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FINDINGS OF FACTS & DECISION
Case Number: 175545
NYS Identifier Number N/A
Student’s Name: -
Date of Birth: [“Confidential”]
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 01/15/19 & 04/28/20
Actual Record Close Date: 11/23/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[CONFIDENTIAL] DOE Representative DOE 01/15/19
[CONFIDENTIAL] Teacher 01/15/19 (T)
[CONFIDENTIAL] DOE Representative DOE 04/28/20 (T)
[CONFIDENTIAL] Advocate PARENT 01/15/19
[CONFIDENTIAL] Advocate PARENT 04/28/19 (T)
[CONFIDENTIAL] Mother PARENT 01/15/19
[CONFIDENTIAL] Director – Private School PARENT 01/15/19 (T)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
01 IEP 10/03/17 DOE (?)
02 CSE Minutes 10/03/17 DOE (?)
03 Psychoeducational Evaluation 09/18/18 DOE 06
04 PWN Unspecified DOE (?)
05 School Location Letter 10/16/17 DOE 02
06 Closing Statement 06/15/20 DOE 03
A IHR 08/07/18 PARENT (?)
B Program Description Unspecified PARENT (?)
C Withdrawn / Not Received N/A PARENT N/A
D 10-Day Notice 08/16/17 PARENT 02
E Class Schedule 2017-2018 PARENT (?)
F Class Profile 2017-2018 PARENT (?)
G Enrollment Contract 2017-2018 PARENT (?)
H Affidavit of Payment 01/03/19 PARENT (?)
I American Express Bill 2017-2018 PARENT (?)
N/A N/A N/A IHO N/A
On April 15, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a (14) year old student attending a private school and the New York City Department of Education (“DOE”) - District: , concerning the student’s special education program .
I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 15, 2019 and April 28, 2020.
A previous IHO conducted the hearing held on January 15, 2019. That IHO received documents in evidence that were never forwarded to the undersigned. The transcript for the January 15, 2019 hearing date contains references to exhibits received in evidence that does not identify the date of he exhibit or the number pages for the exhibit. It was established that the DPC was filed on or about August 7, 2018 and that the undersigned was appointed as the IHO eight months later, on April 15, 2019. (T-141)
On April 28, 2020, the undersigned did not have a copy of the January 15, 2019 transcript, or the exhibits. (T-142)
At the hearing on April 28, 2020, the parties were directed to submit their written closing statements within two weeks (subsequently amended to 05/26/20 - T-144-5) and that a decision will be rendered on the record that exists, unless it was grossly insufficient.
(Id.) They were also directed to email the undersigned any evidence that was received in evidence. (Id.) The parties never forwarded the evidence to the undersigned. The
DOE’s closing statement was received on June 15, 2020. (D-6) The Parent never submitted a written closing statement. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.
BACKGROUND
In this case, the Parent alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2017-2018 school year. At the impartial hearing, the Parent seeks the following relief:
(a) Reimbursement for the tuition costs associated with the student's placement at the private school for the 2017-2018 school year and/or direct payment to the private school for these tuition costs; and
(b) That the DOE conduct an FBA and BIP with parent participation; and
(c) That the DOE to provide the student with the related services recommended on the last agreed upon IEP and/or reimburse the Parent and the private school for the cost of the provision of the mandated related services; and
(d) Any further relief as the IHO deems just and proper.
THE DOE’S CASE
The DOE called (2) witnesses to testify on its behalf, who did not testify on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. The Parent crossed examined both of the DOE’s witness. (T-32-45 & 62-9) The DOE also submitted (6)
document into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE ’s case is incorporated in the decision below.
THE PARENT’S CASE
The Parent called (3) witnesses to testify on her behalf, (1) of which testified via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f] and submitted (8) documents into evidence. (P-H) The DOE declined to cross examine the Parent’s affiant but did cross the remaining (3) witnesses for the Parent. (T-106-14 & 134) In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION
Two 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley,
458 U.S. 176, 206-07 [1982])
A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.
(See 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] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])
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. (See 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. (See 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." (See 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." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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." (See 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] and Grim, 346 F.3d at 379) Additionally, school districts are not required to "maximize" the potential of students with disabilities. (See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379 and 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.'" (See Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP must be "reasonably calculated to provide some 'meaningful' benefit." (See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.
1997] and Rowley, 458 U.S. at 192) The student's recommended program must also be provided in the least restrictive environment (“LRE”). (See 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]; 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and 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 accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1];[8] NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and 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. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "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. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S.
at 12, 15 and 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 and 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. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-
105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and 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….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S.
at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See 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." (See 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 specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at
364-65).
The IDEA allows that tuition 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 child 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." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 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 in the public schools." (See Greenland Sch. Dist. v.
Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v.
Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-
092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and 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"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition 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, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; 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] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049)
In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:
The first witness for the DOE is a licensed teacher for special education and social studies. (T-18) He testified that he participated in an IEP meeting for the student on October 3, 2017. (T-21) He verified that the attendance page on the IEP was accurate.
(T-21-2 & D-1) A member of the student’s private school, the Parent and a Parent advocate attended the meeting. (T-22) He was the district representative and the special education teacher at the meeting. (T-23) They recommended a "Special class 12:1 with related services, counseling both individually and in a group, and occupational therapy individually, and speech and language therapy individually." (T-24 & D-1)
The witness testified that they relied upon current standardized testing, a review of the clinical records, listened carefully to what the teachers from the school were telling them, and listened very carefully to what the Parent was telling them. (T-25) The goals were developed by carefully looking at where the student’s weaknesses and his strengths were. (Id.) They created math goals, reading goals, speech and language goals, counseling goals, and occupational therapy goals. (T-25-7)
The witness testified that the student had an educational disability, diagnosed with attention deficit hyperactivity disorder and his mother was willing to look at a public school, so they wanted to make that the student was in a therapeutic environment headed by a trained special ed teacher to give him enough emotional and individualized attention so that learning could take place. (T-28) They placed the student in a "community school," which is really a neighborhood school that the Parent can have easy access to the teachers and to the school so if any issues come up they can easily access the school, and the student would be exposed to mainstream peers. (T-29)
On cross examination, the witness testified that the school psychologist, did sit down and watch/”observe” the student very carefully as he took the standardized test.
(T-31) However, there was no classroom observation. (Id.) The school psychologist took the CSE minutes. (T-33) Their understanding is that the academy program at the private school was very similar to their self-contained class in the public-school system.
(T-35) The closest class they had to the 10:2:1 class the student was in the private school, was the 12:1 class. (T-36-7) At the time of the meeting, the student had ADHD and was taking medication that was being monitored by the doctors. (T-38)
The witness further testified that sometimes the student had behavior problems with his peers because he had a tendency to brag and say things that were somewhat distorted. (T-40) He believes that the Parent said the 12:1 class was too large. (T-42)
There was no substantive testimony developed during the witness ’ re-direct examination.
(T-43-4) There was no re-cross examination of the witness. (T-44)
The second and final witness for the DOE is also a licensed general and special education teacher. (T-50) She testified that they had a 12:1:1 class in the sixth grade available for the student. (T-52) Sometimes students will fit in to the 12:1:1 class and the situation, and sometimes they don't, it really depends on the status of performance is at the time. (T-53) They had the related services recommend for the student. (Id.) She believes that the teachers at the school hold appropriate special education licenses. (T-
53-4) The materials at the school are modified for the students. (T-58) The students are mainstreamed for assemblies, for lunchtime and gym. (T-59)
On cross examination, the witness testified that it is possible that something would've changed because they did have a 12:1 class. (T-61) Their "school implementation team" tries to match the student’s recommended program and if they can’t, the school psychologist would decide if the program needed to be modified. (T-62-
3) There was no substantive testimony developed during the witness’ re-direct examination. (T-67-9) There was no re-cross examination of the witness. (T-69)
The first witness for the Parent has a Master's in School Psychology and an Advanced Certificate in School Psychology. (T-82-3) She testified that the private school is a “K” through “8” mainstream program. (T-86) For the 2017-2018 school year, the student was in their sixth grade Academy program. (T-88) The student received OT, speech and counseling at the private school. (Id.) The student was in a class with (10)
students. (T-90)
The witness testified that It was hard for the student to focus and that he needed a lot of individualized attention. (T-90) The student was at a slower pace than everybody else, so they modified his assignments and assessments. (T-91) “ ” and “ ” were religious classes at the private school, but not “ .” (T-
93) The student needed one-to-one instruction or assistance in the classroom almost always to complete a task. (T-100) A 12:1 self-contained class would not be an appropriate ratio for the student. (T-103)
On cross examination, the witness testified that they use curriculum-based assessments. (T-105) The private school does not participate in the New York State exams in math and English language arts. (T-107) There was no -re-direct examination of the witness. (T-109 & 113)
The Parent’s second and final witness is the student’s mother. (T-122) She testified that she attended an IEP meeting with the DOE on October 3, 2017. (T-123) he did not agree with the 12:1 recommendation, because the student needs a smaller class.
(T-123-4) She agreed with the student psychoeducational evaluation. (T-124) The student progressed at the private school in that he was able to do his homework at home and take test at school, while making friends. (T-128-9) The student passed all of his classes during the 2017-2018 school year and was promoted. (T-132)
On cross examination, the witness testified that to address her concerns, they told her the public school could modify the program. (T-134) She did not visit the recommended school because she had seen it the previous year. (Id.) The student has never attend a public school. (T-135) There was no re-direct examination of the witness.
(T-136)
In this case, the limited record provided to the undersigned indicates that the relevant CSE team was duly composed under the law, that the team used relevant and recent evaluative materials to make its recommendations and that those recommendations are tailored to the student’s needs and reasonably calculated to provide the student with an education benefit commensurate with his potential. (Supra) On the other hand, the private school is a “mainstream ” school, where the student requires constant 1:1 attention. (Id.) This student has never attended a public school and one has to wonder if the Parent really would have considered placing him there, despite the testimony of the DOE teacher. (Id.) A fair reading of the record created under the previous IHO leads me to find that the DOE did offer the student a FAPE for the 2017- 2018 school year.
Having found that the DOE did offer the student a FAPE, the necessary inquiry is at an end and I need not determine the appropriateness of the private school or whether equitable consideration bar an award on behalf of the Parent.
For all of the reasons stated herein, I find that the Burlington/Carter test is not satisfied in favor of the Parent and that she has met not her burden under Schaffer to prevail in her request for tuition reimbursement.
NOW therefore, it is hereby
ORDERED that the DOE did offer the student a FAPE for the 2017-2018 school year and that the Parent’s request for relief is denied; and it is further
ORDERED that the DOE shall also conduct a re-evaluation of the student in all areas of his suspected disabilities, not evaluated within the last two years, for the 2021- 2022 school year; and it is further
ORDERED that the CSE shall forthwith reconvene after the completion of the student’s evaluations and consider all of the student’s evaluations and any other relevant information and produce a new IEP for the student’s 2021-2022 school year; and it is further
ORDERED that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: November 29, 2020 _____________________________
New York, New York Edgar De Leon - IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the PublicSchool District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)
Footnotes
[8] NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06- 059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and SRO No. 08-087) The DOE 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