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FINAL ORDER - DOE DEFAULT & INQUEST
Case Number: 188185
NYS Identifier Number N/A
Student’s Name: - To be Edited
and Removed by the NYC-DOE
Date of Birth:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 06/23/20
Actual Record Close Date: 12/14/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 06/23/20 (T) Attorney PARENT 06/23/20 (T)
Mother PARENT 06/23/20 (T) Affidavit of PARENT 06/23/20 (A) Affidavit of PARENT 06/23/20 (A) Affidavit of PARENT 06/23/20 (A)
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
PARENT’S EXHIBITS
Exhibit Number Date Exhibit Name Number
of Pages
A 09/06/2019 Impartial Hearing Request 6
B 06/14/2019 10-Day Notice 2
C 08/19/2019 10-Day Notice 2
D 05/16/2019 IEP 14
E 04/26/2018 IEP 15
F 02/21/2019 Neurology MRI 2
Results
G 03/06/2019 Letter from Dr. 2
H 04/12/2019 Psychological Update 3
I Undated , Program 2
Description
J 06/12/2019 , Enrollment Contract 4
2019-2020 12-month Program
K 02/07/2020 , Enrollment Contract 1
2019-2020 12-month Program Supplement
L 2019-2020 Class Schedule 1
M April 2020 – Quarterly Report of Progress 12
June 2020
N 03/16/2020 ’s Remote Learning 4
Program
O 03/31/2020 Remote Learning Schedule 3
P 2019 U.S. Individual Tax Return of 2
Q 06/11/2020 Affidavit of 6
R 06/16/2020 Affidavit of 9
S 06/15/2020 Affidavit of 4
N/A N/A N/A IHO N/A
On October 24, 2018, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), 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 year old student not attending school and the New York City - Department of Education (“DOE”) - , regarding the student’s special education program. After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on June 23, 2020. A list of the persons who appeared via affidavits and the documents entered into evidence is annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”)
filed by the student’s Parent’s attorney(s), on or about September 6, 2019. The Parent herein alleges that the student was denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school years. At the impartial hearing, the Parent request the following relief:
(a) Reimbursement/funding for tuition and costs at the private school; and
(b) Reimbursement/funding for a 1:1 fulltime paraprofessional; and
(c) Funding for a private neuropsychological evaluation; and
(d) That the student be provided with special transportation services to the private school, and should the DOE fail to provide the student with a bus, and/or funding for transportation costs; and
(e) Compensatory education services for any services the student was entitled to, and did not receive, including pendency services.
At the impartial hearing, the Parent withdrew her request for “pendency”, compensatory services and stated that the issue of “transportation” was moot. (T-11)
The only relief being sought at the hearing is the Parent’s request for which is the funding for the private school, funding for the paraprofessional at the private school, and funding for the private neuropsychological evaluation. (Id.)
FINAL ORDER - DOE’S DEFAULT
The Parents’ DPC having been duly filed pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 USC § 1415(f)(3), 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; and
Notice having been duly given to the DOE; and
The matter having come on for an “impartial hearing” before this IHO on June 23, 2020, and which time the DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence (T-6-10 & 12) and this decision/order made on submission of oral arguments and documentary evidence; and
The Parent having appeared with her attorney(s), , attorney assigned and having provided testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f], (P-Q, P-R & P-S); and
The DOE having declined to cross examine any of the affiants who testified on behalf of the Parent (T-10-1); and
DOE’S DEFAULT
Whereas an inquest regarding the Parent’s damages and the relief she seeks having been conducted, and this “Final Order” based upon her testamentary and documentary submissions, having been presented to this IHO on the record as being in the best interest of the Parent; and
Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-
016); and
Whereas the DOE having failed to submit any testamentary or documentary evidence to meet its burden under the law (T-6-10 & 12); and
Whereas the DOE failed to file and serve an answer or serve a “Prior Written Notice” in this case. (See 20 U.S.C. 1415(f)(3)(e) and T-5-6); and
Whereas “Prior Written Notice” meaning written statements developed in accordance with Section 200.5(a) of the Regulations of the Commissioner of Education, and provided to the parents of a student with a disability a reasonable time before the school district proposes to or refuses to initiate or change the identification, evaluation, or educational placement of the student or the provision of a free appropriate public education to the student; and
Whereas silence in a responsive pleading is an admission, or that a counterclaim in federal practice is compulsory in the answer or deemed waived. (See New York Practice, 4th Edition §§223 & 224, citing Federal Rules of Civil Procedure, Rule 13(a) & Cummings v. Dresher, 18 N.Y.2d 105, 108, 271 N.Y.S.2d 976, 218 N.E.2d 688, 690 (1966) and additionally, as a general matter, the parties to an impartial hearing are obligated to comply with the reasonable directives of the Impartial Hearing Officer (
“IHO”) regarding the conduct of the impartial hearing. (SRO No. 05-026, 04-103 and 04-
061); and
Whereas the party who defaults in concedes only liability and not the amount of “damages.” (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE’s default constitutes an admission of liability, but not of damages, which remains the Parent’s burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011]); and
Whereas here, the DOE did not proffer any evidence that it has offered the student a FAPE, this amounting to a tacit concession that the agency did not offer the student a FAPE for the student’s 2019-2020 school year (T-6-10 & 12); and
Whereas although it would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined; and
Whereas while compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D.
(1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179); and
Whereas the DOE did not present a case-in-chief and made no substantive effort to controvert the documentary evidence submitted by the Parent and the credibility of the documentary evidence was not rebutted by the agency and the documentary evidence is clearly relevant and material to the issues to be determined; and
Whereas I find the documentary evidence submitted by the Parent in this case to be credible, completely uncontroverted and conclusive in this case; and
Whereas as noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE and that the Parent may be entitled to the relief she seeks and this leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033); and
Whereas it is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v.
Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]); and
Whereas when, as here, the DOE does not present any case at the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief; and
Whereas the DOE has conceded liability by failing to present a case and meet its burden under the law because New York State law has placed the burden of production and persuasion at an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S.
49, 58-62 [2005]; and
Whereas it is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE and the undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE and that the Parent is entitled to the relief she has requested; and
Whereas when turning to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim (Burlington, Florence and Cerra, Supra), the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas 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); and
Whereas 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); and
Whereas 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); and
Whereas the Parents also 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) and 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"]]); and
Whereas there is no longer a request for compensatory educational services in this case and an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad.
Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v.
District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]); and
Whereas pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]); and
Whereas the Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.”
(See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept.
13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt ( “Nesbitt II”), 583 F. Supp. 2d 169, 172, 51 IDELR 125 [D.D.C. 2008]); and
Whereas the record in this case is completely uncontroverted by the DOE and supports a finding that the Parent is entitled to the relief sought as indicated below (supra)
and it is unfortunate that the agency forced the Parent in this case to bring the matter to a hearing, when it offered no evidence that it provided the student with a FAPE and then did not challenge the Parents’ assertion regarding the appropriateness of the relief sought; and
Whereas the DOE did not initiate this impartial hearing (DPC); and
Whereas to demonstrate the appropriateness of the relief sought, the Parent need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit the student to benefit from instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65); and
Whereas in the absence of evidence demonstrating that the Parent has 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 the relief sought by the Parent, including but not limited to tuition reimbursement. (SRO No. 04-049); and
Whereas there being nothing in the record consisting solely of the Parent’s uncontroverted testamentary and documentary submissions that sustains a finding that the Parents have not cooperated with the CSE; and
Whereas the DOE having waived its right to contest the Parent’s testamentary and documentary evidence (Supra); and
Whereas the Parent’s testamentary and documentary submissions are completely and unequivocally uncontroverted and need not be repeated herein in their entirety as they are annexed hereto for the benefit of the reader; and
Whereas the DOE’s default constitutes a denial of FAPE for the student’s 2019- 2020 school year; and
Whereas the director of the private school testified that the private school lower school serves students ages (5) to (10) is staffed by (9) head teachers and is highly structured to address students' challenges with attention and behavior regulation, small class sizes and low student-to-teacher ratios that ensures students are provided a significant amount of individual attention and very small group instruction (P-Q); and
Whereas the director also testified that the private school year program is a classroom with (6) students and (7) adults, which includes (1) head teacher, an assistant teacher, (5) paraprofessionals, including the fulltime paraprofessional assigned the student (Id.); and
Whereas at the private school, the student receives an intensive individual pull-out related services, speech and language therapy (4x30x1), Counseling (1x30xl) and occupational therapy (3x30x1) to support her significant speech and language d fine motor delays (Id.); and
Whereas at the private school the student receives instruction in reading, writing, math, social studies, and science, as well as a skills curriculum and music, art, and yoga classes, in a 12-month program with a 1:1 paraprofessional assigned to her for her safety (Id.); and
Whereas the special education teacher that testified on behalf of the Parent, and the Parent herself corroborated the testimony of the private school’s director (P-R & P-
S); and
Whereas, accordingly, I find that the private school and the assignment of a 1:1 paraprofessional is an appropriate placement and service for the student for the 2019- 2020 school year; and
INDEPENDENT EDUCATIONAL EVALUATION - “IEE”
Whereas if the Parent request an evaluation or disagrees with an evaluation obtained by the school district, the Parent has a right to obtain an IEE at public expense.
(See Regulations of the Commissioner of Education § 200.5(g). (“NYCRR § 200.5”);
and
Whereas if the Parent request an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.
(See 8 NYCRR § 200.5(g)(iv); and
Whereas, the statute as written contemplates that the school district will be given notice of the Parent’s request for an evaluation or disagreement with the school district’s evaluation so that it may invoke its right to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and
Whereas additionally, 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) provide that if a hearing officer requests an IEE as part of a hearing, the cost of the evaluation must be at public expense; and
Whereas the Parent testified that her request for reimbursement of the independent neuropsychological evaluation was made with the filing of her DPC (P-S); and
Whereas the Parent’s failure to notify the DOE of an evaluation it objects to or of her request for an independent educational evaluation, prior to requesting payment for the same, does not comport with the spirit of the law in that it denies the DOE the options afforded it by the statute to conduct an evaluation, pay for the Parent’s IEE or file a DPC to defend it position to the contrary; and
Whereas, accordingly, I find that the Parent is not entitled to reimbursement for the evaluation requested, however, and I will also exercise my discretion under 34 C.F.R. 300.502(d) and 8 NYCRR 200.5(i)(3)(vi) and order the DOE to conduct its own evaluations regarding any areas of suspected disabilities that the student may have; and, which the Parent may subsequently agree or disagree with; and
REQUEST FOR COMPENSATORY SERVICES
Whereas the Parent has submitted in evidence, completely uncontroverted evaluative evidence and uncontroverted testamentary evidence which supports the Parent’s request for compensatory services in this case (T-5-9, P-F, P-I & P-J); and
Whereas the DOE failed to appear at the hearing and defaulted on its statutory obligations, and said default constitutes a tacit concession that the student was denied a FAPE for the 2017-2018, 2018-2019 and 2019-2020 school years (T-5-9); and
Whereas a gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.
1988) and SRO No. 02-047); and
Whereas in Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.”; and
Whereas in the instant case, the Parent has withdrawn her request for compensatory services, thus this decision/order need not address the same; and
SPECIAL TRANSPORTATION SERVICES
Whereas the IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. (See 20 U.S.C. § 1401[26], see also 34 CFR 300.34[a], [c][16]); and
Whereas in addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” (See Educ. Law §§ 4401[1], 4402[4][a], see also Educ. Law § 4401[2] and 8 NYCRR 200.1[ww]); and
Whereas specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. (SRO No. 03-053); and
Whereas if a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. (See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]); and
Whereas the State Education Department has indicated that a CSE should consider a student's mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that an IEP “must include specific transportation recommendations to address each of the student's needs, as appropriate.” (See “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005]); and
Whereas other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. (See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997] and Malehorn
v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]); and
Whereas when reviewing the transportation provisions made for a student by a district, the relevant question is whether the transportation arrangements are appropriate to meet the student's needs. (SRO No. 03-054); and
Whereas there is no evidence in the hearing record as to how the student was transported to and from school each day during the relevant school year; and
Whereas accordingly, the hearing record does not support a finding that the DOE denied the student a FAPE due to the lack of provision for special transportation; and
Whereas the student’s IEPs dated May 16, 2019 and April 26, 2018 do not mandate that the student receive special transportation services (P-D & P-E); and
Whereas, however, this does not vitiate or constitute a determination regarding the student's entitlement to transportation as available to regular education students or suitable transportation as available to students attending nonpublic schools “for the purpose of receiving services or programs similar to special education programs recommended” by the CSE. (See Educ. Law 3635; 4402[4][[d]); and
Whereas if the DOE has not done so already, may provide transportation of the student to her private school in accordance with the above; and
Whereas the DOE’s default constitutes a concession of a denial of FAPE and the uncontroverted documentary evidence submitted by the Parent and annexed hereto supports the Parent’s request for relief as detailed below.
Now, therefore, it is hereby
ORDERED upon the DOE’s DEFAULT and after INQUEST that upon the DOE’s receipt of reasonably satisfactory proof of said services having been rendered, the DOE shall either reimburse the Parent and/or directly pay the cost of the student’s tuition and costs and 1:1 fulltime paraprofessional at the private school, the entirety of the student’s 2019-2020 school year thereat; and
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall conduct evaluations of the student in all areas of her suspected disabilities, not identified above and not evaluated within the last two years, for her 2021-2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2021- 2022 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: December 16, 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)