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

Dates of Hearing: April 17, 2013

May 14, 2013

June 13, 2013

July 16, 2013

Actual Record Closed Date: August 15, 2013

Hearing Officer: Judith Schneider, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 17, 2013

Meredith Garfunkel, Esq. Attorney — Parents

Mother — Parents

John Karl Alvin, Esq. Attorney — DOE

DOE

(via telephone)

DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 14, 2014

Meredith Garfunkel, Esq. Attorney — Parents

Mother — Parents

Parents

(via telephone)

John Karl Alvin, Esq. Attorney — DOE

Coordinator — DOE

(via telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 13, 2013

Meredith Garfunkel, Esq. Attorney — Parents

Teacher — Parents

(via telephone)

John Karl Alvin, Esq. Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED on JULY 16, 2013

Meredith Garfunkel, Esq. Attorney — Parents

John Karl Alvin, Esq. Attorney On April 7, 2013, May 14, 2013, June 13, 2013 and July 16, 2013, — DOE

I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the of XXX (“the student”).

The proceeding was initiated at the request of the parent by correspondence dated December 5, 2012. (Ex. 8) I was appointed Impartial Hearing Officer on December 7, 2012. I was available to conduct a hearing within 14 days. At a telephone conference with the parties after the resolution phase ended conducted on January 4, 2013, the hearing was scheduled for February 8, 2013 and March 20, 2013, the first mutually available dates for the parties, their witnesses and the hearing officer. (T., 3-5, Ex. I)

The initial compliance date in this matter was February 19, 2013. The parties moved to extend the compliance date on various occasions in light of anticipated testimony, the scheduling of witnesses and submission of evidence and closing argument. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. Written decisions concerning the compliance date extensions were provided to the parties. (T. 4-6, 168-169, 361, 463 , Ex. II)

The current compliance date is September 6, 2013. The record closed on August 15, 2013, upon my receipt of the final transcript.

Background1

At the commencement of the 2012-2013 school year (10 month program), the student was old and his classification was . (Ex.1) That classification is not in dispute. For the 2012-2013 school year, his grade year, the student was unilaterally re-enrolled by the parent at The a non-public school which is not approved by the New York State

The contents of this section are included herein as Findings of Fact. Department of Education as a school with which the district may contract for the provision of services. (Exs. 1, 8) The parent seeks DOE funding for that placement.

The CSE had convened on April 2, 2012, to develop a program for the 2012-2013 school year. It recommended a program for per day, (group service) per week in a classroom and per week, in the provider’s office and test accommodations (“the April 2012 IEP”) . (Ex. 1)

By letter dated August 17, 2012, the parent informed the CSE, among other things, that she had not yet received a placement recommendation, that she would visit any proposed placement when school opened, and that unless and until an appropriate placement was recommended, the student would be re-enrolled in and DOE funding sought. (Ex. D)

By letter dated August 15, 2012, the CSE recommended a placement at PSXXX (“the school”). (Ex. 3)

By letter dated September 11, 2012, the parent informed the CSE, among other things, that she had concluded the school was not appropriate and that the student would be kept at and DOE funding for that placement would be sought. (Ex. E) No response was received. (T. 330-331)

The instant impartial hearing request was filed by letter dated December 5, 2012. (Ex. 8)

Positions of the Parties

The parent asserts that the April 2012 IEP was procedurally and substantively defective and specifically claims improper CSE composition, failure to consider appropriate evaluative data, insufficient and inappropriate goals and objectives and that the IEP failed to appropriately reflect the information provided to the CSE The parent also asserts that the proposed placement was not appropriate because the school was too large for this student in view of his various needs, the classes in which he would be placed would be not appropriate and the student would not receive sufficient instruction. She claims that the DOE failed to provide a FAPE. The parent asserts that her placement at was appropriate and that there are no equitable considerations that would limit or bar DOE funding, which she seeks by way of prospective payment to in view of claimed financial inability to fund the placement and seek reimbursement. (T. 468-500. 556-559, Ex. 8)

The DOE asserts that the IEP was validly developed and based on the student’s needs, that its program was reasonably calculated to enable the student to make meaningful educational gains and that the proposed placement could implement the IEP. With regard to , the sole DOE claim is that it is too restrictive. Further, with regard to DOE funding issues, no objections based upon equitable considerations has been asserted. The DOE claims, however, that the parent has not established entitlement to prospective funding. (T. 10-14, 500-556)

Cases Presented

A. Lists of documents in evidence are appended.

B. Witnesses

1) DOE

The DOE presented the testimony of three witnesses: CSE ; an assistant principal at the recommended placement; and, Coordinator at the recommended placement.

was the school who participated in the CSE review at issue (T. 21, Ex. 1) Her testimony included the following:

The meeting lasted some 90 minutes. (T. 72) Minutes were taken during the review. (T. 23) A DOE teacher who also served as district representative; a parent member; an teacher; the student’s mother; and a friend of the mother’s also participated. (T. 33-35, Ex. 1) The review was a mandated three year (“triennial”) for which updated were required. (T. 20, 87) The team considered: 2009 and 2010 reports provided by the parent; a current prepared by a DOE contracted ; an observation prepared by the CSE teacher who participated in the review; Term 1 and 2 reports; information provided by the student’s teacher by telephone concerning areas of strength , including classroom functioning levels for grade levels, and appropriate goals; and, the parent’s input with regard to every performance section. (T. 25-26, 30, 33, 38-39, Exs. 4, 5, 6, 7) The student’s indicated , . (T. 83)

was the Assistant Principal at the recommended placement and supervised the for the 2012-2013 school year. (T. 145) His licensure does not include certifications. (T. 146) During Summer 2012, he spoke with the parent by phone and informed her that the school had a grade class and that she could arrange a visit. (T. 147, 155) He stated that he never informed her that the (T. 147-148) testified that the behaviors did not impede the ability of others in the class to make progress and , further, that the behaviors were addressed within the class students who are suspended.

(T. 150) He described the behavioral environment in the school generally as “quite good.” (T. 152) Services mandated on this student’s IEP were available. (T. 151) The school has some 1200 students. (T. 157) Physical altercations occur “once in a blue moon” and have not occurred in a class during the 2012-2013 school year. (T. 159-160)

testified that she is a certified teacher with DOE experience, taught a class for many years, and has been education coordinator at the recommended school for several years and is also the school’s teacher. (T. 176-177, 179, 206-207) She receives monthly training in education. (T. 180) The school has some 200 students with IEPs in various programs with 90 students in self-contained classes. (T. 182, 184) She observes all education classes at least weekly and sometimes daily.

(T. 181, 206) In the program, a program is provided for five academic periods per day ( ) and is also provided for three additional periods per week of which is an additional reading class. (T. 183-184, 221) During the week there are three periods for “talent” classes, two periods of and lunch when the student are not in a setting. (T. 183, 221,

224) The talent classes have from 20-30 students with one teacher and lunch is for some 400 students with substantial staff present. (T. 223, 226) The students normally travel in a group with the and are usually on the same floor with their grade level and there is substantial staff present in the halls. (T. 185-186, 191) All academic area teachers are certified. (T. 238-239)

stated that there were about class at the beginning of the school year between years old and there are six students now but not all the same students. (T. 210, 217, 218) The functional levels in the class range between level in (T. 186, 217) Instruction is differentiated, work is modified, students are grouped usually in groups of three and one to one and whole group instruction is provided. (T. 186-190, 237) Based upon her reading of the IEP, the student is similar to the others in the class with regard to and the student could be appropriately grouped. (T. 200-201) Students in the class in September had classifications of and had to deal principally with calling out and needing redirection but their behaviors do not impede the ability of other students to make progress. (T. 201-202, 218) The behaviors specified in this student‘s IEP are similar to those of students in the class. (T. 205) There are in and reward systems in place, she pulls children out for talks as well if needed and there are (T. 202-204) The same is present for all classes. (T. 220) Common grade standards are followed. (T. 231) For children with lunchroom difficulties other arrangements could be made. (T. 233-234, 237)

stated that she believes that the school is easily navigated and she is in and out of classrooms often and does not think that it is (T. 200) She denied telling any parent that group would not be appropriate or that small group instruction would not be sufficient. (T. 191, 194)

2) Parent

The parent presented the testimony of: (“ ”), teacher at ; (“ ”), an official; and the student’s mother (“the parent).

was the student’s teacher. (T. 368) Her testimony included the following:

She is a New York State certified education teacher grades early childhood through 9th. (T. 365) ’s 8th grade and high school campus is in a separate building. (T. 365) provides professional training and an educational supervisor provides daily assistance. (T. 367) There are numerous team meetings with varying staff composition which discuss the student frequently and she meets frequently with the student’s due to the student’s need for a lot of support. (T. 397) The upper school has approximately 40 students who all eat together unless they elect to eat with friends in a quieter place or elect to do homework in the homework room. (T. 396397)

described the student as interested in having friends but having challenges maintaining friendships and negotiating social situations, being below grade level, with scattered skills and needing academic support and wanting to please teachers. (T. 369-

370) At the beginning of the school ), his instructional respectively, with support but lower independently The program used from a number of texts and is , interactive and flexible which allows the student’s individual needs to be addressed. (T. 372-373) There were class, at similar reading levels with this student at about midway, as well as a teaching assistant, which allowed one to one and other academic support. (T. 375-376) developed the student’s goals after review of his records, portfolio and pretesting results. (T. 378-379, Ex. J) The student has progressed in and worked turned in. (T. 379-381) She estimated his end of year to be instructionally at grade, respectively. (T. 381-382) The student also takes a reading class from another teacher, who is a learning ist, which focuses on skills instead of discuss the student every day to ensure that reinforcement occurs. (T. 382-383) Reading is taught with the same students but in a and the student has progressed in similar ways. (T. 383-385)

as taught in a class which began with students and ended with and a teaching assistant was present. (T. 385-386) opined that class size is very significant because of the student’s very scattered skills. (T.386-387) A is used which involves manipulatives and group work and focuses on application in the real world which maintain the student’s interest and investment which keeps him at task. (T. 389-390) At the beginning of the school year, calculation and problem solving were with support at grade levels, respectively, and the student was at about the middle of the similarly functioning class. (T. 387-388, 390-391) The student has progressed in areas, as demonstrated by , and is currently with support at for calculation and problem solving, respectively. (T. 391-393) The student’s science class was (T. 393-395) His social studies class of students was taught by a teacher and a . (T. 395-396)

Academic skills are formally assessed by final exams focusing on what they learned and by at the end of each school year which help guide the teachers as to what they need to work on. (T. 407-408)

is a New York State certified school and also an AP and director of clinical services and he works at the upper school. (T. 249-250, 253) His testimony included the following:

is able to issue a local, independent diploma. (T. 261) Its upper school related services staff includes , school s, school Professional training is provided to and outside training is utilized by related service and instructional staff. (T. 255-258) There are no mainstreaming opportunities within the school but field experiences provide certain necessary skills. (T. 284) The student is grouped for the most part with students in the grade but for some classes, including art and gym, there is some mixed grade grouping. (T. 263)

had no experience in working in a community school with programs, has never observed the student in a community school and had no knowledge of how much mainstreaming there would be in a what supports are present during transitions or what the specific role of the would be with regard to transitions in a large school. (T. 292295, 298)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A) Facts

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified truthfully in accordance with their specific knowledge, recollections and as to the opinions they held. The relevant testimony is discussed below.

The information stated in the “Background” section above is specifically included herein as factual findings.

Transcript and Exhibit references not specified below are set forth above.

B) Analysis

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at

806, n.7 (N.D. N.Y. 1998)

Prong 1

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate education services (Application of a Child with a , Appeal No. 04046; Application of a Child with a , Appeal No. 02-014; Application of a Child with a , Appeal No. 01-095; Application of a Child Suspected of Having a , Appeal No. 93-9). While school districts are required to comply with all Individuals with Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. 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. § 300.550[b]; 8 NYCRR 200.6[a][1]).

1) CSE Review

a) Procedural Defect Claims

The parent asserts that there were numerous procedural defects and that as a consequence the IEP is a nullity. However, whether considered individually or in the aggregate, “[p]rocedural violations … only …[automatically entitle the parents to reimbursement] if ‘they impeded the child’s right to a [FAPE],’ significantly impeded the parents’ opportunity to participate in the decision making process’ or ‘caused a deprivation of educational benefits’ [citations omitted]” R.E. v. New York City Dept. of Educ., 694 F. 3d 167, 190 (2d Cir 2012). I conclude that procedural violations, whether considered individually or in the aggregate, did not have any of those effects in this matter.

The parent claims that the IEP was predetermined because the CSE prepared a draft in advance. (T. 470) However, the mere fact that a draft was prepared is not a basis for a conclusion that the recommendation was predetermined. In this matter, credibly testified that the draft was prepared based upon substantial evaluative material previously obtained, that a copy was given to the parent at the review, that each provision was gone over and that she wrote the final IEP based upon what was discussed at the meeting. (T. 36-38, 68, 90-92) Accordingly, I conclude that it was not predetermined.

The parent claims that the CSE was improperly constituted pursuant to 8 NYCRR 200.3[a][3] because the CSE education teacher would not be implementing the IEP and there was no evidence that there was anyone present familiar with the continuum or the program proposed. (T. 471) However, the evidence shows that both and the CSE education teacher member had very extensive DOE and CSE experience and I conclude that they were very knowledgeable about the continuum and the program recommendation and that other program possibilities were discussed. (T. 43- 44, Ex. 2) To the extent that the parent asserts otherwise, I do not find that testimony reliable and note that the parent testified concerning certain memory concerns. (T. 350) Although there was no education teacher present at the review who could have personally implemented the proposed IEP, I do not find that a procedural violation, here where the student’s education teacher was present. Further, even were I to conclude that the mere fact that that teacher was from a private school negated the appropriateness of his participation as the mandated education teacher and therefore that a procedural violation occurred, I find that in the circumstances here that error did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.

The parent notes that a social history was not created for this triennial and therefore the CSE lacked knowledge of the student relevant to the determination of an appropriate program. (T. 471) However, credibly testified that sufficient information was obtained from the parent as well as reports submitted, which included three , and that the parent’s concerns arising from the student’s history were discussed.

(T. 124, Ex. 2) Accordingly, I conclude that even were a “social history” report required, the failure to have one here did not impede the student's right to a FAPE, significantly impede the parent's opportunity to participate in the decision-making process, or cause a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; see 34 C.F.R. § 300.513; 8 NYCRR 200.5[j][4]) Appeal No. 11-040.

The parent makes various claims concerning the goals. (T. 475) I find credible ’s testimony that the substance of the goals were fully discussed and that the CSE relied upon the teacher’s input which was “critical.” (T. 97, Ex. 2 ) I find credible her testimony that the written goals were based upon that discussion. (T. 66-67) Such claims as have been made with regard to specific goals I find de minimus, particularly in view of the numerous detailed goals provided. (T. 475) Here, where the evidence is persuasive that the CSE based the goals upon information provided by , that they were in accordance with the student’s and that they were each generally discussed. I find no procedural defect in connection with the goals. Appeal No. 11-040.

Accordingly, the DOE has established that there is no basis for invalidation of the IEP based upon procedural defects.

b) Substantive defect claim

It is well established that “[s]ubstantive inadequacy automatically entitles the parents to reimbursement.” R.E., 694 F. 3d at 190. The parent claims that the material does not support the program recommendation made. (T. 47) She asserts that the observation, which was in an setting, reported that the student was distractible and needed significant individual support which is inconsistent with a recommendation for only academic classes. (T. 96, Ex. 5) Further, the 2010 stated that the student had failed to progress in a setting and the parent asserts that there is no documentary evidence submitted indicating that progress had ever been made in such a class. (T. 472-473) The parent also notes that the DOE , although reporting progress at , had not indicated that progress in a less intensive program could be made. (T. 474, Ex. 4) With regard to social difficulties, the parent claims that the CSE did not take into account the social difficulties noted on the IEP in its recommendation which would place the student in a mainstream environment for a significant portion of the day and there was no basis for a conclusion that the supports provided would be sufficient either for mainstream or in the classes. (T. 475, Ex. 1) The parent notes that the DOE had no knowledge as to what the placement would be and therefore had no basis for a determination that the recommended program at that school would be appropriate for this student in view of social and . (T. 115, 120 478-491) Further she asserts that staff testified that the support provided would be insufficient.

However in this matter the evidence shows that the review was very comprehensive and that all areas were discussed. Further, I am persuaded that the CSE thoroughly considered the contents of the reports available to it and was aware of the . Although the high level of behaviors noted in the classroom observation is troublesome, it is noteworthy that the education teacher who conducted the observation was present at the review and, I conclude, concurred in the recommendation. A and support in the classroom for academic subjects was included which opined was appropriate in view of his cognitive levels since he had attained literacy and could learn.

(T. 76-77) While the recommendation is less intensive then the program provided at , the evidence does not support a conclusion that he could not be expected to make meaningful educational gains in that program even if not the same gains as at . Moreover, testimony as to the CSE’s belief, based upon its analysis of all the documents before it that progress could not be definitively linked to participation in a different program was persuasive. (T. 52) Further, there is no basis for a conclusion that the abuse the student experienced in his most recent community school placement, which was a factor in his difficulties there, is an expected condition in every community school and it is noteworthy that the student was at a different . (T. 52-53)

Additional supports and specific goals were provided which would help the student with social issues that might occur in his mainstream activities. (T. 78) With regard to those activities as well as transitioning issues in a large school, I note that the actual number of periods spent in mainstream activities was very limited and that the class accompanied the students during the major part, if not all, of transitioning. Further, the CSE concluded that there was an educational benefit to learning to navigate a mainstream environment in a supported situation. (T. 76-78)

The DOE does not dispute that there were no persons present knowledgeable about the specific placement and how the IEP would be implemented there. However, it is established that that is not required. R.E. Finally, although I note that the student’s teacher and the AP opined that the CSE’s program would be insufficient to enable the student to make appropriate progress in view of his , neither had experience with a program or with a community school.

Here, the evidence shows that a very experienced CSE team considered sufficient material as well as input from teacher and parent, both of whom had an opportunity to state their concerns. This student’s were thoroughly discussed and considered before the recommendation was made. The credible testimony shows that the determinations were not made unreasonably. The fact that the program might have been better for this student is not a basis for conclusion that the recommendation was not appropriate

Accordingly, I conclude that the DOE has met its burden to establish that the April 2012 IEP was reasonably calculated to enable the student to make meaningful educational gains.

2) Placement

The parent also asserts that the DOE failed to offer an appropriate placement. The Second Circuit has made clear that certain considerations with regard to a placement which a student has not attended are speculative in nature and therefore not a basis for conclusions that a district failed to provide a FAPE. R.E. v. N.Y.C. Bd. of Educ., 694 F. 3d 167 (2d Cir. 2012) However, R.E does not relieve a district of its continuing burden to establish FAPE by demonstrating that its proposed placement conforms to its IEP. In fact, it unequivocally endorses the need for “implementation” evidence when it states that a school district “may select the specific school” provided “it conforms to the program offered in the IEP.” Id. at 191-192. Further, it notes that placement evidence can be cited “to show” that the child was denied a FAPE because necessary services were not provided in practice.” Id. at 187 n.3.

Post R.E. cases have also found that the burden remains on the district. See, B.R. v. N.Y.C. Dept. of Educ., 2012 U.S. Dist. LEXIS 182305 (S.D.N.Y. December 26, 2012) (the fact that the student did not attend the school does not relieve the DOE of its burden to establish that it provided an adequate placement); J.F. and L.V. v. N.Y.C. Dept. of Educ., 2012 U.S. Dist. LEXIS 170637 (S.D.N.Y. November 27, 2012) (the district must show it provided an environment reasonably calculated to enable the student to receive educational benefits); R.C. and L.C. v. Byram Hills Sch. Dist., 2012 U.S. Dist LEXIS 165878 (S.D.N.Y. November 16, 2012) (placement defects could constitute a material failure to implement an IEP); D.C. v. N.Y.C. Dept. of Educ., 2013 U.S. Dist. LEXIS 42764 (S.D.N.Y. March 26, 2013) (FAPE found to be denied when the school district failed to show with permissible evidence in the record that the IEP could be appropriately implemented).

With regard to specific factual claims concerning the proposed placement, the parent asserts that the DOE has failed to establish that in this school the student would be grouped appropriately, that curricula appropriate for this student would be provided, that the para would appropriately trained, that transitions could and/or would be appropriately managed and that the student would be overwhelmed in a large facility. Further, although the parent did not testify concerning this, she had informed the CSE that she was told was by school staff that the student would not be appropriately placed there and that claim was repeated in her hearing request. (T. 482, Exs. E, 2) Initially, I note that the speculative nature of many of these claims in the circumstances here has been specifically noted and disapproved by the 2nd Circuit in R.E. Further, the credible testimony of and supports a conclusion that the grouping and curricula would be appropriate and that transitions would be supported. The parent’s written claim that she was told by school staff that the placement would not be appropriate I give little weight here where the specific information provided to that person is unknown. I also note that the both and denied that communication. I find no basis in the record here for concluding that that IEP could not be appropriately implemented in the placement provided.

Accordingly I conclude that the DOE has established that it provided a FAPE. In those circumstances. I do not address claims relating to the placement provided and the parent’s request for prospective DOE funding.

Order

This matter is DISMISSED.

Dated: September 12, 2013 Corrected Date: September 27, 2013 (Page 23 previously omitted)

________________________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 35 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If the parent plans to appeal the decision, a notice of intention to seek review shall be personally 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 so that a certified copy of the hearing record may be prepared for submission by the school district. If a school district plans to appeal the decision, the district shall file a certified copy of the hearing record together with its petition.

An appealing parties' petition for review shall be personally served upon the opposing party 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. (8 NYCRR § 279.2(b))

The rules of procedure for proceedings before a SRO are found in Part 279 of the Regulations of the Commissioner of Education available at http://www.sro.nysed.gov/part279home.html.

DOCUMENTS ENTERED INTO THE RECORD

1 IEP, 4/2/12, 15 pgs. Department of Education

2 CSE Review Minutes, 4/2/12, 2 pgs. Department of Education

3 FNR, 8/15/12, 1 pg. Department of Education

4 evaluation, /9/12. 6 pgs. Department of Education

5 Classroom Observation, 2/7/12, 2 pgs. Department of Education

6 School Progress Report, 3/12/2012, 10 pgs. Department of Education

7 School Progress report, 12/14/12, 8 pgs. Department of Education

8 Due Process Complaint, 12/5/12, 2 pgs. Department of Education

9 Due process Response. 12/10/12, 4 pgs. Department of Education

A WITHDRAWN- Duplicative

B WITHDRAWN-Duplicative

C , 4/2010-6/2010, 15 pgs. Parent

D Parent Letter to CSE & fax confirm., 8/17/12, 2 pgs. Parent

E Parent letter to CSE & fax confirm., 9/11/12, 3 pgs. Parent

F WITHDRAWN

G Semester Goals and Objectives, 9/5/12-1/22/13, 3 pgs. Parent

H Report, 11/6/12, 1 pg. Parent

I Student Report System, 2/7/13, 9 pgs. Parent

J Semester Goals and Objectives, 1/23-6/18/13, 2 pgs. Parent

K report, 4/5/13, 1 pg. Parent

L Attendance Report, 1/31/13, 1 pg. Parent M Enrollment Contract, 3/22/13, Attendance Rpt., 1 pg. Parent

N Student Affidavit of Payment. 1/10/12, 1 pg. Parent

O Proof of Payment, various dates, 1 pg. Parent

P Signed Tax Returns, 2011, 2 pgs. Parent

Q Signed Tax Returns, 2012, 2 pgs. Parent

R Letter from atty re tax exemption, undated 1 pgs. Parent

S results, 5/14/12; 5/30/13, 4 pgs. Parent

T Daily Schedule, 2012-2013, 1 pg. Parent

I Prehearing Conference Memo Impartial Hearing Officer

II Compliance date extension decisions Impartial Hearing Officer