Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: January 29, 2013

March 21, 2013

March 28, 2013

Actual Record Closed Date: April 19, 2013

Hearing Officer: Sharyn Finkelstein, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 29, 2013

FOR THE STUDENT

Attorney

Parent

FOR THE DEPARTMENT

District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2013

FOR THE STUDENT

Attorney

Parent (via telephone) Student

FOR THE DEPARTMENT

Attorney (via telephone) Counselor (via telephone) Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 28, 2013

FOR THE STUDENT

Attorney

Parent (via telephone) Clinician (via telephone) Family Court

Attorney (via telephone) Admissions

Coordinator

FOR THE DEPARTMENT

Special Education

Achievement Coach (via telephone) CSE Chairperson Farms (via telephone) School Psychologist

Farms

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), on January 18, 2013, concerning the special education of ”). for the 2012-2013 school year. The parent by means of their attorney requested a pendency hearing which was held on January 29. At that time had been remanded to a awaiting a disposition and sentencing. (Tr. 223) I issued a pendency order and found ”) to be the last agreed upon placement.^[1] (Exhibit IHO I) The parents were represented by their attorney Mr. . The District was represented by their representative Ms. Both parties agreed to waive the remaining period of the resolution session and upon being informed, I immediately scheduled a pre hearing conference which took place on February 11, 2013. Parent's attorney stated that had no place to go because the Judge would not release him back to . This would not have changed my pendency decision, however, I would have considered an interim order under these circumstances. We adjourned for one day for Parent's attorney to bring something in writing confirming that the Judge would not release him to . We held the second pre hearing on February 12, 2013 and Mr. had been unable to produce anything from the Judge. The matter was adjourned for March 21, 2013 at which time both parties were supposed to present their case. The hearing had to be adjourned at three because Mr. was required to appear in Federal Court. The parties requested an extension of the time line which was granted and we adjourned until March 28, 2013. Both parties presented their witnesses on the final day of hearing. At the time of the last day of hearing the transcripts of the prior hearing had not yet been received. The District requested an opportunity to submit a written closing statement without objection from the parent. The parties requested an additional extension for receipt of transcripts, closing statements and the writing of the decision. I received the closing statements from both parties on April 19, 2013 and the record was closed.

The parties moved to extend the compliance date on various occasions in light of anticipated, testimony, availability of witnesses and for the submission and consideration of closing statements. 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 in this matter. 2 Accordingly, the joint request for extension of the compliance dates were granted.

A list of persons in attendance and exhibits entered into evidence are attached.

BACKGROUND

year old student classified as ”) This is not in dispute. (Tr. 4) A CSE review was held on November 9, 2012 which resulted in the recommendation of a 24 hour residential placement. (Exhibit I) The case was deferred to CBST who referred the parent to several New York State approved schools. The parent agreed with the program recommendation. On January 2, 2013 the Department proposed which is a New York State approved school. The parent had requested which is an out of state residential program located in . Ms. aunt and adoptive parent (“parent”) agreed to place the student at and signed a Final Notice of Recommendation. (“FNR”) (Exhibit 3) entered the program on January 4 and on January 11th while at the probation office in New York he ran away.(Tr. 68) He returned home after a couple of days and was incarcerated. Berkshire Farms is ready to take back but he is not willing to return and remains at Crossroads.

The parent brought this hearing in order to obtain a P-1 form or Nickerson letter that would allow her to place or to obtain direct tuition funding or to amend s IEP to reflect .

DISTRICT'S POSITION

The District maintains that the only issue is whether is capable of implementing the IEP. They argue that the parent did not challenge the substantive or procedural validity of 's IEP. They maintain that is an appropriate placement, that could and still can implement 's IEP, and that they are willing to take him back upon his release. They further argue that is not appropriate either substantively or procedurally. They argue that a Nickerson letter is not appropriate in this matter. It is their position that any request for

There was testimony that they were willing to accept him back upon his release. a transfer to should be denied in its entirety.

MS. is employed at and specializes in school psychology working with youth. (Tr. 57) was assigned to her caseload. (Tr. 58) She provided in the cottage and worked with him to adjust to the program. This counseling was in addition to what he would receive in school. (Tr. 69) Initially was homesick but then he was socializing with other students and participating in programs. She described him as “adjusting to the program” (Tr. 62) She took him to the city for his initial probation appointment. (Tr. 62) When they were at the waiting room in the probation office, got up and left after about forty five minutes. (Tr. 64) She notified the probation office and the school. The parent arrived in person and they worked together to find him. (Tr. 66)

On cross examination she explained that they have a board-certified licensed psychologist on staff who works with (Tr. 73) They had not developed the behavior intervention plan during the one week. They have a thirty day assessment period.(Tr. 77)

She saw three times on an individual basis during the week he had attended. She also observed him with other students and saw him in the dining hall to make sure he was adjusting. (Tr. 107) During one session he spoke about a boy he did not like. He was upset that there were no girls in the program.(Tr. 78)

There are ten boys in his cottage. There are about thirty five CSE students in three cottages. There are about eight other cottages which are separate from the CSE population in a separate school, different floor, and separate from CSE during meals and recreation. (Tr. 80)

There are locks on the doors of the cottage and cameras. There is a consistent 24 hour surveillance reviewed by the cottage manager. (Tr. 82) The ratio in the cottage of student to adult is

She was unaware that the school had been declared as persistently dangerous.

Mr. , a youth counselor, accompanied her when she took to family court in January 11th. He had a relationship with did not want to return but did not explain his reason. (Tr. 89)

2 was receiving services and could have returned to upon his release.

They are located in a rural setting and she explained that there is really no way for a student to leave and be successful. She did not know of any other student but that did not return. (Tr. 91) His parent told her it was her intention to bring him back to (Tr. 102) (Tr. 100)

MS. is a special education teacher and science teacher at was in her science class She described him as typical of the student at the school. She would have been able to implement the instructional component of his IEP (Tr. 147) She would have expected him to progress towards meeting his IEP goals. (Tr. 147) The class ratio is

She was unaware of being approached about or of students She described may of the children as . They become loud and have . They can ask for a break, take a walk, and speak with clinicians had the option to take a break or take a short walk to regain compose or speak with the school psychologist.

She has implement behavior intervention plans for students. The school has strategies to deal with challenging behaviors including re-direction. She described what would happen if a student shares information about a potentially dangerous or illegal situation and how everyone is involved. There are behavior aides who are supposed to be at the bathroom door and limit the number of students in the bathroom. There are two aides assigned to teach class for lunch and if there is a fight, the children are separated by the staff and taken to a separate location. They carry radio systems in the school to communicate back and forth with each other.

She saw s IEP and would be prepared to implement it if transitions with the same group of student in all his subjects and has different teachers. Most of the students that she works with are classified as .

She was aware that in the past had been designates as a persistently dangerous school but not currently. She had no awareness about students . She described the students and explained is like the other students. He requires a break, or a short walk, or speaking with the . She explained that they usually allow an adjustment period before creating a BIP or FBA.

The students are grouped in a chronological range and grade level. (Tr. 183) There are no more than ten students in the class with herself and two assistants. (Tr. 184) The class is broken down into smaller groups in order to give the students one to one attention and address the different reading abilities. (Tr. 188) There is a lot of one to one small group instruction. The eight students in 's class can be broken down into groups. Either she or a peer who is capable of the work is always working with the student. (Tr. 190) She saw for three periods during his stay. (Tr. 191) He expressed frustration with the work and she thought there would have been more one on one with him until he was comfortable working in a small group. Computers would have been available if it was required. There are computers in all the classrooms. is in the Living Environment group which is a small group within the class. She estimated that there were four students in that group. The class does range from a grade two level to a grade twelve level but most of the students fall within the median in the middle. She explained to me that she is able to teach science even though the students are on a different reading level. They use guided reading and she reiterated that the group is very small and there are other staff members as well as her in the room. She provides individualized instruction to who needs it at the time. The other students are either working with a peer or independently or with another staff member. (Tr. 202-203) The homework is also broken down to where a student functions and what they can do independently

They have a hands on lab, guide notes which is supplemented with Power Point presentations and video clips. will be taking State wide examinations and he would be giving extended time in accordance with his IEP.

MR. is the CSE chair and day program coordinator at . They make sure they can meet the IEP needs of students. (T237) As the program coordinator he also works day to day with the students in the programming. He has not because his family canceled the scheduled interview on December 21 and came over Christmas break. He explained that intake department meets with students and families to make sure the student is a good match.

There was a fight in the cafeteria the next to last was there. He reviewed the tape and described it as five tenths of a second until staff member secured them. He thought the last fight was eighteen months ago and described it as rare. (Tr. 241) There are twelve staff in the cafeteria and on most days at least five or six additional staff. There are protocols and procedures in place as they relate to safety and security.

The staff would know if there was marijuana and at most this occurred several times a year. He described it as “highly unlikely” that children are smoking marijuana in the bathroom. They search their clothing bags when they return from home visit. Any smoking in the stairwell would be documented.

The CSE classes are held on the first floor in the five classrooms on the west side of the building. The students are sometimes taken to second floor for computer and would be escorted by two behavior aides (Tr. 265)

There are video cameras that record hallways and stairways but they are not in the classroom. The dining room and cottages have cameras, however, he acknowledged that the cameras not monitored.(Tr. 270)

He made the decision that would be able to implement s IEP usually a week before the tour. They receive referral information and anything that CBST sent them. The guidance counselor makes the determination about class .the particular class.

MS is New York State certified to practice as a school psychologist and is employed at . was assigned to her caseload. She was told was not being discharge and that they were willing to take him back. (Tr. 371) She met with him on two occasions for and described him as pleasant. (Tr. 387)

had not indicated any concern for . They have protocols in place for children who have and they are based on the school and residential staff to determine if a student requires additional interventions They had not done any type of behavioral analysis or yet. She had observed him in class which is the usual first step. She had informal conversations with staff who described him as polite pleasant and positive. (Tr. 393) She described assessments that are done and the purpose of the initial assessment to inform teachers of the student's skills and deficits.

She opined that the staff would have been able to implement the IEP. (Tr. 420) based on their residential component and small staffing. They are able to provide counseling. He was receiving with her and also with Ms. at the residential site. He was receiving instruction in a low student to teacher ratio with opportunities for small group and individualized attention.

She opined that would have been able to make meaningful progress because of the structure, the services, and counseling, both . (Tr. 401) Crisis management counseling is also available.

She spoke with in order to get family background information. She tested him for one hour and administered a STAR assessment and observed him in class. (Tr. 407) She explained that in the counseling session she asked how he was feeling and he expressed that he was happy. She described it as a structured therapeutic environment. She described the students as typically not aggressive and not displaying any physical aggression. (Tr. 423)

class have a staffing ratio of . The instructional levels that they used for were his achievement an intelligence testing that was listed in his IEP (Tr. 428) The purpose of the Stanford 10 and the STAR assessments are to measure progress for students who have been in the program nine or twelve months. She explained that the primary goal is grade level and age, however, if a student ends up being alarmingly low or high they will consider that with classroom placement. (Tr. 434) She explained that the classes are geared toward preparing students for Regents Assessments. The lab classes are more skill building. This supplements what is in the IEP. (Tr. 438) She provides push in support in the classroom and can assess if a student requires any academic or behavioral assistance. If so she works individually with the student. (Tr. 441)

In response to my question, she explained that typically the teacher does an opening lesson that applies to everyone and then the students breaks down into groups. They are given tests based on their content. (Tr. 446)

She was aware that the school is in the process of trying to remove itself from persistently dangerous list. (459)

PARENT'S CASE

The parent maintains that the Department failed to offer a FAPE to for the 2012-13 school year. It is their position is appropriate and is the least restrictive environment for . They point out that the parent has always cooperated. In summary it is their position that should be immediately and funding awarded.

testified that he had been attending prior to his being remanded to Crossroads . He attended for six days. He testified that students were offering him marijuana. He testified that he had safety concerns and personally witnessed fights. He explained that Ms. kept asking him the same questions over and over again and he ran away. (Tr. 120) He has been in since January 15th at Crossroads.

He had visited and liked it because there were cameras everywhere. He explained that “it feels like a safe place to me.” they know how to control people by talking and calming them down. He saw the program prior to be accepted at They showed him the computer room he saw students in the movie theater. He walk past the residence and he described it as nice. He saw three classrooms and the students were calm and sitting down and doing work. He saw kids having fun in the game room and there was no game room or movie theater at . When he toured the school they told him it was a nice program and more secure because there are cameras. (Tr. 109-131)

MS. has been s parent and guardian for the . (Tr. 344) He had started at which is a New York City and now he is in . The team had tried to put him in general education and she requested a change to residential (Tr. 346) In response the SE met in November 2012 and recommended a residential placement. She received a letter from Central Based support team with a list of schools.

She visited . (Tr. 348) was not on the list. She visited in December and expressed interest in going there. (Tr.50) She spoke to Ms. from the admissions department and they toured the school during Christmas break. She had already visited Hawthorne. She called CBST and accepted . (Tr. 353) She signed paper at Teacher's Prep and a psychologist gave final notice of placement recommendation. She was never informed that the school was designated as a persistently dangerous school (Tr. 355)

began attending on January 4. She spoke with him every other day. (Tr. 356) He said a student (Tr. 356) He refused to go back and .

She described her impression of . They have an exercise room, there were children working, and she described it like being home.

She was told there was a list of 16 schools. She visited but did not approve of the “baggy pants” the students wore. She did not have an opportunity to visit Leaks & Watts. She explained to me that would have accepted him had she agreed. (Tr. 376)

MR. is employed as a clinician with is an approved school by New York State Education Department to provide residence services. There are approximately 230 students including about five or six day students. They serve one population and concurrent . The other groups are those classified with emotional disturbance through

IDEA. (Tr. 467) They accompany students to the probation hearings to ensure their safety.

They service students with suffer from substance abuse and offer various forms of counseling. They use behavioral contracting or positive reinforcement with the students. They have a live constant digital video camera monitoring areas and a digital video department that is staffed 24 hours a day every day in the residence as well. They have trained staff and dogs to as needed. They have an admissions committee who reviewed 's IEPs materials.

would have been in classroom E with a staffing ratio of This is decided by the education staff who review the student's materials. He opined that could have provided with an appropriate educational program. They use a motivational approach to address behavior. They have “behavioral contracts” which are very specific to the student and very consistent. They have an open door policy with the family. He opined that fit both the behavioral and clinical profile and would have made progress. (Tr. 487)

MS. is one of the admissions coordinators 's parent had contacted her in October and toured the school in November. was not with his parent and she could not recall meeting him. They had a number of his IEPs, report cards, transcripts, evaluations and social history update and used these documents in determining if he should be accepted. (Tr. 529-535)

FINDINGINGS OF FACT AND CONCLUSIONS OF LAW

A Nickerson letter is a letter from the district authorizing a parent to place a student in a state approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, No. 79 Civ. 270 (E.D.N.Y. Jan. 5, 1982), 553 IDELR 298. The remedy of a Nickerson letter is intended to address the situation in which a student has not been evaluated or placed in a timely manner. Application of the Dept. of Educt., Appeal No. 09-114; Application of a Student with a Disability, Appeal No. 08-020; A.T. v. New York State Educ. Dept, No. 99 CV 4166, 1998 WL 765371 at *1 n. 2{E.D.N.Y. Aug. 4, 1998) (citing Jose.P. v. Ambach, 669 F. 2nd 865 (2d Cir. 1982).

There has been no allegation that the Department did not evaluate or place in a timely manner for the 2012-13 school year. I find that a Nickerson letter is not appropriate in this matter.

It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the services are appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).

One of the main purposes of the Individuals with Disabilities Education Act IDEA (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an 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 special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Part 200.4 of the Regulations of the Commissioner of Education requires that parents be offered the opportunity to participate and simply having Parents present at a CSE meeting is not outright compliance with the Parents' rights under the IDEA and Regulations of the Commissioner of Education.

The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5]' 34 C.F.R. §300.550[b]; 8 NYCRR 200.6[a][1]).”

In this case there have been no evidence presented that the IEP or program recommendation was not appropriate. In fact, as set forth in the due process complaint (Exhibit A) it was in response to the parent's request for a structured residential placement, that the CSE reconvened and held another IEP review meeting on November 9, 2012. They recommended a twelve month placement at a New York State approved non-public residential school and deferred to CBST for finding an appropriate placement.

A party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other other party agrees or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer or at least five days prior to the impartial hearing. 20 U.S.C. § 1415[f][3][B]; 34 C.F,R. §§ 300.507[d][3][i],300.511[d]; 8 NYCRR 200.5 [j][1][ii].

The only issue with respect to FAPE and prong one has to do with the placement. In this case was placed at Berkshire Farms. It is important to note that the parent signed the Final Notice of Recommendation. This is not a situation where the parent disagreed with the placement. (Tr. 223) It is true that the parent may have had a preference for but that is not relevant. There is no evidence that the parent set forth any objections to . Parent's attorney emphasized throughout the hearing is on the persistently dangerous school list and the lack of proper procedures in informing the parent. The parent claims that had she known about this, she would not have sent her son to that school. Firstly, the school is on the New York State Approved list so I conclude that being on the list, does not in and of itself make the school inappropriate. In addition there was much testimony about all the different forms of security and methods in place in case of any problems. There was also testimony that the school is in the process of having it removed from the list. In spite of attorney's attempt to portray the school as unsafe there really has been no evidence to back this up. Parent's attorney raises the issue of having been able to run away. However, it must be noted that he did not run away from the grounds but ran away when he was at the probation office. There was testimony about the lack of incidences of students actually being able to run away. Parent argues that refuses to go back because of . However, when I questioned about why he , he responded that he did not want to answer the same questions over and over that he was asked while waiting for the .

Parent's attorney repeatedly raised what he deemed as procedural errors made by the Department, throughout the hearing and in his closing arguments. There was no meeting to determine was appropriate and the parent was not provided with transfer options. None of these issues were raised in the due process complaint. I find that these arguments cannot now be considered.

The Department has the burden to show that could implement the IEP. There was testimony from 's science teacher that she could implement the IEP as written. There was testimony about the counseling that would have been available for . There was testimony about the different strategies that are used to manage academic deficits. There was testimony about 's specific IEP and how they could provide him with supports. There was testimony about opportunities for small group instruction as well as individual instruction. There was testimony about strategies in place to deal with issues of behavior.

One of the issues that was not raised in the Due Process Complaint which came up at the hearing was grade range for functional grouping in his class. There was testimony explaining how the class is divided into small groups and the staff available to provide individual attention.

Every witness testified that they would be able to implement 's IEP . I find that there has been no evidence to the contrary. had only been in the setting for less than a week. I find that had he remained they would have been able to implement his IEP. There was testimony that they would have created a however, it was too early to make proper assessments. It was also too early to give the any type of opportunity to help . In addition, I find that any student may have difficulty at first adjusting to any new type of environment.

The District argues that the parent would not be entitled to the relief sought because is and therefore ineligible for placement at any residential placement. I disagree with this conclusion. had been released in the first instance while his case was pending. I have no reason to conclude that the Judge would not release him again into a residential setting. On the other hand, the parent attempts to argue at the hearing, as he did during pendency proceedings, that the Judge would not release him to . is an attorney who has been assigned to represent since September or October 2012 with respect to his arrest for robbery of a cellphone.) He stated that the court is not going to send back to yet when I questioned him he stated that he is not the one who makes that decision. (TR. 227) He had nothing in writing from the Judge to confirm his opinion and he acknowledged that who will make this decision. He has not dealt directly with . (Tr. 234) I find that his testimony cannot be given any weight.

I find that s able to implement 's IEP. I find that the District has met their burden under prong one. However, I do find that honestly has now convinced himself that he cannot and will not go back . I do not find this to be a reflection on the appropriateness , but more as a result of perhaps an unfortunate encounter with other students that could happen at any placement. I find that to send him back now would be counterproductive and could result in negative consequences. described what he like about is no different from any teenager who would want to be in a school where they show him a game room and a movie theater. I do believe that really wants to go to , however, I do not find grounds for to be able to choose where he wants to attend.

Initially the parent was unhappy with the CSE recommendation and she advised them of her concern and they changed the recommendation. In the same way, the Department is entitled to address her present concerns. The parent acknowledged that she had not yet visited all the schools that she had been given at the time. The appropriateness must be determined by what was known at the time of the recommendation and not based on what happened after a week. I want to be clear that I find that is no longer appropriate, not because the Department failed to meet their burden, but because has convinced himself that he cannot return.

Parent's attorney argues that the District has an “affirmative dirty” to address the Student's noncompliance and recommend an alternative program. He argues that the District had ample opportunity to verify the Court's position on 's return to Farm. Given the fact, that parent's attorney was unable to confirm the Court's position, I find it is unreasonable to expect the District to confirm parent's position. There is no evidence that the Judge would not have sent back

For purposes of having a complete record I will address the appropriateness of . I note that does use aversives on some students they are not used on New York students and it is an approved New York State approved school. As with in , I defer to New York State and find this in and of itself does not deem the school inappropriate. There was testimony from two witnesses who spoke about the school in general. Neither witness had met and the testimony consisted of generalities and not specifics about . The one specific that was raised was the particular class would have been in had he attended. There would have been ten students in the class. Parent's attorney points out that this is the least restrictive environment. However, the ratio and least restrictive appropriate environment is not something for the school to determine. The school must show that it is able to implement the IEP as written. The IEP mandates a staffing ratio of 8:1:2 (Exhibit 1.8) I find that the student to staff ratio is a key element in implementing an IEP. I find that based on this fact and the lack of specifics as to 's IEP, the parent has failed to establish their burden.

With respect to the equities, there is nothing that would have prevented the parent from relief. The parent is a loving mother who has always cooperated with the Department.

In summary, I find that the only issue in this hearing was to implement 's IEP. I find that the District met their burden. I find that Berkshire is no longer appropriate and the case needs to be remanded back to CSE to refer to CSBST.

ORDER

The matter shall be immediately remanded back to the Central Base Support team (“CBST”) to determine an appropriate placement. The CSE shall make any necessary arrangements to ensure that the case is immediately remanded to CBST. Dated: May 7, 2013

SHARYN FINKELSTEIN, ESQ.

Impartial Hearing Officer SF: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 January 17, 2013 4 pages

D3 Due Process response January 31, 2013 3 pages

E Social History update October 5, 2012 4 pages

F update October 26, 2012 13 pages

G ACS adjustment report January 26, 2013 2 pages

H Crossroads, JC adjustment report February 25, 2013 2 pages

I acceptance letter December 7, 2012 1 page

J Behavior Educational procedures at undated 7 pages

K distinguishing features undated 11 pages

L positive programming procedures May 2002 16 pages

M Educational progress for 's

emotionally disturbed students January 28, 2012 9 pages O Closing Statement April 19, 2013 27 pages

PARENT EXHIBIT FOR IDENTIFICATION

N State Of New York Education Department 2 pages

2012-13

Designation Based on

Incident Report

DEPARTMENT OF EDUCATION

1 IEP November 9, 2012 14 pages 2 IEP attendance page November 9, 2012 1 page

3 B and C are omitted as they are the same as District 1 and 3

3 FNR January 2, 2013 1 page

4 Closing Statement April 19, 2013 12 pages

IHO

I Pendency Decision

Footnotes

[1] is where had been attending prior to his