hearing. She had appropriate credentials and experience to , its curriculum, faculty and students. She stated that the school’s population was comprised of students with disabilities. There were 20 students enroll in the school in 2010-2011. The school is coed but not graded and the ages range from 5 through 21. Placement of the students is generally based on their functioning along with their age. She was familiar with the student and observed him on a regular basis. She further testified that she have regular meetings the teachers, therapist and basically any staff that works with him (tr.p. 95). She described and was very familiar with the symptoms (tr. pp,95.96).

She described ’s at the beginning of the year as . He on his desk. He if asked to do a task. Those were his weaknesses; his strength included a friendly personality, fairly quiet with strong receptive language skills. A token system was used beginning at a very low level to have . His classroom teacher was a certified special education teacher. He had a and would if left to his own devices. In total, there are four adults in his class of 6 students. In the opinion of the Curriculum specialist this allowed him to receive the 1 to 1 instruction he needed to make progress. There were 5 or 6 students in his class depending on the time of day. She further testified that he really needed individual attention, including prompting, .

Going through the class schedule, (Ex. G) it is clear that was on q pre kindergarten level in reading and math. During the school year he made progress in in math’ he could sort he knew less from more, Progress was measured by classroom observation (Tr. pp. 103, 104). With respect to language he was working on sign language and did make progress learning some signs. The curriculum coordinator went through the daily schedule and indicated that was making progress in all areas, although the progress was slower in some areas than others. She emphasized that make huge gains in behavior. By the end of the year he was able follow through on a task, follow directions from the teacher and the aggression was much less. (tr. p. 108)

The witness also testified that he received his related services at the school. During lunch there were teachers present often including his own teacher. This was important because he did have significant feeding issues. The witness also emphasized that not only was a small class size essential to , the small school was also critical. It eased transitions for him.

The witness also testified that 10% of the schedule was given over to religious activates.

In conclusion here testimony was very credible and she affirmed that made definite academic and social progress during the year.

Cross examination brought out that all progress was made by teach observation as well as the observation of the curriculum coordinator and other staff members.

The last witness for the parent was the student’s mother. Her description of ’s need were very similar to those functions and behaviors said by various witnesses earlier in the hearing. Upon receiving the FNR, the parent visited the recommended school. She felt strongly that it was much too large for , the school population for him to handle and she did not think he would be safe there or make much progress (tr. p.130). She did testify if the Department of Education (DOE) had offered an appropriate placement she would have accepted it even if it were completely secular. She also testified the entire tuition was $ 115,600.00.She paid the entire tuition for the year although it was necessary to borrow a significant part of the tuition.

She concluded her testimony by correcting her statement about the aggressiveness of the student in 771. In addition to the she was about the perceived failure of the teacher and other adults in the room to supervise the students . She also felt that the teacher had too many children with not enough help to provide the necessary individual attention to and the other students.

The District representative made a closing statement but the parent’s counsel reserved her comments for her brief. Both parties did submit briefs.

I have described the salient features of the hearing so that there may be a factual basis for the application of the law and regulations and also a review of the evidence presented but not referenced during the hearing. I will deal with the evidence first. Beginning with the District’s evidence, the Due Process request was a preformed response identifying the members of the CSE committee, the recommended placement and the documents relied upon for the CSE decision. No teacher’s progress note were listed in the response although a progress report was introduced into evidence.( Ex.2 ) Moreover, the response stated that the CSE relied on a social history but none was entered into evidence, The response was flawed and it is not clear what the CSE relied on to make its determinations and recommendations.

Ex. 1, the IEP of June 8, 2010, contained a lot of information. There was no dispute about the classification. The recommendation for a 12 month program in District school is on the first page of the IEP but it was not accepted by the parent. Rather the child was independently placed in STEP. Page 2 of the IEP lists those in attendance either in person or by phone but at no time during the hearing was it represented that any of the participants could be considered as a person capable of implementing the IEP. The STEP personnel would not be eligible to do so and the all other participants were members of the District CSE team and would not be assigned to implement an individual student’s IEP. Whether this defect reaches to a denial of FAPE by itself is not clear from the regulations. What is clear that Individuals with Disabilities Education Act (IDEA) has the expectation that at least one participant on the CSE committee be able to implement the IEP. There was no such evidence received during the hearing. His Academic Performance is judged only be teacher estimates. There were no objective tests given by the DOE. The IEP notes he does require highly intensive supervision (Ex, 1,p.4) His health needs are noted, including . No one form the DOE provided a detailed description of the disease or offered any method of managing the disease while he was in school. He was also to receive a health para and . The annual academic goals and interim objectives seem to be beyond the reach of the student given the description of his mental state and the fact that the DOE is insisting the child undergo a very difficult transition from a small nurturing environment to a very large institution that has questionable ability to service his needs despite the testimony of the assistant principal who clearly articulated what programs were available did not go into any specifics of how they were implemented on a day to day basis. The other goals and objectives seemed reasonable if he were to remain at . Without a transition plan it is impossible to estimate his ability to meet those goals.

Finally there is a ). However there is no Function Behavior Assessment which is an absolute requirement to have any validity. The therefore must be rejected. Since this child has serious behavior issues that definitely interfere with his learning, I must conclude that this failure does rise to a denial of FAPE to the student, especially when couple with the other irregularities in the District’s proof that it did offer a FAPE to the student.

Exhibit 3, a progress report from suggested an increase in speech therapy due to the extensive problems the student had with performing . The school basically agreed with the speech report provided as the report was written around the time the IEP was developed for the 2010-2011 and confirmed the extreme difficulties the student was enduring with communication. Ex.4 is a recommendation from an No one has ever questioned the need for such a para. The most important exhibit is Ex. 5, progress for the 2010-2011 year. It is this report that the CSE used as the cornerstone of its decision to recommend a public school placement rather that a continuation for . The first paragraphs of that report indicate a student who and needs extensive help to make . There is no mention of significant progress on the first page. The second page articulates several more of ’s difficulties the last paragraph on the page provides some hope. “ is quite and and on task is very difficult for him. With redirection, prompting and positive reinforcement he is able to complete his work and is progressing nicely this year”. The last page of the report details “areas of concern”. These areas include; not toilet trained, feeding issues including attempts to eat inedible objects, unaware of his general environment. He and . This is not a report that gives me any confidence that he is ready to and enter a large public school. The last exhibit is the FNR recommending which was rejected by the parent.

The parent’s exhibits include several exhibits dealing with the contract and related documents (Ex. E, H, I, J.) The note worthy exhibits are F, the attendance record which shows he only missed two days; Class schedule which was reviewed extensively by the Curriculum coordinator; the goals and objective for the STEP school which are more concise and much more realistic than those of the CSE. The final significant exhibit is a teachers report, dated March 21, 2011, (Ex. N) it states that he Sign Language, he is learning . He is beginning to behave appropriately in social situations. It is noted that he cannot yet hold a pencil correctly nor is he toilet trained but he can dress and undress himself with minimal prompting. His have improved. The difficulty with this report that it is an exhibit presented by the parent. The District testified that they had seen the report but apparently it was not relied on in developing the IEP. This report presents a more positive picture of the student but in no way does it lead me to conclude that this child could be save in 771 let alone make meaningful educational progress.

The IEP was without a Functional Behavior Assessment (FBA) and had no transition plan. There was no one at the meeting who knew the child except those from and the parent. None of them believed that could function in a large public school even with small class sizes. The assistant principal testified credibly about the programs but never went into detail as to how they were implemented. I am not suggesting that her testimony was either wrong or incomplete. It did not address the day to day operations of the school but rather discussed the many programs available. No one inquired of her as to those details. Based only on a review of the IEP she felt her school could meet the needs of the student whom she never met nor had any in depth knowledge about the extent of .

It is time to turn to the governing law and regulations.

This case is a Burlington/Carter case. Sch. Comm of the Town of Burlington v. Dep’t of Educ. 471 U.S.359, 105 S. Ct. 1996, 85 L. Ed.2d 385 (1985); Florence County Sch. Dist IV v. Carter, 510 U.S. 7, 114 S. Ct. 361126 L. Ed. 2d. 284 (1993). A board of education bears the burden of demonstrating the appropriateness of the program recommended by its CSE (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 927; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176 [1982]). The recommended program must also be provided in the let restrictive environment (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]). Application of a Child with a Disability. 02-055.

THE 2006/2007 SCHOOL YEAR

The beginning of a FAPE is the IEP that is procedurally and substantively correct. Certain flaws or failures on the part of the District will not invalidate the IEP provided those defects do not interfere with the substantive rights of the parents or the education of the student. The pertinent regulation is 8 NYCRR 200.5. (j)(ii); (ii) Procedural issues. In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title. However, I do find that the lack of a transition and the failure to develop a meaningful BIP does deprive the student of FAPE because without a BIP to control his emotional outbursts there was no hope for him to make meaningful educational progress. To reach a proper IEP, a CSE must be duly constituted and then properly analyze the materials that have been developed and make recommendations that result in a program that is “likely to produce progress, not regression and affords the student with an opportunity greater that mere ‘trivial advancement’ (Cerra, 427F.3d at 195, quoting Walczak, 142 F 3d at130…(Appeal No. 09-067). In this case the CSE developed an IEP on August 6, 2009. (Ex. 3). The CSE review team was comprised of the necessary personnel. Regulations require that a broad spectrum of evaluation instruments be considered in establishing a student’s educational status in preparation for the CSE Review. 8 NYCRR 200.4. Procedures for referral, evaluation, individualized education program (IEP) development, placement and review is the section that specifies the procedures to be followed. The specific regulation dealing with reevaluations is 8 NYCRR 200.4 states

(4) A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representatives of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. The reevaluation shall be conducted by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of the student's disability. In accordance with paragraph (5) of this subdivision, the reevaluation shall be sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education. The results of any reevaluations must be addressed by the committee on special education in a meeting to review and, as appropriate, revise the student's IEP. To the extent possible, the school district shall encourage the consolidation of reevaluation meetings for the student and other committee on special education meetings for the student. In this case the CSE did not undertake any evaluations of its own. There was no observation introduced, not even a social history, and no psychoeducation evaluations. Its appears the CSE relied only on the information provided by school and nothing else. That does not meet the requirements of 8 NYCRR 200. Turning to prong two of the Burling Carter test, several courts have addressed the standards that must be met if the school is found to be appropriate for the student.

The burden to establish as an appropriate placement rests with the parent. The standard by which a private placement is determined to be appropriate is found in Frank

G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356 (2nd Cir. 2006). In an extensive discussion of the requirements necessary to establish the appropriateness of the private placement the court stated.

Parents seeking reimbursement for a private placement bear the burden of demonstrating that the private placement is appropriate, even if the proposal in the IEP is inappropriate. M.S., 231 F.3d at 104. Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education. See 20 U.S.C.§1401(9). An appropriate private placement need not meet state education standards or requirements. Carter, 510 U.S. at 14, 114 S.Ct. 361. For example, a private placement need not provide certified special education teachers or an IEP for the disabled student. Id. In addition, parents "may not be subject to the same mainstreaming requirements as a school board." M.S.,231 F.3d at 105 (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect")).

Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement — public or private — is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir. 1998). While the IDEA does not require states to "maximize the potential of handicapped children," Rowley, 458 U.S. at 213, 102 S.Ct. 3034, it must provide such children with "meaningful access" to education, Walczak,142 F.3d at 133. With these goals in mind, we have held that for an IEP to be reasonably calculated to enable a child to receive an educational benefit, it must be "likely to produce progress, not regression." Id. At 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v. Michael F.,118 F.3d 245, 248 (5th Cir. 1997)). Courts must, therefore, "examine the record for any ‘objective evidence' indicating whether the child was likely to make progress or regress under the proposed plan." Id. (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997).

Thus, "in the regular classrooms of a public school system, the achievement of passing marks and regular advancement from grade to grade will be one important factor in determining educational benefit." Rowley, 458 U.S. at 207 n. 28, 102 S.Ct. 3034; see also Sherman v. Mamaroneck Union Free Sch. Dist., 340 F.3d 87, 93 (2d Cir. 2003) (noting that "[p]assing grades are . . . often indicative of educational benefit"). Although it is more difficult to assess the significance of grades and regular advancement outside the context of regular public classrooms, these factors can still be helpful in determining the appropriateness of an alternative educational placement. See Walczak, 142 F.3d at 130.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207, 102 S.Ct. 3034. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. See Page 365

Knable ex rel. Knable v. Bexley City Sch. Dist., 238 F.3d 755 (6th Cir. 2001) (holding that a unilateral private placement was appropriate where, inter alia, class sizes were small, the student made significant educational progress, and his grades and behavior improved significantly). 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. See M.S., 231 F.3d at 105

("The test for parents' private placement is not perfection.") (internal quotation omitted)They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction." Rowley, 458 U.S. at 188-89, 102 S.Ct. 3034 (internal quotation marks omitted). Frank G. v. Board of Educ. Of Hyde Park, 459 F. 3d 356,364,365 (2nd Cir. 2006)

With this relatively recent articulation of the law we can now turn to the facts of the placement of the student to determine if the placement was appropriate. The School is non-public school for handicapped children.

The testimony of the School representative and the parent with respect to the type of student that attends is clear. In some classes there are five or six students. The student certainly has much to make up but it is very clear that is good fit both academically and socially. The mother testified that she had observed that he is making progress to the extent that he has become more comfortable and more involved in the lessons from the time he started at the school. While there is no separate he participates in a school wide program that provides individual rewards for accomplishments and other motivational tools that are gears to the individual students. I find is an appropriate placement where can be provided "educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction (Rowley).

Prong 3 requires that the parents participate in IEP meetings and make the student available for evaluations during the course of his instruction. The parent attended every IEP in evidence. It would appear they cooperated fully with the evaluation and placement process. (There was very little evaluation but the parent did cooperate and had school provide documents to the CSE. I note the admissions process for the school began in the spring before the IEP meeting was called or convened. This was certainly prior to the IEP which made the final recommendations for the coming school year. The District has not argued that this is a clear indication that they were determined to send the student to the no matter what the outcome of the June IEP. The parent however, testified that they were very aware of the limited placement opportunities for a student with difficulties in the New York metropolitan area and thus felt it only prudent to begin the process early in order to find and protect a placement for the student if it were to become necessary. They were still open to the District’s placement if they found it to be appropriate for their son. I take judicial notice of the limited amount of seats available for students with disabilities in this area and almost every parent confronted with the possible need for a non-public school begins the process in January or sooner. The argument is without merit. The Parent has met the requirements of prong 3 with respect to the need to cooperate with the District.

ORDER

The parent shall be reimbursed for tuition and fees in the amount of $115, 600.00 less 10% for the religious participation of the student in the activities of the school. Thus the award of tuition and fees is in the amount of $104,040.00 upon presentation of proper documentation to the Department of Education. I would note that the parents have provided significant documentation in the evidence presented in this hearing and should not be required to duplicate those records. Dated: March 6, 2013

______________________

WILLIAM J. WALL, ESQ.

Impartial Hearing Officer

WW;mv

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.6/7/11 Impartial Hearing Request 1pg.

B.6/13/11 Due Process Response 4 pg.

C.and D. left blank

E.9/1/10 Contract and Addendum 2 pg.

F. 2010/2011 Attendance Record 1 pg.

G. 2010/2011 Class Schedule 1 pg.

H. 5/4/12 Affidavit of Payment 1 pg.

I. Various Proof of Payment 4 pg.

J. 9/1/10 Loan Application/Promissory Note 2 pg

K. 2010/2011 Goals and Objectives 6pg

L. Undated Classroom routines? Expected Behavior 1 pg

M. Undated Program Description 2 pg

N. 3/2/11 Teacher’s report 2 pg

District

1. 6/8/10 IEP 19 pg

2. 5/27/10 Progress Report from Service Provider 1 pg

3. 1/28/10 Doctor’s request for Health Para 1 pg

4. 2/23/10 Letter of Acceptance 1 pg

5. 6/4/10 Progress Report 3 pg

6. 6/14/10 Final Notice of Recommendation 1 pg