New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District: 22

Hearing Requested By: Parent

Date of Hearing: April 4, 2013

April 23, 2013

May 1, 2013

June 3, 2013

June 25, 2013

Actual Record Closed Date: August 8, 2013

Hearing Officer: Lorraine Gross, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 4, 2013

ESQ., Law Offices of — Student

Parent Representative, Law Offices — Student

Parent/Mother — Student

ESQ., Attorney, — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 23, 2013

Attorney — Student

Attorney — Student

Parents

Aunt — Student

Attorney — DOE

Psychologist (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 1, 2013

ESQ., Attorney — Student

ESQ., Attorney — Student

Parents

Maternal Aunt — Student

ESQ., Attorney, — DOE

Assistant Principal, (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 3, 2013

Attorney — Student

Attorney — Student

Mother — Student

Family Member — Student

Special Ed Teacher, — Student

Special Ed Teacher, — Student

Learning Specialist, — Student

DOE Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 25, 2013

Attorney — Student

Attorney — Student

Parents

Family Member — Student

Director of Admissions — Student

DR., Neuropsychologist — Student

Attorney — DOE

The matter of . came before me on April 4, 2013 , April 23, 2013, May 1, 2013, June 3, 2013, and June 25, 2013 pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1). Appended to the record are lists of persons in attendance and documents submitted into evidence.

ISSUE

Are s parents entitled to reimbursement of tuition paid for their unilateral placement of their son in ), a private special education school, for the 2012-2013 school year?

The parents withdrew their request for provision/funding of transportation with limited time travel. (Exh. A. at 7, Tr. at 361)

THE DEPARTMENT OF EDUCATION’S POSITION

The Department's attorney, , posited that was offered a free appropriate public education (FAPE) by the Department for the 2012-2013 school year. A valid Individualized Education Plan (IEP) meeting was held on May 29, 2012, at school by the School Based Support Team (SBST) which was attended by all required members as well as mother. The team reviewed all relevant evaluations and reports and recommended a 12:1:1 program in a community school with the related services of speech, occupational therapy, and counseling. s mother fully participated in the review and her input was sought after. (Tr. at 193) As the parent rejected the placement in June by notice of unilateral placement, the Department need not provide testimony regarding the proposed class as there was no proposed class at that time. The parent relied solely on the IEP and analysis should be limited to that.(Tr. at 194) Notwithstanding that, the parent will not meet the burden of proving that is appropriate and the equities favor the Department. The request for tuition reimbursement should be denied. (Tr. at 194-195)

THE PARENTS' POSITION

parents' attorney, , stated that s parents were seeking tuition for , a New York State approved non-public school for the 2012-2013 school year. has disorders in . He has but has , difficulties with in , all of which in school. attended an Integrated Co-Teaching (ITC) kindergarten class at for the 2011-2012 school year. Despite individual attention in class, small group learning, pull out learning from Learning Leaders, Academic Intervention Services, and receiving additional Orton Gillingham instruction after school from a Wilson certified teacher at his parents' expense, he continued . At the end of the school year, the parent received a letter from the school indicating that had for and would be held over. Although the parent communicated her concerns to the school throughout the 2011-2012 school year, and provided them with a private neurological evaluation, not much was done to address her concerns. (Tr., at 533-534) The IEP team recommended a 12:1:1 class in May without fully exploring other options as the team believed they had to try every possible placement on the continuum without having seen in a 12:1:1 and without considering all of the individual attention he had received during the 2011-2012 school year. The parent expressed her concerns that the 12:1:1 would not provide with a sufficient level of attention from a trained teacher and would not address the issues and recommendations of the neuropsychologist. The parent asked the team to consider recommending "defer to the Central Based Support Team "(CBST), for consideration of an approved non-public school but the team refused to do so. The parent asked for additional reading intervention to be included on 's IEP but the team refused this too. The IEP failed to accurately reflect 's current levels of performance, failed to recommend a sufficient number of appropriately measureable goals, failed to accurately reflect the results of evaluations, and failed to offer a special education program and services tailored to his unique needs. (Tr. at 535-536) The parent visited a program at another site, and then the one at when it was formed this school year. She notified the SBST both times that the program was not appropriate but received no response. She enrolled in and that school is appropriate academically and socially. The Department failed to offer a FAPE this 2012-2013 school year, is appropriate, and the equities support an award of tuition reimbursement. (Tr. at 537-538)

FINDINGS OF FACT

1. is a who attended for the 2012-2013 school year. (Exh. 3 at 1, Exh. X-1)

2. When was in pre-kindergarten, his pediatrician advised his parents that he should be evaluated. (Tr. at 665, Testimony of 's mother)

3. 's mother referred her son to the CPSE for evaluation when he was in pre-kindergarten during the 2010-2011 school year, which resulted in his obtaining special education services. (Exhs. xxx-zzz, Tr. at 665-668, Testimony of 's mother)

4. In March 2011, 's mother hired a private Orton Gillingham certified special education teacher to provide individual services to for one hour per week.

The teacher worked with him until early spring of 2012. (Tr. at 669-671, Testimony of 's mother)

5. For the 2011-2012 school year, attended an ICT kindergarten program at PS 207 where he also received occupational, speech/language, and counseling therapies. In October 2011 his teacher initiated placement in the Learning

Leaders, a literacy based small group instruction program, as well as additional reading remediation in a small group. (Exh. 4 at 3)

6. also received Academic Intervention Services (AIS) during the 2011-2012 school year. (Tr. at 261-262,Testimony of School Psychologist)

7. He received services from Learning Leaders in reading and math, two days per week, during the 2011-2012 school year. (Exh. LL)

8. received a lot of 1:1 attention in kindergarten during the 2011-2012 school year either from the regular education teacher or the special education teacher; usually at least for one half hour a day. (Tr. at 491, Testimony of 's special education teacher for the 2011-2012 school year)

9. Despite the interventions in reading, in April 2012 he remained at the early emergent level and was not expected to be promoted to the first grade. (Exh. 4 at 3)

10. struggled quite a bit in the 2011-2012 school year despite all of the attention he received. (Tr. at 495, Testimony of 's special education teacher for the 2011-2012 school year)

11. complained of stomachaches, headaches, and exhibited urinary problems during the 2011-2012 school year. He did not want to go to school and began making self-deprecating remarks. (Tr. at 673-674, Testimony of 's mother)

12. During the 2011-2012 school year, 's mother received a "promotion in doubt" letter sometime before the first report card that is issued in March. (Tr. at 496, Testimony of 's special education teacher for the 2011-2012 school year)

13. was not promoted to the first grade at the end of the 2011-2012 school year. (Exh. M, Tr. at 311, Testimony of School Psychologist)

14. did not meet most of his IEP English Language Arts goals during the 2011-2012 school year, although he met one of them, and he made progress in all of them. (Exh. FF, Tr. at 514, Testimony of 's special education teacher for the 2011-2012 school year)

15. He learned about 10-12 sight words during the 2011-2012 school year out of over 50 presented. (Tr. at 525, Testimony of 's special education teacher for the 2011-2012 school year)

16. A pediatric neurologist, Dr. Giridharan, evaluated on May 10, 2011, during 's pre-kindergarten year, for his learning difficulties and short attention span. The doctor found a significant discrepancy between his cognitive skills and his achievements tests indicating a high risk for a learning disability, i.e. dyslexia. (Exh. WWW at 1)

17. Dr. Giridharan recommended, inter alia, a small structured class, preferably a CTT class, specific teaching methods such as Orton Gillingham, and a follow up evaluation in six months. (Ex. WWW at 3)

18. , a neuropsychologist tested in September and October of 2011 when he was old and in kindergarten. achieved a full scale average, with a in the superior range. (Exh. L at 1)

19. In s October 2011 evaluation, she recommended, inter alia, continued and increased intensive intervention with an reading specialist both inside and outside of school. (Exh. L at 25)

20. also recommended in October 2011, inter alia, that if did not make adequate progress with remediation for the remainder of that year, he would require full time placement in a specialized program for Only in that type of environment could he be taught content based information at a level consistent with his , while his would be addressed using a full time highly structured multi-sensory approach. (Exh. L at 25)

21. noted that displayed sequential organizational and planning challenges and he would profit from organizational cues, a color-coded approach, the use of arrows and numbered steps. would also profit from the provision of step-by-step recipe like directions, graphic organizers and outlines to use with all academic tasks. (Exh. L at 27)

22. testified at the hearing concerning 's struggles when he had to retain auditory linguistic information and opined that the only effective approach for him was presenting information in a multi-sensory format with much repetition. (Tr. at 771-772, Testimony of Dr. )

23. Dr. testified that she was very concerned about after her first evaluation. She wanted him to have intensive intervention in and out of school. She asked 's mother to look into different types of learning environments with smaller classes where multi-sensory techniques and repetition were used. She also wished to receive language and education therapies. (Tr. at 773-774, Testimony of Dr. )

24. A neuropsychological evaluation update, conducted by Dr. , dated April 18, 2012, found that achieved a on the Stanford-Binet Intelligence Scale -

Fifth Edition with an and a . (Exh. 4 at 1)

25. On the update of April 18, 2012, 's social emotional functioning as tested by the Vanderbilt Assessment Scale Parent Informant, and the Vanderbilt

Assessment Scale Teacher Informant, was clinically significant for challenges, , and . (Exh. 4 at 2,3)

26. On the neurological update of April 18, 2012, met the DSM IV criterion for the , (Exh. 4 at 11)

27. Dr. stated in the update of April 18, 2012 that it was critical that receive intensive multi-sensory reading. writing, and math instruction with a specialist in the area of or a similar multisensory reading program in and outside school. She repeated her October 2011 recommendation that requires full time placement in a small specialized program for bright students in a small full time special education school for . needs full day multi-sensory support. Only in this kind of program can he be taught content based information at a level consistent with his abilities.(Exh. 4 at 11-12)

28. stated in the update of April 18, 2012 that requires continued language therapy to address his , and . He requires therapy to address his superior reasoning skills while his , and are addressed. (Exh. 4 at 12)

29. opined in the update that requires continued occupational therapy to address his under-developed letter recognition, his visual motor coordination and . He needed therapy to address his and organizing his motor movements when writing letters and numbers. (Exh. 4 at 12)

30. The also noted that would profit from pre-teaching summaries, scaffolding, simplified tasks, reminders to attend, and testing accommodations. (Exh. 4 at 13-14)

31. Dr. testified that the progress had made from October to April in the 2011-2012 school year, was not typical of the progress a five year old should have made. (Tr. at 776, Testimony of Dr. )

32. Dr. testified that in the April update evaluation appeared to be still very school and that were placed on him in school. (Tr. at 778, Testimony of Dr. )

33. Dr. testified that in April 2012 she felt that a different type of educational environment should be explored. She recommended a small structured school that could provide a multi-sensory approach to learning. (Tr. at 778-779, Testimony of Dr. )

34. In a classroom observation dated May 29, 2012, had by the teacher, he , and had to be stopped by the teacher as he and had his face by another .

(Exh. 5)

35. A progress report dated May 24, 2012 found that had word finding with retelling events from a story, explaining attributes of objects explaining differences, and maintaining a conversation. The therapist opined that needed improvement in his phonological awareness skills. (Exh. 6)

36. An occupational therapy annual review plan conducted on May 29, 2012, recommended that continue occupational therapy for individual 30 minute session 2 times per week to address his self regulation, sensory processing, attention, core and intrinsic muscle strengthening, grapho-motor skills, writing, body awareness, following directions, and improving on task . (Exh. 7 at 2)

37. An IEP was developed for on May 29, 2012, that classified him as having and recommended special education program of a 12:1 + 1 special class, with the related services of therapy for 2 individual 30 minute sessions per week, and group of 3- 1 X 30, individual occupational therapy 2 X 30, and individual counseling, 1 X 30. (Exh. 3 at 1,6-7, 9)

38. At the time of the IEP meeting 's reading level was at the beginning to mid-kindergarten level. (Tr. at 295, Testimony of School Psychologist)

39. The IEP team was aware at the May meeting that 's promotion was in doubt. (Tr. at 310, Testimony of School Psychologist)

40. The IEP team was aware of Dr. 's April 2012 update as 's mother shared the results with and the school staff. (Tr. at 686-687, Testimony of 's mother)

41. Prior to the IEP meeting a draft IEP was prepared by the school psychologist with individual input from the service providers and 's teachers. (Tr. at 268-269, Testimony of School Psychologist)

42. 's mother was not given a copy of the draft IEP. (Tr. at 688, Testimony of 's mother)

43. Present at the IEP meeting were 's then current kindergarten general education teacher, and his special education teacher. Also present were the school psychologist , an IEP teacher, 's mother, and a parent member participated by telephone. (Tr. at 202)

44. was not present for 50 minutes of the meeting. (Tr. at 687, Testimony of 's mother)

45. The team reviewed 's report card, his progress assessments from his classroom teachers, progress reports from his providers, the private neuropsychological report and update, and a classroom observation. (Tr. at 203, Testimony of )

46. The team created a draft IEP from the evaluations and reports and discussed goals and recommendations (Tr. at 204-205, Testimony of School Psychologist)

47. The team did not discuss Dr. 's evaluations at the meeting. (Tr. at 690, Testimony of 's mother)

48. The team did not review the prior IEP to determine if the goals were met. (Tr. at 692, Testimony of 's mother)

49. The IEP meeting/Educational Planning Conference (EPC) lasted over three hours and everyone went over how he was doing including 's mother who voiced her concerns. (Tr. at 205, Testimony of School Psychologist)

50. The team discussed the fact that had made some progress over the year, but he was still below kindergarten standards in his ability to be promoted. He was reading on an early emergent level so although able to identify letters and even mirror sounds, he was not yet reading. (Tr. at 207, Testimony of School Psychologist) He , attention, concentration, a reading disorder, and phonetic awareness. (Tr. at 207-208, Testimony of School Psychologist)

51. 's special education teacher stated at the meeting that 's knowledge of his letters was inconsistent. (Tr. at 283, 285, Testimony of School Psychologist)

52. The team discussed the progress he made , as he was , could better control his behavior, improved but he . He was more able to sit in his chair, he still called out but not as much, and he still had a and on class work. (Tr. at 211,216, Testimony of School Psychologist)

53. The management needs on the IEP addressed his , his , his and his functional ability within the classroom. (Tr. at 214, Testimony of School Psychologist)

54. The counselor stated at the conference that was doing wonderfully and was not really in school anymore. (Tr. at 215, Testimony of School Psychologist)

55. 's mother disag with this analysis in testimony as she stated that was not happy and did not want to go to school. (Tr. at 694, Testimony of 's mother)

56. The team recommended occupational therapy to address attention, , 1:1 guidance, and speech therapy to address his expressive language delays, as well as his phonetic awareness difficulties, and his language based disorder.

(Tr. at 216, 218, Testimony of School Psychologist)

57. s mother that one of the would be changed from individual to group.(Tr. at 697-698, Testimony of 's mother)

58. The academic goals on the IEP addressed 's math, reading and writing skills, and there were also goals to address his functioning in language, occupational therapy, and guidance counseling. The goals were drafted by and discussed at the meeting. (Tr. at 223, Testimony of School Psychologist)

59. Nass noted at the IEP meeting that 's academic functioning was inconsistent. (Tr. at 283, Testimony of School Psychologist)

60. 's knew the letters of the alphabet but reversed letters and mistook often.

(Tr. at 285, Testimony of School Psychologist)

61. The school psychologist at the IEP meeting could not recall whether the team reviewed 's prior IEP to determine whether or not the goals were met. (Tr. at 289, Testimony of School Psychologist)

62. The team recommended a 12:1:1 program because they felt that would perform more efficiently in a class with only twelve students with a great teacher to student ratio. They based the recommendation on the fact that was making minimal progress and performing standards. (Tr. at 229-230, Testimony of School Psychologist)

63. 's mother disag with the recommended program at the IEP meeting stating that she had observed such programs composed of children who were grossly dissimilar to . She also felt that the program would not provide enough individualized attention. (Tr. at 698-699, Testimony of 's mother)

64. 's mother discussed 's acceptance at ill with the team, but was told that they were not there to discuss a private school. (Tr. at 700-701, Testimony of 's mother)

65. 's mother told the team that ill was an approved non-public school, and would the team consider deferral to CBST as a recommendation. She was told that they would not as they felt they had an appropriate recommendation that would meet 's needs. (Tr. at 701, Testimony of 's mother)

66. 's mother asked the team to add AIS services to 's IEP. The team responded that they do not add reading services to an IEP; there is no "drop down" menu for that. (Tr. at 704-705, Testimony of 's mother)

67. 's mother requested additional reading intervention and reading support services at the IEP meeting, but the team felt that 's needs could be met in a 12:1:1 program. However, if he was not progressing by September, October or November they could then ask the administration for Academic Intervention

Services. (Tr. at 233-234, Testimony of School Psychologist)

68. Other programs were considered and rejected including the parent's request for deferring because the team felt that 's needs could be met in a program in a community school (Tr. at 231, Testimony of School Psychologist)

69. The team chose as it could meet his needs because there were only twelve students in the class, several adults, and so the group size would be less distracting for . The class would have more language enrichment. (Tr. at 231, Testimony of School Psychologist)

70. The team recommended a program at 's then current school, although a program for that grade level did not exist at the school at the time of the IEP meeting. (Tr. at 306-307, Testimony of School Psychologist)

71. 's mother did not reject the recommended program at the IEP meeting and stated that she was open to look at it but preferred the deferral to CBST. (Tr. at 232 , Testimony of School Psychologist)

72. The only section changed on the IEP from the draft IEP was the section concerning "other programs considered" and possibly the management needs.

(Exh. 3 at 10, Tr. at 279,281 Testimony of School Psychologist)

73. 's mother contacted the Assistant Principal of the school, after the meeting to express her concerns regarding the IEP as well as sending a letter addressing her concerns. She received no response to her letter. (Exh. F, Tr. at 706 -707, Testimony of 's mother)

74. 's mother contacted the proposed site's ) Assistant Principal, , in September 2012 to arrange a tour. ( Tr. at 382, Testimony of Asst. Principal)

75. 's mother contacted the school the first day of school and arranged to see the class the earliest date possible. The date was then postponed by (Tr. at 709, Testimony of 's mother)

76. 's mother visited a class on October 3, 2012. The class consisted of about 9 students, kindergartners and first graders, a licensed teacher, a classroom paraprofessional, and two other paraprofessionals each assigned to a child. (Tr. a 384-385, Testimony of Asst. Principal)

77. The two paraprofessionals that were each assigned to a student were crisis management paraprofessionals. (Tr. at 429, Testimony of Asst. Principal)

78. 's mother questioned and the class teacher concerning the classification of the students in the class and was informed that they were with one child having the classification . (Tr. at 711, Testimony of 's mother)

79. 's mother observed four students in the class working with the teacher for 50 minutes while the other students worked with the paraprofessional (Tr. at

714-715).

80. The class used manipulatives and magnetic letters. The teachers taught reading using some things in Fundations, in a balanced literacy approach with small groups. (Tr. at 386, Testimony of Asst. Principal)

81. The teacher does a mini lesson and then can do a lesson with a child while the other children work in a group. (Tr. at 387, Testimony of Asst. Principal)

82. In October 2012 none of the children in the proposed class were receiving services. (Tr. at 456, Testimony of Asst. Principal)

83. 's mother signed an enrollment contract for the 2012-2013 school year with ill on February 25, 2012. A non-refundable deposit of $5000 was due upon the signing of the contract. (Exh. W)

84. The tuition on ill's enrollment contract for for the 2012-2013 school year was a total of $46,000.

85. started attending ill on September 5, 2012. (Exh. X at 1)

86. ill's early school curriculum parallels the scope and sequence of study of many of the public schools in New York City and meets the New York State Learning Standards. (Exh. NNNN at 1)

87. The core of ill's reading program is , a highly structured, multi-sensory phonics based program that teaches decoding and encoding skills.

When students have completed this program they are decoding on approximately a mid-third grade level. (Exh. NNNN at 1)

88. ill's Elementary School is divided into 6 lower and 6 upper classes.

Homerooms are divided by students' learning styles, cognitive abilities, and language needs. Each homeroom consists of , a head and an assistant teacher. (Exh. U at 3)

89. Reading and math at ill are taught in small homogenous groups. As these subjects are scheduled at the same time, this permits flexible grouping and regrouping of students based on current levels of mastery and academic needs. (Exh. U at 3)

90. Students with additional needs at ill are seen in groups and individually as necessary or as specified in each students' IEP. The Reading Specialist and the Math Specialist meet regularly with teachers to provide ongoing support in reading and math development. (Exh. U at 3)

DISCUSSION AND CONCLUSIONS OF LAW

I find that The Department of Education should reimburse 's parents for the tuition paid to ill for the 2012-2013 school year. I find that the Department has failed to bear its burden that it provided personalized instruction in conformity with a written IEP to meet 's needs. A board of education may be required to pay for educational services obtained for a student by his or her parent if the services offered by the Board of Education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]). The Supreme Court, in 1993, further clarified that parents could place their children in a program that is not approved by the State and still receive reimbursement if it is appropriate under the IDEA. (Florence County School District Four v. Carter by Carter, 510 U.S. 7 [1993]). However, the case at hand concerns a program that is approved by the State and therefore the Burlington case is applicable.

For a program to be proper under IDEA it must ensure that students with disabilities have available to them a free appropriate public education (FAPE) which includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (See New York State Review Officer's Dec. No. 11-107) The 2004 IDEA Statement of Purpose for a FAPE states in part that all children with disabilities have available to them the appropriate public education that emphasizes special education and related services designed to meet their unique needs. (20 U.S.C. Sec 1400[d])

To meet the IDEA requirements a school district must provide each child who has a disability with special education and related services that are reasonably calculated to enable the child to receive educational benefits. (See 20 U. S.C. § 1401[9], Bd. of Educ. v. Rowley, 458 U.S.176 at 203-204). A school district fulfills its substantive obligations under the IDEA if it provides an IEP that is "likely to produce progress, not regression" and if the IEP affords the student with an opportunity greater than mere "trivial advancement." Walczak V. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d. Cir.1998) An appropriate education means that a child must be able to make meaningful educational progress. (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]).

An appropriate educational program begins with an IEP that reports the present levels of academic achievement and functional performance and indicates the individual needs of the student. (See 8 NYCRR 200.4[d][2][i]) The IEP also must establish measurable annual goals including academic and functional goals, consistent with the student's needs and abilities. (See 8 NYCRR 200.4[d][2][iii]) The IEP should also include short-term instructional objectives and benchmarks for a student who takes a New York State alternate assessment. (See 8 NYCRR 200.4[d][2][iii]) Finally the IEP should provide for the use of appropriate special education services to advance properly to obtain those goals. (See New York State Review Officer's Decision No. 11-021, 8 NYCRR 200.4[d][2][v][1]) An IEP is a "a written statement that ‘sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.'" (D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 [2d Cir.2006][quoting Honig v. Doe 484 U.S. 305,, 311, (1988), amended on other grounds, 480 F.3d 138] [2d Cir.2007])

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Schaffer v. Weast, 126 S. Ct. 528 [2005]) ,(Educ. Law § 4404[1][c]) .

A first inquiry in this case is to determine whether a the Department complied with the procedural requirements required by IDEA. In general, a hearing officer's decision on whether or not the district offered the student a FAPE must be made on substantive grounds. (34 CFR 300.513[a][1]) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies impeded the child's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE, or caused a deprivation of educational benefit. (34 CFR 300.513[a][2])

The parents argue that the Department committed a number of procedural violations. (See Exh. II at 8-11) However, I find that the violations do not add up to the deprivation of FAPE. (See J.G. v. Kiryas Joel Union Free Sch. Dist.777 F.Supp.2d 606 S.D.N.Y. [2011] where the lack of a general education teacher and a special education teacher at the IEP meeting did not rise to a lack of FAPE) Also see A.H.v. Dep't of Educ. of New York City, 394 F. App'x 718, [2d Cir. 2010]) I find that as 's mother she had an opportunity to participate and that as the meeting was long and rather thorough, there was no denial of FAPE on procedural grounds. I do find that the IEP was drafted almost in total before the meeting, and that the special education teacher only participated for part of the meeting, but do not think these violations rise to the deprivation of a FAPE for .

The second inquiry is whether the IEP substantively meets the requirements of a FAPE. I find that the Department has not met its burden of proving that they offered special education and related services that are that were reasonably calculated for him to receive educational benefits. The Department has not shown that the special education services offered to would have met his special needs or offer individualized instruction that would have permitted him to benefit from her education

The IEP of May 14, 2012 recommended a program for with related services in a community school. The thorough history in the record of 's year proceeding the IEP meeting demonstrates that this program, without additional reading services or teachers in the classroom, was insufficient for to make more than trivial progress. The Department's attorney objected numerous times at the hearing that the program and services that received during the 2011-2012 school year were not relevant to the May 14, 2012 IEP developed for the 2012-2013 school year. I disagree. This case, unlike so many others in New York City, is concerning a youngster who was in a public school setting at the time of the IEP meeting, and an IEP developed by the people in that same school setting. The team also recommended a different program in the same school setting for the following school year. In fact, the school psychologist in the school and on the IEP team, testified that the team had enough information to make an appropriate recommendation as they had the evaluations, the reports, and that "she also got to know over the year as well." (Tr. at 203-204)

The program that was in at the time of the IEP meeting was failing to meet his special education needs and offered no more than his ability to make trivial progress. His final grade on his report card was a 1 (out of 4) in recognizing common words in print and showing evidence of understanding text. The family comments on his final report card stated in part that the teachers "... are very concerned is not meeting grade level stands for promotion at this time and functioning far below grade level in reading. " (Exh. N at 2, 4)

was in a ICT class at P.S 207 for the 2011-2012 school year. An ICT program may not consist of more than 12 students with IEPs, regular education students, and both a general education teacher and a special education teacher. (8 NYCRR 200.6 ([g]) also received additional services of AIS and Learning Leaders, attention as well private after school services that were supplied by a special education teacher. With all of this, despite cognitive abilities in the high average range, was only reading at the emergent level at the end of the year and was not promoted to the first grade. (See Findings of Fact #s 5-9, 15,17) Based upon this level of services, it is clear that needed more intensive services for the following school year. Yet the IEP recommended a program with related services. It is true that a program has the additional staff member of a paraprofessional and is a smaller class than an ICT. However, it still consists of 12 special education students and only one special education teacher. There are no additional reading services recommended on 's May IEP, nor any other additional special education teacher services such as Special Education Teacher Services (SETS) to help him make progress. An additional paraprofessional in the classroom could not provide the kind of intensive reading teaching that required. The recommended program, as written, could offer only the kind of trivial advancement that made during that 2012-2013 school year. The recommended program would not have been sufficient as his ICT class had the same ratio of special education students to special education teachers - . The additional adult in the room who is not a teacher would not be sufficient to enable to The Department's attorney argues that the team was

....acutely aware of the student’s issues in the classroom during the 2011/12 school year through their direct, daily interactions with the student. The team appropriately recommended a program that gave the student additional supports and attention and that would have enabled the student the opportunity to make meaningful progress. Accordingly, there was no deprivation of FAPE. (Exh. I at 12)

However, I find no additional supports and attention in the IEP that would have enabled to make meaningful progress. The smaller class would not have been sufficient alone for him to make meaningful progress, and do not find the additional supports or attention other than an additional paraprofessional, on the IEP that would change my analysis.

's , Dr. , who tested on three separate occasions in three years, opined that needed two certified teachers for this school year. She felt that when the class breaks into groups he needed the kind of support that a certified teacher could give. She felt that a paraprofessional could not help him , and that it had to be done expertly. (Tr. at 785-786). She opined that she would be very concerned about a class with a teacher and a paraprofessional. (Tr. at 795)

The record is also clear that 's mother was unsatisfied with her son's progress during the 2012-2013 school year and tried to intervene to secure additional help for . She testified that the teachers informed her in the beginning of the school year that they were seeing issues. She contacted his teachers and providers and met with his special education teacher. Nass informed her that was functioning in the lowest 10th percentile of the class. (Tr. at 676) She discussed his placement with , the school psychologist, but said that was in the right class as he was making progress. (Tr. at 683 ) She secured a private neuropsychological evaluation in the beginning of the school year and shared it with the school personnel, requesting a meeting to evaluate 's progress and address the evaluator's recommendations. (Exhs. J, K, Tr. at 676-679) She wrote 's teachers in February expressing her concern with 's problems with sight words and asked for feedback and suggestions. (Exh. I) She met with his teachers in February and was told he was reading far below grade level. (Tr. at 685) In March 2012 she asked for an IEP review meeting to discuss alternative placement for the coming school year. (Exh. H) She sent the school psychologist the April follow up report to the neurological evaluation. (Exh. G) She testified that she informed the IEP team that she was concerned with his progress or lack thereof, and did not agree with the recommended program for the 2012-2013 school year.

The IEP developed for on May 14, 2012, fails to offer an appropriate program for his needs, with insufficient specific assistance for his reading deficits, and fails to offer sufficient measurable goals. The New York pertinent regulations state: ; 8 NYCRR 204.(d)(2)(iii) Measurable annual goals. (a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals must relate to: (1) meeting the student’s needs that result from the student’s disability to enable the student to be involved in and progress in the general education curriculum; and (2) meeting each of the student’s other educational needs that result from the student’s disability. (b) Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee,

The regulation requires the goals to meet the student's needs that result from the student's disability to enable the student to be involved in the general education curriculum, and meeting the student's other educational needs that result that result from the student's disability.

The IEP of May 2012 fails to include those academic and functional goals to enable to progress in the general education curriculum. The IEP has two annual reading goals. This youngster that , he finished reader . Yet his reading decoding annual goal is: "one year from now will demonstrate improved decoding skills by identifying all uppercase and lowercase letters, making sound/symbol associations for all letters and digraphs, blending and segmenting the sounds in CVC words and reading grade level sight words. His comprehension goal includes retelling a story with events in the correct sequence and finding the main idea and details. (Exh. 3 at 5). These goals appear to be the reading curriculum and not specific goals for 's needs. has memory problems, processing problems, and meets the DSM IV criteria for a Reading Disorder, Math Disorder and a Disorder of Written Expression. (Findings of Fact # 26) His writing goal, demonstrating improved skills by writing five complete sentences, using proper capitalization, punctuation and spacing, also seems to be for a different child. I also find the counseling goals insufficient as they do not , and I do not credit the school psychologist's self serving assertion that he no in school anymore, as she had previously testified that the team found (Findings of Fact # 52 and #54)

The parents' attorney argues, and I agree, that The IEP failed to include any goals to directly address ’s before the team attesting to the impact of those issues on ’s educational performance (Exhs. 3-4– 3-7, 4 – 10, L). (Exh. II at 32)

The IDEA does not establish a specific number of goals that must be included in an IEP, as that would contradict the premise that every IEP should be individualized. However, there should be at least one annual goal for each area of need. For example, in Bellflower Unified School District, 54 IDELR 66 (SEA CA 2010), a five-year-old boy's IEP was deficient because it did not contain goals to in the classroom, in class, or his . The IEP correctly notes 's many management needs but fails to provide any goals for meeting these needs. (Exh. 3 at 2) The neuropsychologist who tested discussed his organizational and planning challenges, yet there are no goals to improve either his organization or planning. (Exh 3, Findings of Fact # 25)

As the IEP is the document created for instruction for the following year, the goals are of critical important for the teacher to follow to enable the student to progress to be involved in the general education. The lack of appropriate goals on an IEP may be a procedural violation, but I find that this lack goes to the substance of the program being offered. The goals for are overbroad, inadequate, and fail to meet his many special educational needs

Having found the IEP inadequate due to its program recommendation and inadequate goals, I need not examine the program that would have received this year, but do find that the Department must provide for the use of appropriate special education services to properly obtain the goals on the IEP. I disagree with the Department's attorney that analysis should be confined to the IEP as the parent clearly made her placement decision well before her visit to the recommended school. (Exh. . I at 18) The parent could not visit the recommended program prior to the 2012-2013 school year as it was not in existence. The evidence is consistent that she tried to make an appointment to visit the proposed placement when the school year started, but was finally able to visit in October after the school personnel cancelled her first appointment.

Here, the parent visited the proposed class October of 2012. It is clear that the parent made her placement decision well before her visit to the recommended school. However, to meet its burden of proof, the DOE must demonstrate not only that it provided an appropriate placement offer to the student, but also that the placement was capable of appropriately implementing the student’s IEP. See D.C. v. New York City Dep’t of Educ., No. 12-Civ.-1394 (JGK), slip op. at 33 (S.D.N.Y. Mar. 26, 2013) I point out that the testimony concerning the number of students in the proposed classroom, and the extra services that they are receiving cannot be used to "correct" a deficient IEP as that is retrospective testimony that cannot be relied on. (See R.E. v. New York City Department of Education, 59 IDELR 241 [2d Cir. 2012], cert. denied [U.S. 06/10/13] [No. 12-1210], in which the 2d U.S. Circuit Court of Appeals precluded consideration of "retrospective testimony" in IDEA reimbursement actions. In denying review, the Court essentially upheld the 2d Circuit's determination that a court or hearing officer may consider only those services identified in the child's program at the time it is drafted).

As I conclude that the Department failed to meet the IDEA and Burlington Prong I requirement that the district offer a FAPE to , I turn to Prong II of the analysis: whether or not the parents' unilateral placement was appropriate; I find that it was. The test for appropriateness for Prong II of the Burlington analysis is whether a placement is “reasonably calculated to enable the child to receive educational benefits” and “likely to produce progress, not regression.” (Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 [2d Cir. 2006] quoting Bd. of Educ. V. Rowley, 458 U.S. 176, 207 (1982) and Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 133 [2d Cir 1998])

The record demonstrates that the services and program that received at ill were reasonably calculated to enable him to receive educational benefits and were likely to produce progress. I find that the parents have successfully met their burden of proof that the program at ill met the Frank G test. ill was an appropriate placement for and one where he made progress in meeting his special education needs. His placement there was reasonably calculated for him to made educational progress. ill 's reading program was multi-sensory and highly structured, the classes were grouped by needs, children with additional needs were seen in groups and individually, and the reading and math specialists met regularly with teachers. (Findings of Fact #s 87-90) The testimony of his special education teacher, testimony of the learning specialist, the testimony of his and his mother, also document the appropriateness of ill for . Additionally, the mid-year report card, the counseling update and report, the NYC ECLAS-2 Record of Child's Progress, the Student Progress Report, and the occupational and speech therapists evaluations further document the appropriateness of the services received at ill for the 2012-2013 school year.

, 's special education teacher at ill described ill as a school with classes that consist of 12 students, a special education teacher, and an assistant teacher. The school is approved by New York State for students who are classified as speech and language impaired, and learning disabled. It serves children from kindergarten through twelfth grade in three separate divisions. The elementary school consists of roughly 144 students in kindergarten through the fifth grade. Finkelstein's kindergarten class for the 2012-2013 school year consisted at the time of her testimony of 11 students aged five to seven. Both and the assistant teacher are certified by New York as general education and special education teachers. (Tr. at 542-545)

described 's special education needs. He was at the bottom of the class academically and needed extensive teacher support when given a task he perceived as challenging. He presented with academic challenges or unknown activities. He needed preparation and transitioning time for these challenges. He was able to maintain focus and attention with teacher prompting and refocusing. He had a difficult time organizing, and following multi-step directions. He needed steps repeated and rephrased; broken down into smaller components. He required academic information repeated and rephrased and the use of manipulatives to support his language. He could comprehend literal questions but questions that are inferential or more complex were difficult for him. He often needed help from the teachers expressing his ideas to others. (Tr. at 551-553)

Reading was taught using Wilson's Foundations, a multi-sensory Orton Gillingham based program. The literacy specialist is Orton Gillingham trained as are the teachers. They broke down into small groups of no more than 4 and each group worked with a certified teacher either Finkelstein, the assistant, or a literacy specialist. Each teacher had the ability to support if required. The groups traveled through stations that changed each day but there could be different multi-sensory activities such as practicing letter sounds using magnetic tiles, or working with sand or dry erase markers. Each station had a teacher so the children rotated through the stations and worked with all three teachers each day. The teacher opined that started ill in September with similar skills as first time kindergartners. He has made progress at ill this 20122013 school year. His still held him back but he knows all of his letter sounds and has begun to blend letters together to create words. (Tr. at 553-554, 569)

has also made progress with his math skills at ill. The teacher explained that they used a variety of math instruction trying to make it as sensory as possible. They began using unit six curriculum to build a basic number sense, and moved into Math and Focus which is a Singapore Math approach. has been introduced to numbers 1-100. He can count, identify, and show correspondence with numbers 1-10. They also used technology and I-Pads to practice the numbers. He now can compare numbers and has the word vocabulary to do simple math problems. They taught math as a whole group and then broke down into smaller groups each with a teacher, with one group working independently on a structured activity. (Tr. at 557-559)

also received speech and occupational therapy at ill. received speech in a group of 3 for 2 - 30 minute sessions per week. They worked on receptive and expressive language with an emphasis on pragmatic skills. needs to work in a group to practice his pragmatic skills with other children. He also received occupational therapy for 2 X 30, once in a 6:1 group and once in a dyad. (Tr. at 561-562) He also received counseling once per week in a group that was structured as a playgroup. (Tr. at 563-564) Social skills were addressed informally throughout the day. The social worker also attended recess everyday and intervened to assist with social language or different social skills. The speech therapist was present at lunch to also assist and guide appropriate conversation. (Tr. at 566)

the learning specialist, is certified in general and special education and has a literacy certification pending. She was trained in Foundations, first-third grades, is a facilitator in Wilson Foundations, and has training in preventing . (Tr. at 607-608) She is a learning specialist at ill concentrating mostly on literacy. She does small push outs and pull ins besides working as a coach for the teachers. (Tr. at 611) She pushed in to 's class to work on literacy instruction everyday for 45 minutes, and at recess everyday for 30 minutes. She testified that benefitted from the smaller group instruction, using manipulatives, and repeated exposure to concepts. He's was an yet so it's difficult for him level. He needed to stay with the group and . (Tr. at 612-615) She explained that was really at a pre-K level at the beginning of the year as he didn't have many sight words or know the sounds of letters. She opined that now he's working at a K.5 level. (Tr. at 617,619) He's making progress in his ability to write words. (Tr. at

620) She opined that a certified teacher would be more capable than a paraprofessional in providing him with the appropriate support that he needs in reading instruction, and did not feel that he would have made the progress he made without two certified teachers. He's learned a greater number of sight words, has developed greater ability to blend and segment sounds, and these foundational skills have allowed him to pick up a very low level reader and read it with a greater level of independence. She opined that he made a years worth of progress. (Tr. at 622-624)

opined that ill was an absolutely appropriate placement for . He has and although he does academic tasks, he is more willing to approach them. He He has the opportunity to be successful and proud of himself. (Tr. at 575-576)

's mother and neuropsychologist both felt that had made progress at ill in the 2012-2013 school year. His mother testified that about going to school, no longer has and is open again to learning. (Tr. at 732) He has improved academically as he know knows his letters and sounds, can tap out words, is acquiring sight words, and is reading. (Tr. at 732) Dr. assessed again in April 2013, and testified that was making obvious gains and that ill was appropriate to meet his needs. (Tr. at 782785)

The reports and evaluations from the providers at ill also document the appropriateness of the program for . The mid-year report card dated January 2013 notes the services that received including a weekly meeting with peers led by the social worker designed to encourage appropriate social interactions and develop communication skills. He also participated in a wide range of literacy activities including developing comprehension skills. (Exh. AAAA at 2) received ratings of frequently and always in behaving appropriately in a group, completing assignments, working independently, working in an organized manner and focusing on tasks, and following oral directions. (Exh. AAAA at 4) He required minimal teacher support or worked independently in naming the letters of the alphabet, and fluently producing sounds on consonants and short vowels when given the letter, and writing all lowercase letters. (Exh. AAAA at 5) He demonstrated improvements in his graphomotor skills as well as his receptive language skills. (Exh. AAAA at 11, 12)

I find the Department's attorney's arguments that ill was not appropriate as the teachers did not have sufficient qualifications and the school did not provide the appropriate level of related services to be without merit. (Exh. I at 21-22) The parents' attorney notes that ill is a New York State approved non-public school for children with language-based learning disabilities, like ’s. (Exh. II at 22). Furthermore, parents are not barred from an award of tuition funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student. (Frank G., 459 F.3d at 364 (citing Carter, 510 U.S. at 14); Application of a Child with a Disability, Appeal No. 00-068). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 102 (2d Cir. 2007).

I find that the parents have met the requirements of Prong III of the Burlington analysis, and that the equities favor the parents. The Department attorney argues that the parents never had the intention of sending to public school and did the bare minimum necessary for the appearance of good faith. (Exh. I at 23-26) I totally disagree. These are parents who already have an older child in the public schools and placed in a public school where he failed to meet the promotion criteria. The parents attended the IEP meeting, gave all private evaluations to the in a timely manner, and always made their concerns known to the school and the The Department attorney also argues that she need not have testimony from the proposed class as the parent rejected the program in June and there was no class in existence in June. (Exh. I at 16) I find that the credible evidence is that the parents rejected the placement with the hope that they could still put in a public school placement that was appropriate. 's mother made clear at the IEP meeting that she was not in agreement with the recommended placement. She also visited other programs that were in existence at the time of the FNR and did try to visit the recommended program in September, but due to the school's postponement, visited in October. She credibly testified that she signed a contract at ill and gave them a deposit to have a placement for her son, but that she was still hoping to get a suitable public school placement and have her two children at the same school. (Tr. at 726-729) She also made payments at ill before she even knew of the recommended placement because she "needed to secure an appropriate placement for " (Tr. at 731) 's mother's testimony and actions the year prior to this school year was consistent with doing everything possible to secure an appropriate placement including getting private evaluations, working with the school and asking for more services, and always voicing her concerns. I therefore credit her testimony concerning the reasons for signing a contract with ill during the 2011-2012 school year.

As I find that the parents have met all of the prongs of the Burlington analysis, I find and order:

The Department of Education shall reimburse 's parents for tuition paid to The ill School for their son for the 2012-2013 school year for a total amount of $46,000 upon submission of proof of contract and attendance.^[1] Dated: August 15, 2013

LORRAINE GROSS, ESQ.

Impartial Hearing Officer LG: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 THE RECORD

PARENT

A Impartial Hearing Request, 12/18/12, 9 pages B Letter to , and SBST, w/fax transmission

10/11/12, 6 pages, C Email, , 9/17/12-9/9/12, 3 pages D Letter to and SBST, w/fax transmission, 8/17/12, 2 pages E Letter to and SBST, 6/22/12, 2 pages F Letter to , 6/15/12, 4 pages G Email to , dated 5/9/12, 5/10/12, 1 page H Letter to SBST w/fax, 3/21/12, transmission, 3 pages I Email from 1 page J Emails with , 1/4/12 – 1/5/12; 12/5/11, 2 pages K Letter to w/fax transmission report, 11/29/11, 2 pages L Neuropsychological Evaluation, 9/2011 – 10/20/11, 28 pages M June Decision Letter, 6/14/12, 1 page N Report to Kindergarten Families, 9/2011 – 6/2012, 4 pages O 5/2012, Phonics Strand Alphabet Recognition, 5/2012, 3 pages P Assessment for Independent Reading Levels, 5/15/12, 2 pages Q Academic Intervention Services Progress Report, 2011-2012 3 pages, R Phonics Strand Alphabet Recognition, 1/12, 2 pages S Phonics Strand Alphabet Recognition Sight Words, 2 pages, 9/2011 T School Class Schedule, undated, 1 page U School Elementary School Overview & Academic Program Overview, undated, 4 pages V Affidavit of , 1/8/13, 1 page W School Enrollment Contract, 2 pages X 2012-2013 School Attendance Records, 1 page Y Proof of Payment, misc. 4 pages Z Letter from , PhD, 9/18/12, 1 page AA Letter from M.D. and Request for Medical Accommodations,

9/12/12, 2 pages BB Emails re Transportation, misc., 3 pages CC HIPAA Release Form, 11/6/12, 1 page DD Corrected Impartial Hearing Request, 3/20/13, 9 pages EE Excerpt from NYC DOE Standard Operating Procedure Manual,

2/2009, 5 pages FF IEP Progress Report, undated, 8 pages GG IEP dated 8/16/11, 10 pages HH IEP dated 7/11/11, 7 pages II IEP dated 6/22/11, 12 pages JJ Subpoena, dated 4/4/13, 2 pages KK Subpoena, dated 4/4/13, 2 pages LL Schedule, 2011-2012, 2 pages MM Social History, 3/16/2011, 3 pages NN Neurologic Evaluation Summary, dated 3/5/12, 1 page OO Email to , dated 6/21/12, 1 page PP Email to dated 6/15/12, 1 page QQ Email to dated 6/1/12, 3 pages RR Emails to , 5/31/12, 1 page SS Email to , 4/22/12, 1 page TT Email to , 2/29/12, 3/7/12, 1 page UU Email to , different dates, 1 page VV Email to , dated 2/17/12, 1 page WW Email to , dated 1/18/12, 1 page XX Email to , 1 page YY Email to , 12/5/11, 1 page ZZ Email from , dated 12/1/11, 1 page AAA Email, dated 11/29/11, 1 page BBB Letter to School-Based Support Team, dated 11/29/11, 1 page CCC Email to , 11/17, 1 page DDD Email to 11/15/11, 1 page EEE Email to , dated 11/14/11, 1 page FFF Email to , dated 11/9/11, 1 page GGG Email from , 10/25/11, 1 page HHH Email to , 10/23/11, 1 page III Email to , dated 10/23/11, 1 page JJJ Email to , 10/15/11, 10/19, 3 pages KKK Email to , 10/15/11, 2 pages LLL Email to dated 9/18/12, 1 page MMM Correspondence , misc., 9 pages NNN Notice to Parent, 9/11, 2 pages OOO Notice to Parent and Progress Report, 10/13/11, 2 pages PPP Report Cards and Comments, 3/12, 4 pages QQQ Reading Evaluation, 5/15/12, 2 pages RRR , Evaluation Update, 4/11/13, 13 pages SSS . Evaluation, 9/13/12, 5 pages TTT Evaluation, 9/2012, 4 pages UUU Evaluation, 8/2/2011 4 pages VVV Evaluation, 6/6/2011, 4 pages WWW Evaluation, 5/15/11, 3 pages XXX Initial Education Evaluation, 3/16/2011, 5 pages YYY Social History, 3/16/11, 3 pages ZZZ , 3/2011, 6 pages JJJJ Reading and Oral Expression Strand, 2/8/12, 1 page KKKK Phonics Strand, 1/2012, 2 pages LLLL Spelling Sheet, undated, 1 page MMMM NYC ECLAS-2 Record of Child’s Progress, 2/12, 1 NNNN Curriculum Overview, undated, 4 pages OOOO Excerpt from “ ”, 12/2012, 2 pages PPPP Student Progress Report, 5/18/12, 2 pages QQQQ Misc Assessments, misc., 16 pages RRRR K-202, AIS Referral, undated, 1 page SSSS Site Word Assignment Report, undated, 1 page

DEPARTMENT OF EDUCATION

1 Withdrawn 2 Due Process Response dated 12/21/12, 4 pages 3 IEP dated May 29, 2012, 11 pages 4 Evaluation, 4/8/12, 14 pages 5 Classroom Observation, 5/29/12, 2 pages 6 Report, 5/24/12, 1 page, 7 . Evaluation, 5/18/12, 3 pages, 8 Evaluation, 5/25/12, 2 pages 9 Final Notice of Recommendation, 6/14/12, 1 page 10 Progress Notes and Report Card, 4 pages 11 Application for Admission to ill, 10/17/11, 4 pages

Footnotes

[1] I note that the contract, attendance records, and proof of payment are in the record as Exhibits W, X, and Y. However, the parents should submit the proof to the Department of Education, independently of the Impartial Hearing Documents.