Impartial Hearing Decision

Hearing Officer’s Final Order and Determination 1 Case No. XXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXX SCHOOL DISTRICT

X In Matter e Impartial Hearing Of o/b/o

And Case No. XXXXXXXX

The XXXXXXXXXXXXXXXXX School District. X

FINAL ORDER AND DECISION

Student’s Name: XXXXXXXXXXX

Date of Birth:

District: XXXXXXXXXXX

Hearing Requested: Parent

Date(s) of Hearing: April 1, 2013

April 22, 2013

Record Close Date: July 24, 2013 Hearing Officer’s Final Order and Determination 2 Case No. XXXXXXXX

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

XXXXXXXXXXX, ESQ., Attorney — District

XXXXXXXXXX, ESQ., Attorney — District

XXXXXXXXXXXXX, Director of Special Education — District

Student’s — Parents

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 22, 2013

XXXXXXXXXX, ESQ., Attorney — District

XXXXXXXXXX, ESQ., Attorney — District

XXXXXXXXXX, Director of Special Education — District

XXXXXXXXXX, Special Education Department — District

XXXXXXXXXX, Special Education Teacher — District

XXXXXXXXXX, Special Education Teacher — District

XXXXXXXXXX, Teaching Assistant — District

Student’s — Parents

Service Clinician — Student

Hearing Officer’s Final Order and Determination 3 — Student

On February 1, 2013, I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f)(3), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education, concerning a dispute of a student (“student” or ) seeking an appropriate education placement from the XXXXXXXXXX School District (“District”) for the 2012-2013 and 2013-2014 school years.

I. BACKGROUND

. is a student diagnosed with XXXXXXXXXX. He has received special education services from the school district for many years. He is described as having limited communication skills, requires frequent prompting, and shows little evidence of spontaneous ability beyond making immediate needs known. See Tr. 44-45; D-9; D-4 (x)

and (xii).

On May 22, 2012, the CSE convened to develop an IEP for ’s 2012-2013 school year. The CSE recommended be placed in an 8:1+1 self-contained class over a twelve-month school year. See D-8. Thereafter and at the request of ’s parent, the school district placed . in a 12:1:1 self-contained class for one period daily to determine whether a less restrictive program would be appropriate for the student. The district eventually determined the less restrictive placement was too advanced and ceased the trial. Hearing Officer’s Final Order and Determination 4 Case No. XXXXXXXX

On January 16, 2013, the CSE reconvened to recommend a placement for ’s

2013-2014 school year. See D-10. A similar program and placement recommendation was offered. Id.

This case was initiated as a result of a demand for due process (“Demand,” see

IHO-I) filed by the student’s Parent on or about January 28, 2013, and identified as Case No. XXXXXX. XXXXXXXXXX, Esq., appeared on behalf of the District.

In her demand for due process 1, the parent raised the following issues to be decided at hearing, including:

1) The District’s Committee on Special Education (“CSE”) recommended a program that was too restrictive for , specifically offering an 8:1+2 2 instead of a 12:1+1, both for the 2012-2013 and 2013-2014 school years;

2) The District failed to consider placing . in a XXXXXXXXXX program for the 2013-2014 school year;

3) That by way of relief, the parent seeks to have . placed in a

XXXXXXXXXX program, as well as a 12:1+1 program with the support of

1:1 aide.

See IHO-I; Tr.16-18.

A telephonic prehearing conference was attempted on March 8, 2013, but had to be discontinued due to ensure all the parties to the hearing could hear one another. An in-person prehearing conference was held at the District offices on April 1, 2013. The parties presented their evidence and testimony on April 22, 2013. Post-hearing brief from the District was received on or about May 21, 2013. The parent offered a closing letter on

Eight students, one teacher, and two aides. Hearing Officer’s Final Order and Determination 5 Case No. XXXXXXXX or about June 20, 2013. A full list of hearing participants precedes this decision; a list of exhibits accepted into the record follows 3.

II. STANDARD

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. Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). The Second Circuit stressed that “courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision[.]” R.E. v New York City Dept. of Educ., 694 F.3d 167, 195 (2d Cir 2012).

The IDEA directs that my decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 415(f)(3)(i). The

"IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Id., 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). A school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" Walczak, 142 F.3d at 130. The IEP must be "reasonably calculated to provide some 'meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

3 References to the transcript are preceded by a “Tr.” Followed by the page number. District exhibits are denoted by the prefix “D-” and parent exhibits are denoted by the prefix “P-”. Hearing Officer’s Final Order and Determination 6 Case No. XXXXXXXX 1997). The student's recommended program must also be provided in the least restrictive environment (“LRE”). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Gagliardo v. Arlington Cent. Sch.

Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132.

Not all procedural errors invalidate an IEP under the IDEA. See Grim v.

Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

Here, the DOE had both the burden of proof and production on Prong I, or the appropriateness of the IEP. Should the DOE fail to meet its burden, it may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim Florence County Sch. Dist. v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA.

471 U.S. at 370-71. "Reimbursement merely requires [a district] to belatedly pay Hearing Officer’s Final Order and Determination 7 Case No. XXXXXXXX expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148.

A private school placement must be "proper under the Act." Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This has been interpreted to mean that the private school must have offered an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 and 115 (2d Cir. 2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000). Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" Frank G., 459 F.3d at 364.

III. ’S 2012-2013 and 2013-2014 IEPS

FAPE, at its most basic level, stands for the idea that a child’s individual needs are accounted for when constructing a special education program. The program addresses the child, not the child’s classification or diagnosis. To perform this task, stakeholders – here members of the CSE – must identify the abilities (and deficits) of the child (present levels of performance and needs).

The statue requires this basic floor. The IDEA, among other things, ensures that students with disabilities have available to them a Free Appropriate Public Education, or Hearing Officer’s Final Order and Determination 8 Case No. XXXXXXXX

FAPE. 20 U.S.C. § 1400(d)(1)(A); see also Schaffer v. Weast, 126 S. Ct. 528, 531 (2005). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d); see also 20 U.S.C. § 1414(d); 34 C.F.R. § 300.320.

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176, at 206-07 (1982).

The initial inquiry as to whether the DOE offered a student FAPE begins with an IEP that accurately reflects a student’s present levels of performance and his or her needs. 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i). Based on this information, the IEP must include annual goals related to those needs. 34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii). Finally, the IEP must provide for the use of appropriate special education services to address the student’s needs and implement the recommended goals. 34 C.F.R.

§ 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v). Thereafter, the IEP must be implemented. 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

The 2012-2013 IEP at issue was developed by the CSE on May 22, 2012. See D-8 at 1. The parent did not challenge the composition of the CSE, nor the present levels or performance, needs, or goals and short-term objectives. The CSE recommended for .

an 8:1+1 classroom with related services consisting of small group (5:1)

therapy three times weekly for forty-two minutes a session. D-8.

Additionally, was recommended an ongoing aide and a positive reinforcement plan for program support, as well as an therapy consultation teacher support in Hearing Officer’s Final Order and Determination 9 Case No. XXXXXXXX the area of fine motor control. D-8 at 10. Indications of the parent’s concerns, or lack thereof, are reflected on pages five and six of the IEP. Twelve-month programming was recommended. D-8 at 11.

A similar recommendation was made for for the 2013-2014 school year on January 16, 2013. See D-10. I note the parent’s concerns are reflected on page of the 2013-2014 IEP, specifically the request for a self-contained 12:1 program. See D-10 at 2.

AAAAAA is a special education teacher at the school district. She has a master’s degree in education and I certified by New York State as K-12 special education teacher.

Ms. AAAAAA is ’s current teacher, and has been so for the past five years. See Tr.

43-44.

Ms. AAAAAA described her classroom as highly structured wherein the students receive instruction in blocks of time spanning many periods. The students do not change classrooms by period except to attend specials or related services. Tr. 46-47. There are five students, one teacher, and one aid in the classroom. Tr. 48; see also D-8 and D-9.

Each student has different, individual goals and instruction is differentiated for each student for reading and mathematics. Tr. 47, 48. Class-wide, the students work on life skills, including but not limited to hygiene, cooking, laundry, cleaning skills. Tr. 47-48.

Ms. AAAAAA testified that . has and is very limited in his communication abilities. She testified as having “a lot of staple skills,” or exhibiting relative strengths in decoding, for example, but having great difficulty in comprehending what he is reading. Tr. 44-45. By way of language skills, . exhibits spontaneous language in highly structured settings, but requires prompting outside of his immediate Hearing Officer’s Final Order and Determination 10 Case No. XXXXXXXX needs. Tr. 45. Ms. AAAAAA testified that is capable of independently navigating the school building, but has difficulties transitioning from task to task. Tr. 46.

Ms. AAAAAA testified that it was her opinion that was making progress and benefited from instruction in her class. She further testified that it was her opinion that continued to be appropriately placed in an 8:1+1 classroom, and that a less restrictive class, such as a 12:1:1, would be inappropriate for the student. Tr. 49-50.

I find Ms. AAAAAA to be a credible witness and accept her testimony.

The parent sought in her demand to have placed in a less-restrictive environment. IHO-I. At the beginning of the 2012-2013 school year, the district placed in a 12:1+1 English class as an experiment. Tr. 50-51. Ms. AAAAAA testified that did not understand what was going on in the class, that “…he was not able to keep up with how fast the content was going or even understand.” Tr. 51. She further testified that notwithstanding the academic challenges, was unable to keep pace with the increased social demands of the less restrictive environment. Id.

BBBBB, a special education teacher with the District for twenty-nine years with a permanent special education certification from New York State, testified as to her familiarity with the student during his participation in the EEEEEEE club as well as her experience with during his trial period in the 12:1:1 program at the beginning of the 2012-2013 school year. Tr. 62-63. The EEEEEEEEE club is an extracurricular organization which pairs general education students with special education students.

Ms. BBBBB testified she is the teacher in the school district’s “super senior”

12:1:1 program, a self-contained class working on reading, writing, math, life skills, and school-to-work programs. Tr. 64. Typical age range for the class includes 19 – 21 yearHearing Officer’s Final Order and Determination 11 Case No. XXXXXXXX olds. Id. She testified that everything worked on in the class gears the student to transition to working post-graduation or aging-out. Tr. 64-65. Students appropriate for the class demonstrate increased interpersonal functioning, typically showing the ability to independently function in small group collaborations and exhibiting spontaneous language. Tr. 65-66. According to Ms. BBBBB, students in her class require far less individual support and 1:1 instruction than do the students in the 8:1:1 class.

Ms. BBBBB testified that attended her 12:1:1 class, for second period, at the beginning of the 2012-2013 school year. She testified that did not benefit from the course because he was not able to keep up with the reading demands, and would tune out the other students during group lessons. Tr. 68-69.

’s aide testimony was consistent with the previous two school district witnesses. CCCCC, a teaching assistant of five years with the school district, was ’s

1:1 aide for the 2012-2013 school year in both the 8:1+1 and 12:1+1 settings. She testified that she hoped . would be successful in the 12:1+1 program, but that he was unable to keep up with the other students during his trial period. Tr. 79-80.

The IDEA requires that students with disabilities be educated to the maximum extent appropriate with students who are not disabled and that special classes, separate schooling or other removal of students with disabilities from the general educational environment may occur only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 20 U.S.C. § 1412(a)(5)(A); see 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR § 200.6(a)(1); Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993). The placement of an individual student in the LRE shall "(1) provide the Hearing Officer’s Final Order and Determination 12 Case No. XXXXXXXX special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home." 8 NYCRR §

200.1(cc); 8 NYCRR § 200.4(d)(4)(ii)(b).

I find that, based on the totality of the record, there is no support for the proposition that a less restrictive environment would be an appropriate setting for

As stated above, I find that the District has met its burden in demonstrating that the 8:1+1 program recommendation for the 2011-2012 and 2012-2013 school years was an appropriate program recommendation reasonably calculated to offer . the opportunity to reasonably benefit.

The parent argued that ’s lack of behavior issues should qualify him for placement in the 12:1+1 program. Tr. 90. I agree that the record is clear – . does not exhibit any behavior issues which interfere with his education. However, I find that ’s difficulty in following multi-step directions, his academic delays, and his communication difficulties were the CSE’s reasoning for its eventual program and placement recommendation. Moreover, his communication delays, and specifically the student’s difficulty in keeping pace with his peers during the 12:1+1 trial period, suggest that a less restrictive placement would not be appropriate for , notwithstanding the support of a 1:1 aide.

Parental participation does not require a CSE to accede to a parent’s request.

Instead, the committee must consider and weigh a parent’s desires and wishes within the framework of appropriateness. The CSE’s overarching duty is to offer the student FAPE.

The desires of a parent are but one part of that calculus. Here, the evidence shows that, as Hearing Officer’s Final Order and Determination 13 Case No. XXXXXXXX per the request of the parent, the school district attempted to implement a less restrictive environment for on a trial basis at the beginning of the 2012-2013 school year.

Further, the evidence shows that the twelve-student class was inappropriate for , and that based on this trial, remained in the more restrictive program.

’s parent raised an interesting question during her testimony, specifically whether the CSE should have made a formal recommendation to place in the 12:1+1 setting. See Tr. 87. At the outset, any change of program or placement should be made by the CSE, not unilaterally by the school district. I find no reference in the record to suggest that the CSE met to recommend the eventual trial run of the 12:1+1 setting. I also note that the remained in the program as recommended in the 2012-2013 IEP for the remainder of the school day, as well as received all the management supports contained therein. See D-8; see also Tr. 80 (Testimony of Ms. CCCCC – continued to receive the support of a 1:1 aide for the trial period).

Based on the facts presented at this hearing, I find that there was no change in placement when the school district permitted to try the 12:1+1 setting during the beginning of the 2012-2013 school year as defined in the Commissioner’s Regulations.

With no change in placement, I find the CSE was under no duty to reconvene. Had the trial been successful, the CSE would have been required to reconvene to change ’s program and placement recommendation, as well as consider modifying the student’s management needs.

Even an independent review of the 2012-2013 and 2013-2014 IEPs reveal no gross errors, procedural violations, or other anomalies calling into question the IEPs Hearing Officer’s Final Order and Determination 14 Case No. XXXXXXXX appropriateness. Moreover, I find that ’s progress reports from the 2012-2013 school year amply support the CSE’s recommendations for the subsequent school year. See D-9.

The parent sought in her demand to have placed in a ZZZZZZ program offered by the District. IHO-I. Ms. AAAAAA testified that the District had a general education ZZZZZZZ program available. Tr. 52. She further testified that such a program would be inappropriate for because his communication and social needs are too great for a non-differentiated program. In essence, the ZZZZZZZ program is a geared to a general education student, and . requires too great a level of support that could not be provided in the proposed program. Id. For example, Ms. AAAAAA testified that is able to follow one- and two-step directions, but the ZZZZZZZ program requires students to follow lengthy multi-step directions, i.e. recipes. Tr. 52.

After considering the record as a whole, I agree with the school district’s overall assessment that ’s communication needs are too great for inclusion in the ZZZZZZZ

program.

I find that the school district has met its burden in demonstrating the appropriateness of both challenged IEPs, to wit the 2012-2013 and 2013-2014 school years. I further find no support for the allegations that has been placed in a placement too restrictive for his unique, individual needs. Based on the foregoing, I find no cause to modify the challenged IEPs or change the student’s program and/or placement recommendations. Hearing Officer’s Final Order and Determination 15 Case No. XXXXXXXX

Now, therefore, it is hereby

ORDERED that the parents’ impartial hearing request is dismissed with prejudice.

Dated: August 4, 2013

____________________________

TIMOTHY M. MAHONEY, ESQ.

Impartial Hearing Officer

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.html. Hearing Officer’s Final Order and Determination 16 Case No. XXXXXXXX

DOCUMENTAION ACCEPTED INTO THE RECORD

PARENTS

A Prior Written Notice 1/16/2013 2 pg. B Progress Report 4/15/2013 6 pgs. C Due Process Complaint Notice 3/16/2013 2 pgs. D Letter from District to Parent 4/18/2013 2 pgs. E Letter from . to Long Island Offices for Special 10/7/2012 2 pgs.

Education Services F Prescription 4/18/2013 1 pg. G XXXXXXXXXXXX Associates Prescription 12/17/2010 1 pg. H Letter from . 3/23/2012 1 pg. I Verified Answer 1/10/2011 5 pgs. J SRO Decision, Appeal No. 10-130 2/2/2011 4 pgs. K Progress Report 6/21/2012 9 pgs. L Letters from to NYSED Office of Special Edu. 10/4/2011 2 pgs. M Reevaluation Consent, signed 7/15/2011 1 pg. N Notice of Intention to Seek Review undated 1 pg.

DEPARTMENT OF EDUCATION.

1 Impartial Hearing Officer Decision (IHO Kershen) 8/1/2011 10 pgs. 2 Impartial Hearing Transcript 6/22/2011 51 pgs. 3 Parent’s Exhibits from 6/22/11 hearing (A-L 4) various 20 pgs. 4 District’s Exhibits from 6/22/2011 Hearing:

(i) 3/3/11 Decision from IHO Kandilakis

(ii) 2011-2012 IEP

(iii) 5/16/2011 Letter from Dr. to .

(iv) Parent’s Due Process Complaint

(v) 5/25/2011 Letter from to . Regarding

Response to Due Process Complaint

(vi) 5/27/2011 Letter from to Regarding

Resolution Session

(vii) 6/9/2011 Letter from to Regarding

District’s Attempt to Mediate ’s Due Process

Complaint

4 Includes (A) prescription [resubmitted in the instant hearing as P-F], (B) Letter [resubmitted in the instant hearing as P-G], (C) 12/22/2010 letter from Dr. recommending a 12:1:1 placement, (D) Verified Answer [resubmitted in the instant hearing as P-I], (E) Unsigned Parent Consent for Evaluation [resubmitted in the instant hearing, albeit signed, as P-M], (F) 12:1:1 Class Profile, (G) SRO Decision 11052 Dismissing Parent’s Appeal on procedural grounds, (H) SRO Decision 11-130 [resubmitted in the instant hearing as P-J], (I) First Page of 2005-2006 IEP, (J) 2006 Summer School Progress Report, (K) 2008-2009 Review, and (L) Evaluation Annual Review by Hearing Officer’s Final Order and Determination 17 Case No. XXXXXXXX

(viii) 2010-2011 IEP

(ix) Level I Development Assessment

(x) Confidential Report

(xi) 2008-2009 Annual Review

(xii) 2009-2010 Summary

(xiii) 5/5/10 Educational Summary

(xiv) 11/10/10 Educational Summary

(xv) 2/17/2011 Progress Report for IEP Goals & Objectives

(xvi) Class Profile(s)

5 Hearing Officer Kershen’s Exhibits from 6/22/2011 Impartial Hearing

(i) 6/2/2011 Appointment Letter to Parties

(ii) 7/14/2011 Letter to Parties

6 Information Regarding Available Programs 7 S.R.O. Decision – 6/16/2011 (Case No. 11-052)

8 2012-2013 IEP

9 2012-2013 Progress Report

10 2013-2014 IEP

IMPARTIAL HEARING OFFICER

I Impartial Hearing Demand 1/28/2013 2 pgs. II Appointment Letter 1/28/2013 1 pg. III Letter to Parties 2/4/2013 4 pgs. IV Scheduling Notice 3/26/2013 1 pg. V Letter to Parties and Scheduling Notice 4/2/2013 7 pgs.

1 Typically, the scope of issues to be determined at hearing are limited to those articulated in a party’s impartial hearing request or demand unless the other party agrees or the original due process complaint is amended prior to the impartial hearing per permission given by the hearing officer at least five days prior to the impartial hearing. 20 U.S.C. § 1415(f)(3)(B); 20 U.S.C. § 41415(c)(2)(E)(i)(II); 34 CFR 300.508(d)(3), 300.511(d); 8 NYCRR 200.5(j)(1)(ii); 8 NYCRR 200.5(i)(7)(b); M.H. v. New York City Dept. of Educ., 685 F.3d 217 (2d Cir. 2012). Here, the District consented to an expansion of issues to be determined at hearing to include the 2013-2014 school year. See Tr. 17.