New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Date of Hearing: February 24, 2014

March 3, 2014

Actual Record Closed Date: March 21, 2014

Hearing Officer: Daniel Ajello, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 24,

2014

Attorney for Parent — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 3, 2014

Advocate — Student

Parent/Mother — Student

Supervisor/Curriculum, (Via Telephone) — Student

Occupational Therapist, (Via Telephone) — Student

Committee on Special Education 7 Representative — DOE

INTRODUCTION

On January 17, 2014, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).

A hearing was conducted and appearances made by the parties as indicated herein.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Parent was allowed additional time to submit financial documents into evidence. Parent submitted documents on March 11, 2014. On March 12, 2014 Department of Education (DOE) representative, , notified the IHO that the DOE had no objection to the documents being entered into the record. (IHO Ex II & III)

This matter was instituted by the impartial hearing request, Due Process Complaint (DPC) dated January 17, 2014 alleging that the Department of Education (DOE) failed to provide a procedurally valid and substantively appropriate Individual Education Program (IEP) and placement for the student, for the 2013-2014 school year. Parent alleges that this failure resulted in a denial of a Free and Appropriate Public Education (FAPE) for the student for the 2013-2014 school year. (Ex A 1)

Relief sought includes funding or reimbursement for unilateral placement at the for the 2013-2014 school year, as well as related transportation and an assessment authorization for updated evaluations. (Ex A 3)

At hearing parent withdrew her claims related to the evaluations. (T 163)

BACKGROUND

Currently the student old. Most recent IEP, of August 23, 2013, includes a classification of , recommended services including a special class with a ratio for Math , ELA, Social Studies and Health (Speech) services in a group for 2 thirty minute sessions weekly, (OT) individually for 2 thirty minute sessions weekly individually, twice weekly for a thirty minute session, a crises management para group service for half of each school day, a 12 month school year, and indicates student instructional and functional levels of pre-kindergarten for reading and math. (Ex 1-1, 1-8, 1-9 & 1-12)

THE PARENT’S POSITION

( ), advocate, presented the parent’s position at hearing, and by way of closing statement on the record.

contends that for the 2013-2014 school year student was transitioning from preschool to a school age program, having been receiving services through a CPSE

IEP. (T 144)

CSE held two IEP meetings and the IEPs developed were not appropriate to meet the student’s needs. Part time group para recommendation is insufficient to address student’s severe needs. (T 144-146)

DOE failed to perform a functional behavior assessment (FBA) and developed an insufficient BIP. (T 147)

DOE also failed to address student’s sensory needs. (T 148-149)

Final Notice of Recommendation (FNR) made by the DOE was not timely and made after the start of the 2013-2014 school year, thus resulting in a denial of FAPE. DOE failed to present any information about were the student should have been placed for the start of the 2013-2014 school year. (T 146 & 150)

Testimony from and parent indicate appropriateness of the program. (T 149150 & 153-156)

Parent acted in good faith and visited the proposed placement, attended two IEP meetings and communicated with the DOE. (T 151-153 & 156)

Parent is responsible for tuition (T 158)

PARENT WITNESS

) reviewed her educational and professional background and testified as supervisor at the . (T 19-20)

“ is a private school that employs ABA, with sensory integration and related services. They have a collaborative model towards related services….students at receive one to one related services, in addition to the related services playing an integral role in the collaboration and the development of the child’s unique curriculum. With regard to the ABA, all of our techniques are in place to manipulate antecedents and consequences to make positive behavior changes…we want to increase learning behaviors and pro social behaviors and decrease problem behaviors. And we take data every day, many times per day, to track the course…of our program. And when we see the data going up for good behaviors and down , then we know that we are on the right track. If we see something, you know stagnates or is not looking the way we want, we can make changes to the program, so that the outcomes are what we are looking for.” (T 20-21) has a Board Certified Behavior Analyst (BCBA) on staff. (T 21)

“ ’s approach is one to one. We would only accept students that we felt needed one to one instruction, based on their intake and based on their, you know parent report…” Student was previously in a larger group and “he was very unsuccessful. It seems that his rate of problem behavior was really high and that he wasn’t able to be part of a group for learning or socialization.” (T 81)

employs pathologists, occupational therapists and a counselor social worker. (T 22)

has six classes with an average of six students per class. Students are ages five through sixteen, and student have a range of disabilities, including autism. (T 22-23)

Classes have a lead teacher and an instructor for each student. The student class ratio is 7:1:7. (T 23)

Lead teachers have a Masters Degree and teaching certification and instructors hold a Bachelors Degree working towards their Masters. All teachers and instructors are trained in ABA and supervised by the BCBA. (T 24)

Student’s class has seven students, ages five through eight, are good social models for each other, and are on similar academic levels. (T 42)

The student has been attending since November of 2013. (T 23) Staff meets and collaborates regarding student programming and behavior. (T 25)

Data is taken and analyzed daily regarding the student’s behavior and learning. (T 26)

Related services are delivered to the student’s individually, with an option of having services in the classroom. Related service providers contribute to the student’s curriculum book. (T 27-28)

detailed the student schedule. (T 28, Ex E)

Student schedule includes a notation of when ABA, OT, Speech, academic curriculum, vocational curriculum , or our music program are involved. (Ex D & E)

Student receives individual OT three times weekly, as well as in a group. (T 77)

Student receives individual speech twice weekly, as well as in a group. (T 78)

Counselor is available to see the student. (T 78)

Wake up and learn includes a student deep massage, different centers, such as a sensory center, and exercise. Students rotate between groups. (T 28)

ABA is part of every session in the schedule. “So, even though it is an O.T.

group, the child’s one to one instructor is present, to follow the behavior protocol and to take behavior data should it be necessary.” (T 28-29)

During morning circle students meet as a group and have a conversation about the data and the weather. ABA means that the principles of ABA follow them throughout their day. So, any principles of reinforcement, or prompting, or any of the teaching techniques and procedures that we use are still being employed, as well as the child’s

Behavior Intervention Plan continues to be followed as data is continuing to be collected.

AC is academic curriculum, and what that means is that, for example, a student that is learning numbers one through ten, or quantitative concepts, may be asked the question now that they can do it within their one to one session…they are going to look to generalize that skill to a larger group…” (T 29-30)

Schedule areas marked “G” indicate “group learning, which means that the students are now expected to respond to one classroom teacher, as opposed to only their one to one instructor. They are learning to sit in a group and behave as part of a group.

And then would be their speech language targets and anything that is in their one to one instruction, from their speech language pathologist, can also be accessed and targeted during group session.” (T 31)

Neural Net is an OT group designed and developed to encourage multitasking, crossing midline and bilateral integration. Exercise happens to a rhythm and students respond to an auditory prompt. (T 31-32)

During student one-to-one instruction distractions are minimized and skills are taught. This includes academic curriculum as well as speech and language. Behavior analysis continues as a support. (T 32 & 61)

continued to detail aspects of the student schedule, related to facilitated socialization, mind and body, Thematic Unit Group, Direction (Direct Instruction), and palates ocular motor. Each class involves particular overlaps as indicated on the schedule of . (T 33-36)

Upon first entering the school the student was shy, a little bit non compliant and did not respond right away, at times behavior included crashing, flipping and jumping from one thing to another. (T 36)

RW has read the student’s most recent IEP. Described behaviors of aggression and hitting were seen when the student first entered the school. Student was also self directed and shied away from the group. It was difficult to engage him one-to-one. (T 36-38)

with the student. “multiple strategies that we use to set him up really for success, before placing demands on him…we can really set him up for success by using reinforcement, by pairing his work station, by using a token economy…we also proactively teach him through the use of the social thinking curriculum, what is expected behaviors look like, and what is expected for him to do, during different times of the day.

We are trying to teach him the , so that he learns to connect his behavior with the consequences and the people around him.” (T 38-39)

Student was not available for learning in the beginning of the year. “At this point, he is working through a math curriculum. He has a reading program. He is learning writing. And we have…gotten him to the point where, through teaching him what is expected, through the use and tokens and reinforcement, and through the use of a sensory strategies, we have gotten an for him to comply with demands and learn.” (T 39-40)

Student is currently functioning on a for reading and math writing. (T 45)

Regarding the DOE recommendation, RW stated that the part time para was a concern since no one would be there to address behaviors on a full time basis. continued that without the use of a and someone trained in ABA strategies, I don’t see how such a person would gain compliance and have the ability…to sustain his attention. In addition to that, I don’t think the classroom could meet his needs. He is a student who works very well with one to one instruction. With the one to one instructor…his behavior is under control and he can access his curriculum. He is not a child who can just learn in a group of 12, and in the does not believe the student could meet the IEP goals in a larger group setting.

(T 81)

Tuition for for November to June is $74,100.00, and families are expected to pay the tuition. Tuition is prorated for entrance in November. (T 43 & 79)

No portion of the school day is religious. (T 80)

School communicates with the parents through a daily communication notebook, a weekly newsletter, a monthly phone contact, and parent teacher conferences. (T 43-44)

reviewed the curriculum and materials used for academic instruction. (T 63-66)

is a 12 month program. Some students choose other summer programs. The student does need a 12 month program. Without consistency problem behaviors spike.

Student does not necessarily need to be for the summer. (T 83-84)

PARENT WITNESS

) reviewed her educational and professional background and testified as an occupational therapist at the School. (T –87-90)

Student is treated by . (T 91)

When students enter the school an assessment is usually conducted. Due to behaviors the student was unable to be tested. It was determined to provide the student with a sensory diet, so that he would be regulated. (T 91-92)

Behaviors included to him. (T 92-93)

described the student’s sensory diet. “a lot and heavy work tasks, for 20 minutes…Basically 20 minutes at the same proprioception, with a lot of heavy body work, after 20 minutes he was . We also tried to provide some vestibular input, along with the proprioceptive input, together in combination…we could provide for his vestibular needs as well, which is his need for movement.” (T 93-94)

has equipment, including gym mats, cushions, therapy balls, and a tunnel to implement the sensory diet. (T 94-95)

Student uses the sensory gym, individually, twice a day and once a day in a group. (T 95)

FF also goes into the classroom throughout the day for activities including deep pressure massage and different exercises that stimulate different sensory systems. (T 9697)

Progress in noted in that behavior has improved, and it is easier for the student to follow through on activities. (T 97)

Student has more difficulties when he does not have the sensory diet. (T 98-99)

Parents have the opportunity to take part in parent training with the OT during the year. (T 99)

reviewed the goals of the August 23, 2013 IEP. Goals are appropriate, but need more detail as to how they will be carried out. (T 100-101 & 111)

Regarding the DOE recommendation believes the student requires 1:1 instruction. (T 103)

describes the student’s sensory needs as “his primary need” and believes it should be part of the IEP. (T 112)

PARENT WITNESS

( ), the student’s mother, testified. (T 114)

noticed her child had difficulties all through school, and had him evaluated at four and a half years of age. (T 114-115).

Evaluation disclosed and then later sensory processing disorder. (T 115)

Student, at first received SEIT services from the Committee on Preschool Special Education (CPSE), for 15 hours weekly. was alter added, and later (T 115)

A meeting was held in the spring of 2013 and student was classified emotionally disturbed. (T 116)

asked for another meeting, which was held in August 2013. (T 117)

felt that a half day para was not appropriate, and was requesting a full day para. Team changed the classification to other health impaired and took away the half day para. (T 117)

was upset, contacted the CSE chairperson, and the half day para was again placed on the IEP. (T 117-118)

received the FNR in early November and went to visit the proposed placement. (T 119-120)

In September, prior to receiving the letter “I placed him in a mainstream class, at a private school that I found. They are similar They are method that they use. And I felt that that would be appropriate for him, because…they do a lot of art and different things that is sensory based. I thought it would fill his sensory based needs that he needed. It was also smaller class than I could find in other schools. It was 15 students and two teachers, in the classroom. (T 120)

It took two weeks to get a para to start, and by then the student was not able to focus and was the class. Student would engage on the floor. (T 120-121)

went to the proposed placement notes it was a clean school, room was very small with limited equipment, and she could . (T 122-123)

does not believe her child could benefit form this placement. (T 123)

It took several months to obtain bussing for the student. Parents engaged a private service to transport the student, until bussing commenced. (T 123)

identified tuition contract, signed by her and her husband. Each are responsible for payment. (T 125, Ex B)

Regarding family income the family . (T 125)

Husband is self employed and home with a baby. (T 126)

If unsuccessful in the hearing parents will be responsible for tuition payment. states that parents will take out loans and use a credit card, as well as ask for family help. (T 126)

placed her child after interviewing many different places. Parent saw that had a sensory gym that , everything is individualized, and teachers would understand her child’s needs and give him al the therapy he needs. (T 127)

has seen progress in her child since attending Student “…comes home and he's very calm, a lot calmer than he used to be, more compliance. He doesn't fight with my other children as often. And in fact, he uses a lot of words where he--to describe his feelings, more than he used to. And I haven't had any violent meltdowns with him in a long time, since he started.” (T 127-128)

School has taught the parent techniques to use when her child has sensory seeking behaviors. has a schedule for her child; to follow and he is improving. (T 128)

Tuition amount of $73,600.00 is greater than the family income. is not sure what the family income was last year. Family does qualify for Medicaid and has a mortgage. (T 141)

DEPARTMENT OF EDUCATION POSITION

( ) District Representative, presented the DOE position, at hearing of 02/24/2014.

contends that the evidence will show the DOE offered the student a FAPE for the 2013-2014 school year, the parent’s unilateral placement is inappropriate and equities favor the DOE. (T 6-8)

DOE entered into evidence an IEP of August 23, 2013, and a Final Notice of Recommendation (FNR) or 11/05/2013. (Ex 1 & 2)

DOE did not have any evidence that a FAPE had been offered to the student for September of 2013, or the start of the 2013-2014 school year. (T 9)

DOE did not have any witnesses to present at hearing, due to “most of the staff at the CSE have been out for the Presidents Week.” (T 10)

did try the morning of the hearing to obtain a witness. (T 11)

, due to the circumstances, requested an adjournment, that was denied. (T 11-12)

IHO went off the record and gave the DOE a chance to organize itself and present a witness. (T 11-12)

DOE was unable to present its witness and requested an adjournment. Hearing officer denied the adjournment request, noting the parties were notified by email of the procedures to request an adjournment which have not been adhered to. (T 12-13)

(FS) represented the DOE at hearing of03/03/2014. In closing contends the DOE drafted an appropriate IEP, offered the student a FAPE for the 2013-2014 school year, the placement is inappropriate and equities favor the DOE. (T 163171)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, if procedural violations are 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][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO'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]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, 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'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

A board of education 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. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay 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 CFR 300.148).

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 R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

The parent bears the burden of proof concerning the appropriateness of their unilateral placement. A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F. Supp. 2d at 419). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). 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]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…'" (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364, quoting Rowley, 458 U.S. at 207 [identifying exceptions]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 36465). 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; see Gagliardo, 489 F.3d at 115, citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89; Gagliardo, 489 F.3d at 114-15 [noting that even though the unilateral placement provided special education, the evidence did not show that it provided special education services specifically needed by the student]; Frank G., 459 F.3d at 365; Stevens v. New York City Dep't of Educ., 2010 WL 1005165, *9 [S.D.N.Y. Mar. 18, 2010])

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

(Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-

65).

Consideration in determining whether, in to what degree, reimbursement for a unilateral placement is appropriate requires balancing of the relevant equitable considerations applicable to the parents' claim. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 2009 WL 857549, at *13-14 [S.D.N.Y. March 30, 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373

F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep’t of Educ., Appeal No. 07-079; Application of the Dep’t of Educ., Appeal No. 07-032).

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided

While parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow they may take advantage of deficiencies in the district's offered placement to obtain maximization of their child's potential at the expense of public funds, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay 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 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 C.F.R. § 300.148). To clarify a circuit court recently explained, "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs)" (C.B. v. Garden Grove Unified Sch. Dist., 635 F.3d 1155, 1160 [9th Cir. 2011]). Similarly, "a finding that a particular private placement is appropriate under IDEA does not mean that all treatments received there are per se [reimbursable]; rather, reimbursement is permitted only for treatments that are related services as defined by the IDEA" (Richardson Indep. Sch. Dist. v. Michael Z., 580 F.3d 286, 301 [5th Cir. 2009]).

DOE IEP and PROPOSED PLACEMENT for 2013-2014

DOE submitted evidence of a proposed placement for the 2013-2014 school year by way of FNR, dated 11/05/2013. (Ex 2)

DOE did not avail themselves of the opportunity to present their case on the day of hearing 02/24/2014.

No evidence was presented to justify the appropriateness of the August 23, 2013 IEP, or the proposed placement, included in the FNR. (Ex 1 & 2)

The late presentation of an offer of placement in and of itself evidence that the DOE failed to offer the student a FAPE for the 2013-2014 school year.

In reviewing the IEP itself I find it contains several deficiencies.

IEP contains information regarding adverse student behaviors such as “ anyone in his way when ”. (Ex 1-1)

Student clearly DOE does not offer any evidence that a FBA was conducted, though a alleged BIP is included in the IEP. (Ex 1-15)

DOE CSE minutes include a notation that the parent is concerned that the student is not receiving OT for his sensory needs and that the student needs constant direction. Neither of these student needs are properly addressed in the IEP. IEP identifies the student as in need of a crises management para. IEP attempts to address this need by recommending a group para, without identifying the size of the group, for half the day. This is inappropriate to meet the student’s behavior needs and his need for direction as identified in the CSE minutes. . (Ex 10-1 & 10-2)

BIP is incomplete and fails to offer any service or support to address the inappropriate behavior. (Ex 1-15)

The failure to conduct an FBA and develop an appropriate BIP, result in an inappropriate IEP being drafted for the student. DOE did not follow appropriate procedure as indicated below in developing the BIP for the student. The result is an IEP that does not address the unique needs of the student.

Under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his or her learning or that of others, the CSE shall consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M., 583 F. Supp. 2d at 510; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50; Application of a Student with a Disability, Appeal No. 09-101; Application of a Student with a Disability, Appeal No. 09-038; Application of a Student with a Disability, Appeal No. 08-028; Application of the Dep't of Educ., Appeal No. 07-120). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; M.W., 2013 WL 3868594, at *5; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009] [discussing the student's IEP which appropriately identified program modifications, accommodations, and supplementary aids and services]; P.K., 569 F. Supp. 2d at 380; see also Schreiber v. East Ramapo Central Sch. Dist., 700 F. Supp. 2d 529, 556 [S.D.N.Y. 2010] [noting that when defending a unilateral placement as appropriate under the IDEA, a parent in some circumstances may also be required to demonstrate that appropriate "supplementary aids and services" are provided to the student]).

In New York State, policy guidance explains that "the IEP must include a statement (under the applicable sections of the IEP) if the student needs a particular device or service (including an intervention, accommodation or other program modification) to address one or more of the following needs in order for the student to receive a [FAPE]" ("Guide to Quality Individualized Education Program [IEP] Development and Implementation," at p. 25, Office of Special Educ. [Dec. 2010], available at http://www.p12.nysed.gov/specialed/publications/iepguidance/IEPguideDec2010.pdf). "The behavioral interventions and/or supports should be indicated under the applicable section of the IEP," and if necessary, "[a] student's need for a [BIP] must be documented in the IEP" (id.). State procedures for considering the special factor of a student's behavior that impedes his or her learning or that of others may also require that the CSE consider having an FBA conducted and a BIP developed for a student in certain nondisciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a], [b]). State regulations define an FBA as "the process of determining why a student engages in behaviors that impede learning and how the student's behavior relates to the environment" and include[s], but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it (8 NYCRR 200.1[r]). According to State regulations, an FBA shall be based on multiple sources of data and must be based on more than the student's history of presenting problem behaviors (8 NYCRR 200.22[a][2]). An FBA must also include a baseline setting forth the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed "that addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement" (8 NYCRR 200.22[a][3]).

State regulations call for the procedure of using an FBA when developing a BIP, and the Second Circuit has explained that when required "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all (R.E., 694 F.3d at 190). However, the failure to comply with this procedure does not automatically render a BIP deficient (M.W., 2013 WL 3868594, at *5; R.E., 694 F.3d at 190; A.D., 2013 WL 1155570, at *9; A.H., 2010 WL 3242234, at *4; see F.B., 2013 WL 592664, at *8-*1; R.C. v. Byram Hills Sch. Dist., 906 F. Supp. 2d 256, 269, [S.D.N.Y. 2012]; F.L., 2012 WL 4891748, at *8; K.L., 2012 WL 4017822, at *11; T.M. v. Cornwall Cent. Sch. Dist., 900 F.Supp.2d 344, 354 [S.D.N.Y. 2012]; S.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523, at *8-*9 [S.D.N.Y. Dec. 8, 2011]; P.K. v. New York City Dep't of Educ., (Region 4), 819

F. Supp. 2d 90, 106 [E.D.N.Y. 2011], aff'd, 2013 WL 2158587 [2d Cir. May 21, 2013]; C.F., 2011 WL 5130101, at *9).

With regard to a BIP, the special factor procedures set forth in State regulations further note that the CSE or CPSE "shall consider the development of a [BIP] for a student with a disability when: (i) the student exhibits persistent behaviors that impede his or her learning or that of others, despite consistently implemented general school-wide or classroom-wide interventions; (ii) the student's behavior places the student or others at risk of harm or injury; (iii) the CSE or CPSE is considering more restrictive programs or placements as a result of the student's behavior; and/or (iv) as required pursuant to" 8 NYCRR 201.3 (8 NYCRR 200.22[b][1]). Once again, "[i]f a particular device or service, including an intervention, accommodation or other program modification is needed to address the student's behavior that impedes his or her learning or that of others, the IEP shall so indicate" (8 NYCRR 200.22[b][2]). If the CSE determines that a BIP is necessary for a student, "the [BIP] shall identify: (i) the baseline measure of the problem behavior, including the frequency, duration, intensity and/or latency of the targeted behaviors . . . ; (ii) the intervention strategies to be used to alter antecedent events to prevent the occurrence of the behavior, teach individual alternative and adaptive behaviors to the student, and provide consequences for the targeted alternative acceptable behavior(s); and (iii) a schedule to measure the effectiveness of the interventions, including the frequency, duration and intensity of the targeted behaviors at scheduled intervals (8 NYCRR 200.22[b][4]).17 Neither the IDEA nor its implementing regulations require that the elements of a student's BIP be set forth in the student's IEP ("Student Needs Related to Special Factors," Office of Special Educ. [April 2011], available at http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf). However, once a student's BIP is developed and implemented, "such plan shall be reviewed at least annually by the CSE or CPSE" (8 NYCRR 200.22[b][2]). Furthermore, "[t]he implementation of a student's [BIP] shall include regular progress monitoring of the frequency, duration and intensity of the behavioral interventions at scheduled intervals, as specified in the [BIP] and on the student's IEP. The results of the progress monitoring shall be documented and reported to the student's parents and to the CSE or CPSE and shall be considered in any determination to revise a student's [BIP] or IEP" (8 NYCRR 200.22[b][5]).

I find that the IEP, of 08/23/2014, fails to provide for personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction and the IEP is not reasonably calculated to provide some meaningful benefit to the student. (Ex 1)

The IEP, of 08/23/2014, does not accurately reflect the results of evaluations to identify the student's needs and does not establish annual goals related to those needs. (Ex 1)

YALDEINU PLACEMENT for the 2013-2014 SCHOOL YEAR

Detailed program in general, and specifically for the student.

employs ABA throughout the day with sensory integration and related services. Related services are delivered through a collaborative model. (T 21)

’s approach is one to one and only accepts students who need one to one instruction. Student was previously in a larger group and “he was very unsuccessful. It seems that his rate of problem behavior was really high and that he wasn’t able to be part of a group for learning or socialization.” (T 81)

The student’s class has seven students, ages five through eight, are good social models for each other, and are on similar academic levels. Class ratio is allowing service of some sort for the student throughout the day. (T 42)

Staff meets and collaborates regarding student programming and behavior and data is taken and analyzed daily regarding the student’s . (T 25-26)

Related services are delivered to the student’s individually, with an option of having services in the classroom. Related service providers contribute to the student’s curriculum book. (T 27-28)

Student receives individual OT three times weekly, as well as in a group. (T 77)

Student receives individual speech twice weekly, as well as in a group. (T 78)

Counselor is available to see the student. (T 78)

detailed the student schedule and how the related services are applied throughout the day in program in general and in support of the student throughout the day. (T 28-36, Ex E)

Student schedule includes a notation of when ABA, OT, Speech, academic curriculum, vocational curriculum, self regulation therapy, or our music program are involved. (Ex D & E)

Student support includes related services providers entering the classroom throughout the day for support and services to address the student’s specific sensory needs. On example was the Wake up and Learn portion of the student’s day, which includes, a student deep massage, different centers, such as a sensory center, and exercise. (T 28-29)

ABA is part of every session in the schedule. “So, even though it is an group, the child’s one to one instructor is present, to follow the behavior protocol and to take behavior data should it be necessary.” (T 28-29)

detailed the student behavior and functioning upon entering the school in November of 2013. Student behavior was severe and it was difficult to ascertain actual student level of functioning. Student is described, at that time, as shy, a little bit non compliant and at times to . (T 36-38)

implements needed behavior programs with the student. Such program was identified as required under the student IEP, but not detailed in any meaningful manner. provides “multiple strategies that we use to set him up really for success, before placing demands on him…we can really set him up for success by using reinforcement, by pairing his work station, by using a token economy.” (T 38-39)

Student is reported as not available for learning in the beginning of the year. Student has progressed so that reports “At this point, he is working through a math curriculum. He has a reading program. He is learning writing. And we have…gotten him to the point where, through teaching him what is expected, through the use of a behavior protocol and tokens and reinforcement, and through the use of a sensory strategies, we have gotten an increased attention and the ability for him to comply with demands and learn.” (T 39-40)

Student is currently functioning on a beginning first grade level for reading and math and kindergarten for writing. IEP had indicated an instructional and functional level of pre kindergarten for reading and math. Student appears to be making progress, despite a late start in the program. (T 45, Ex 1-12)

detailed the importance of the sensory diet developed for the student and his learning needs.

notes the impact of student behavior upon entering the school, noting that due to behaviors the student was unable to be tested. It was determined to provide the student with a sensory diet, so that he would be regulated. (T 91-92)

Sensory diet includes “a lot of deep pressure and heavy work tasks, for 20 minutes…Basically 20 minutes at the same proprioception, with a lot of heavy body work, after 20 minutes he was more relaxed and more focused. We also tried to provide some vestibular input, along with the proprioceptive input, together in combination…we could provide for his vestibular needs as well, which is his need for movement.” (T 9394)

has equipment to deliver the sensory diet and meet the student’s specific needs. (T 94-95)

Student uses the sensory gym, individually, twice a day and once a day in a group. (T 95)

FF also goes into the classroom throughout the day for activities including deep pressure massage and different exercises that stimulate different sensory systems. (T 9697)

Progress in noted in that behavior has improved, and it is easier for the student to follow through on activities. Without the sensory diet the student has more difficulties. (T 97-99)

Regarding the DOE recommendation believes the student requires instruction. (T 103)

describes the student’s sensory needs as “his primary need” and believes it should be part of the IEP. Again, the IEP notes the need for a BIP, but there is no such plan included in the IEP that can be implemented. (T 112)

Parent also notes progress during the time her child has been at , noting that the student “…comes home , a , more compliance. He as often. And in fact, he uses a lot of words…to describe his feelings, more than he used to. And I haven't with him in a long time, since he started.” (T 127-128)

School has also taught the parent techniques to use when her child has sensory seeking behaviors. At home has a schedule for her child; to follow and he is improving. (T 128)

Witnesses detailed an understanding of the student’s needs and the appropriateness of for the student for the 2013-2014 school year.

The educational instruction is especially designed to meet the unique needs of the student and is supported by such services as are necessary to permit the child to benefit from instruction.

For the 2013-2014 school year I offered an educational program which met the student's special education needs and such placement is reasonably calculated to enable the child to receive educational benefits.

TRANSPORTATION

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a caseby-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks door to door special education transportation for the student.

DOE does include the need for special education transportation in the IEP of August 23, 2013. (Ex 1-11)

I find the student is entitled to transportation services to and from school for the 2013-2014 school year.

EQUITABLE CONSIDERATIONS

I find equitable considerations support the parent’s claim. The parent cooperated and appeared at the two IEP meetings, visited the proposed placement even though t was months late, and communicated her concerns to the DOE.

A meeting was held in the spring of 2013 and student was classified . asked for another meeting, which was held in August 2013. (T 116-118)

received the FNR in early November and went to visit the proposed placement. (T 119-120 & 122-123)

identified tuition contract, signed by her and her husband. Each are responsible for payment. (T 125, Ex B)

Regarding family income the family . (T 125)

Husband is self employed is home with a baby. (T 126)

If unsuccessful in the hearing parents will be responsible for tuition payment. EH states that parents will take out loans and use a credit card, as well as ask for family help. (T 126)

Tuition amount of $74,100.00 is greater than the family income. EH is not sure what the family income was last year. Family does qualify for Medicaid and has a mortgage. (T 141)

Tuition for November to June is $74,100.00, and families are expected to pay the tuition. Tuition is prorated for entrance in November. (T 43 & 79)

No portion of the school day is religious. (T 80)

is a 12 month program. Some students choose other summer programs. The student does need a 12 month program. Without spike. Student does not necessarily need to for the summer. In this case the parent is not seeking tuition for the summer program and in that regard the parent is left to accommodate a summer program on their own. (T 83-84)

Parent provided 2013 tax return and statement of average monthly expenses. (Ex II & III)

Family income is presented as $31,517.00, insufficient to pay the $74,100.00 tuition.

No statement is made regarding assets of the family that are available upon which to draw, and be reimbursed.

I find the parent is entitled to reimbursement of tuition for placement at for the 2013-2014 school year in the amount of $74,100.00.

I note that the parent did not provide the DOE with a notice of intent to unilaterally place the student. However, the DOE failed to offer the student a timely placement, to which the parent would normally response. I do not find this failure by the paretn to result in any dimunition of the tuition award.

ORDER

1. The Department of Education (DOE) failed to offer, and failed to provide, the student with an appropriate program and placement and therefore, a FAPE has been denied the student, for the 2013-2014 school year.

2. The DOE shall reimburse parent for payment made to for 2013-2014 school year tuition.

3. Total amount of tuition, including enrollment deposit, to be reimbursed is $74,100.00.

4. The DOE shall provide parent and The with any required documentation and forms necessary to facilitate reimbursement within ten days of the date of this order.

5. Upon receipt of proof of payment of tuition , in part or in full, the DOE shall reimburse parent, in each instance, within 15 business days of such receipt.

6. DOE shall provide door to door special education transportation of the student to and from for the 2013-2014 school year.

7. This decision is subject to appeal and review by the State Review Officer. Dated: March 26, 2014

Daniel Ajello mv

DANIEL AJELLO, ESQ.

Impartial Hearing Officer DA;mv

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”

(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 02/24/014 A Parent's Impartial Hearing Request dated 1/17/14, 4 pages B Enrollment Contract with Addendum dated 11/1/13, 6 pages C School Affidavit dated 2/20/13, 1 page D 2013-2014 Educational Model, 2 pages E 2013-2014 Yowlane Class Schedule, 2 pages

DEPARTMENT OF EDUCATION

Entered 02/24/2014 1 IEP revision dated 8/23/13, 16 pages 2 Final Notice of Recommendation dated 11/5/13, 1 page 3 CSE Minutes dated 8/23/13, 2 pages 4 Preschool Student Evaluation Report dated 7/25/12, 2 pages 5 Evaluation dated 2/3/13, 5 pages 6 Observation dated 7/19/12, 2 pages 7 Evaluation dated 7/18/12, 4 pages 8 Educational Evaluation dated 7/11/12 4 pages 9 Evaluation dated 7/9/12, 5 pages 10 CSE Minutes dated 4/8/13, 2 pages 11 IEP dated 4/8/13, 16 pages

IMPARTIAL HEARING OFFICER

Entered 02/24/2014 I Email re Notice dated 1/22/14, 3 pages Entered 03/17/2014 II 2013 Tax Return, 42 pages III Expense Statement, 03/12/2014, 1 page