Impartial Hearing Decision

DECISION ORDER Case Number: 190284 Student’s Name: Redacted Hearing Requested By: —_ Parent Hearing Officer: Martin J. Kehoe III, Esq.

Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (THO) in an impartial hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. The central issues herein are whether the District provided a Free and Appropriate Public Education (FAPE) for the Student during the 2019-2020 school year, and if not, is the District responsible for up to thirty (30) hours of Special Education Teacher Support Services (SETSS) at an enhanced market rate for services secured by the Parents during the 2019-2020 school year. A hearing was held on January 16, 2020; January 17, 2020; January 22, 2020; and January 29, 2020. Parent’s Position In the complaint notice dated October 22, 2019, the Parents alleged that the District did not provide a FAPE for the 2019-2020 school year and were seeking funding/reimbursement for 1:1 Special Educational Teacher Support Services (SETSS) at an enhanced rate for no less than 30 hours per week; for the District to continue to provide at an enhanced rate, speech and language therapy, occupational therapy, and counseling; compensatory education in the form of makeup services at an enhanced rate for instruction and/or related services; and reimbursement for the cost of the neuropsychological evaluation. During the hearing, the Parents withdrew their request for enhanced rate related services (T. 20) leaving open the issues of 1)enhanced rate SETSS, 2) reimbursement for the independent evaluation, and 3) make-up services District’s Position The District asserts that they provided a FAPE for the Student, and that 30 hours per week of Special Education Teacher Support Services (SETSS) is not considered the least restrictive environment. They are not in agreement about the rate (T. 17). Student History The Student has a disability classification of Other Health Impairment, and was diagnosed with Attention Deficit Hyperactive Disorder, combined presentation; Specific Learning Disorder with impairment in reading comprehension, Specific Learning Disorder with impairment in written expression, impairment in grammar, punctuation accuracy, and clarity of organization of written expression; and Specific Learning Disorder with impairment in mathematics, with impairment in accurate math reasoning (Ex. D-9).

The Neuropsychologist testified that the Student’s weaknesses are processing speed; language; visual-spatial skills; and attention (T. 71). She added, the Student has “sionificant weaknesses in comprehension, which affects all areas of function.” (T. 72) His computation skills in math are average, but the Student has difficulties with problem solving (T. 37). The Neuropsychologist testified that, “Although a strength, the Student’s short-term memory declines when he has to work with information (T. 68-69)”. The Neuropsychologist stated that she reviewed the Student’s report card, and IESP, and spoke to the Student’s Speech and Language Therapist (T. 71). During her evaluation, the Neuropsychologist observed: the Student “needed a significant amount of repetition, you know, instructions to be repeated, clarified. Sometimes he would just stare off. He needed prompting, and “.>>whenever it was allowed I was able to repeat,... the instructions or directions. When it wasn’t, . . able to be repeated, you saw that really significant weakness” (T. 74). The Parent testified that the Student’s greatest challenge is reading comprehension (T. 55). According to the Parent, the Student also has difficulty staying focused and it takes him longer to process and retain information (T. 56). He does not have problems with behavior (T. 57). Recommendations The Neuropsychologist recommended the following placement options: “A full-time special education program that can provide intense and focused intervention for children with learning disabilities and attentional disorders. This would be a placement that has a low student to teacher ratio, that specializes in multi-sensory reading interventions such as the Orton-Gillingham or Wilson method, and that integrates those strategies into all areas of instruction throughout the day” Or, if placed in a mainstream setting:“30 hours of special education teacher support services (SETSS) in an individualized format with related services. The special educator should be trained in multisensory learning techniques, such as the Orton-Gillingham model” (Ex. D-9)'. In the Neuropsychologist’s opinion, the District’s recommendation of 15 hours of SETSS would not be appropriate to address Student’s needs (Ex. K-4). “[The Student’s] diagnoses affect his learning as he presents with inattention, frequent distractibility, slowed processing, expressive and receptive language delays, and visual/spatial weaknesses. He needs slower paced special education instruction, multi-sensory teaching, and many opportunities for individualized instruction to make progress” (Ex. K-4). Background of the Case On May 20 2019 the Committee on Special Education (CSE) convened to develop an IESP for the Student who was transitioning from a full-time special education program to a mainstream class at the Private School. The Parent (mother) testified by affidavit that she attended the May 20, 2019 CSE meeting; she did not disagree with the speech She also recommended continuing speech-language therapy, and occupational therapy, counseling, an Assistive Technology (AT) device for writing assignments, testing accommodations, and classroom modifications (Ex. D 9-12).

language and occupational therapy mandate on the Individualized Educational Services Program (See the IESP Ex. M-1). Further, it was the Parent’s opinion that the psychoeducational evaluation, “was not helpful in identifying the type and extent of classroom environment and methodologies needed and teach [the Student]” (Ex. M-1). Following the meeting the Parents sent a letter to the CSE, by FAX on June 3, 2019, stating their disagreement with the District’s re-evaluation of the Student, including the psycho-educational evaluation, and requested funding for an independent neuro- psychoeducational evaluation and any other testing recommended in the evaluation (Ex. B). The Parent testified that the District did not respond to her June 2019 letter requesting an independent evaluation (Ex. M-2). The Parent paid the $3,200 for the neuropsychological evaluation (Ex. M-2). Despite the SETSS recommendation (Ex. M) of fifteen hours per week, the Parent testified that the Parents never received a list of SETSS providers from the District. ‘The Parent said that she tried to find a provider at the District rate (T. 59-60).The Student’s father also contacted agencies and providers (T. 62). She and others tied to secure a qualified provider, but no one was available or, if they were, they did not have Orton- Gillingham training (Ex. M, 2-3). The Parent said that someone at the Student’s school ultimately recommended the SETTS Teacher (T. 59).

The Parents’ attorney sent a Ten-Day Notice Letter to the CSE Chair dated August 19, 2019, stating their intention to provide the Student with 30 hours of 1:1 SETSS and related services at an enhanced rate and seek funding (Ex. C)’. The Student’s Mother sent a letter to the CSE Chair dated October 8, 2019, enclosing the neuro-psychoeducational evaluation (with an optional recommendation for 30 hours of 1:1 SETSS, among other things) and asking the team to reconvene to consider the Student’s report and create an appropriate plan for the 2019-2020 school year (Ex. D-1). The CSE reconvened and held a meeting on November 1, 2019 to consider the Neuropsychological evaluation (Ex. 1). The Parent did not consider the amount of recommended SETSS sufficient to meet the Student’s needs (Ex. M-2). ( Again, The IESP recommended SETSS 15 times per week; 1:1 speech and language therapy, 3 x 30; and 1:1 occupational therapy, 3 x 30 (Ex. 1)). The Parent testified that she disagreed with the number of SETSS periods at the CSE meeting (T. 52), but they weren’t willing to give more (T. 53). She testified, “They just said that...they just couldn’t give us more hours...” (T. 53). At the second CSE meeting, they increased the hours, but accordingto the Parent, “but not nearly enough” (T. 53). 2 The basis for the 30 hours of 1:1 SETSSS is not disclosed in the Ten-Day Notice Letter (Ex. C)

CSE Meeting The School Psychologist testified that he participated in the November 1, 2019 CSE meeting (T. 90). He said the team relied on the neuropsychological evaluation and the District psychoeducational evaluation from March 2019 (T. 92). He said the CSE recommended 15 periods of SETSS after a review of the neuropsychological evaluation and hearing the Parents’ concerns (T. 93). The School Psychologist offered the opinion that, 15 periods of SETSS “a very large amount” and said with SETSS and related services, the Student would be out of the classroom and not receiving instruction with peers (T.99). He was not aware of the maximum amount of SETSS that the CSE would be allowed to recommend (T. 104). He testified that SETSS is a group service (T. 109-110). SETSS The SETSS Teacher testified that she began working with the Student in September. She stated that in September, he was functioning at a second grade level in reading comprehension, but now his reading comprehension skills are at a beginning third grade level and his decoding skills are on grade level (T.38-39). She said that he has made some improvement in math but has not gone up to grade level (T. 39), and that his writing and spelling are at a third-grade level. She provides services in the classroom and sometimes in a separate location to reinforce the Student’s skills (T. 41). She provides 30 hours, sometimes less (T. 41). According to the SETSS Teacher, the Student’s greatest challenges are in reading comprehension and greatest strengths are in math (T. 42). Legal Background IDEA Generally The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that: e (A) have been provided at public expense, under public supervision and direction, and without charge, e (B) meet the standards of the state educational agency, e (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and e (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).!

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 USS.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(1)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). 10

Education Law section 3602-c, as amended by Chapter 378 of the Laws of 2007, establishes New York State’s (NYS) requirements relating to the provision of special education to students with disabilities enrolled in nonpublic elementary and secondary schools by their parents. Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an individualized education services program (IESP) from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them. Federal regulation (34 Code of Federal Regulations (CFR) section 300.130) defines parentally placed private (or nonpublic) school children with disabilities as "children with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary or secondary school, other than children with disabilities covered under 34 CFR 300.145-147 — “Placement of children by parents if free appropriate public education (FAPE) is at issue." Analysis The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law $4404(1)(c); See, Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the 11

District). See also, L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). Substantive Standard 15 hours of SETSS 30 hours of SETSS or a specialized School The purpose of IDEA is to provide students with a “basic floor of opportunity” of access to specialized instruction and related services that are individually designed to provide educational benefits. Board of Education, Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 189-190, 102 S. Ct. 3034 (1982); Walczak v. Florida UFSD, 142 F.3d 119 (2TM¢ Cir. 1998). Neither the IDEA nor Article 89 of the New York State Education Law requires a school district to provide special education and related services designed to maximize the potential of a disabled student. Nor do federal and state education laws require a school district to provide the best possible educational program and related services or match those services requested by a parent. Application of a Child With a Disability (City School District of Buffalo), S.R.O. Decision 04-20 (2004). Rather, the goals and mandates of the IDEA and N.Y. Education Law are relatively modest: namely, to provide appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175- 1176 (S.D.N.Y. 1992); Moubry v. Independent School District, 9 F. Supp.2d 1086, 1104 (D. Minn. 1998) (citing Rowley). 12

This straightforward obligation of the District is underscored by the obligation to demonstrate the appropriateness of the program recommended by its CSE. To meet its burden, a board of education must show that its recommended program is reasonably calculated to confer educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982). The recommended program must also be provided in the least restrictive environment. 34 C.F.R. § 300.550(b); 8 NYCRR 200.6(a)(1).x In order to determine compliance with the least restrictive environment mandate of the IDEA one must determine whether education in the regular classroom, with the use of supplementary aids and services, can be achieved. If not, the question turns to whether the school has mainstreamed the child to the maximum extent appropriate. In the instant case neither party argues that education in the regular classroom could be achieved through the utilization of a variety of supplemental aids and services. The District’s argument seems to turn on the fact that 30 periods of SETSS per week, coupled with an ambitious palette of related services, would frustrate the LRE mandate and functionally remove the Student from the mainstream placement that the Parents had chosen. It is the School Psychologist’s opinion that, “Given that [the Student] is mainstreamed and in a general education class, 30 periods of SETSS, individualized Special Education Teacher Support Services...is not really a realistic support if it’s being provided during the school day” (T. 96-97). While the Districts School Psychologist agreed that a 13 mainstream class could work for the Student,(Tr p117. ) he was also aware that the previous year the Student’s classroom configuration was 5:1;1 in the Private School (T. 124). The crux of his defense was: “. . .[W]henever making our recommendations, we have to consider the least restrictive environment as well as what would be educationally beneficial and appropriate for the Student.” (T. 127). When considering the least restrictive environment (LRE) a list of factors include, but is not limited to 1) the steps the district has taken to accommodate the child in the regular classroom, including the consideration of a continuum of alternative placement and support services ; 2) comparison of the academic benefits the child will receive in the regular classroom with those received in the special education classroom; 3) the child's overall educational experience in regular education, including non-academic benefits; and 4) the effect on the regular classroom of the disabled child's presence in that classroom. See for example P. v. Newington Bd. of Educ.,546 F3d 111, (2d Cir. 2008) During the 19-20 school year the Student was in a mainstream class of about 21 students (T. 43). Initially ten (10) hours of SETSS were recommended by the CSE (May 20, 2019 CSE meeting) and then after the November 2019 reconvene and review of the neuropsychological evaluation, the quantity was increased to fifteen (15) periods of SETSS. (T. 126) The Parents have been providing thirty (30) periods of SETSS all year. The SETSS Teacher works with the Student 1:1 (T. 46). The SETSS Teacher uses 14 refocusing, redirection, and repetition in working with the Student. (Ex. L). The SETSS Teacher testified by affidavit that the Student has improved in reading comprehension, writing, and math studies (Ex. L). She confirmed that the classroom is “mainstream” (T. 43) but the Student is consistently behind the other Students ( Reading Skills at a lower level (T. 43); Math skills are behind the group as well” (T. 43). In a note of optimism, she reported that “He gets along very well with [his classmates]” . . . and, “He loves sports.” (T. 45, 61; Ex. 3, p. 2)). The Parent seemed to identify the issue in this case precisely in answer to a question regarding the CSE’s explanation of how the recommendation of 15 periods of SETSS would address the Student’s needs. She explained: They just thought it would benefit him and, you know, they —it would—the increase in hours would help, but obviously it was not enough.” (T. 54) In conclusion, her testimony revealed that the November CSE recommendation was not supported by any “guidance” from either the District’s psychoeducational evaluation or any of the Student's providers. (T. 63) My review of the record leads to the following findings and observations: When the District was on notice of the neuropsychological evaluation with its recommendation of thirty (30) periods of SETSS per week, they promptly addressed the disparity with their own earlier recommendation of ten (10) periods of SETSS per week and changed the recommendation to fifteen (15) periods of SETSS per week. That change 15 took place on November 1, 2019 and was to be implemented on November 18, 2019. (Ex. 1) The increase in SETSS by the CSE from ten (10) to fifteen (15) periods per week benefited the Student.(See generally the testimony of SETTS provider and Parent (Ex.s L & M)) The District did not demonstrate an appropriate response to the Parent’s Ten-Day Notice (Ex. M2) Based upon the District’s oversight in this regard it is equitable to award an additional five (5) periods of SETSS per week from September to November 18, 2019. Here? I rely on in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 US. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. The District did not demonstrate that their recommendation of fifteen (15)periods per week of SETSS hours per week was appropriate in the context of the specific recommendation of the Student’s neuropsychologist for thirty (30) periods of SETSS per week. Thus I find that the District did not provide a FAPE from November 18 2019 until the end of the school year. 3 'T the extent that the complaint notice requests additional services, | decline to make such award. 16

This may simply be a question of substantive appropriateness. For example, “. appropriate specialized education and related services sufficient for the disabled student to benefit from his/her education. Straube v. Florida UFSD, 801 F. Supp. 1164, 1175- 1176 (S.D.N.Y. 1992) But, instead of taking up this issue at the CSE level it appears that the transition from the prior year 5:1:1 to the current mainstream environment was simply a function of practical necessity. Apparently the 5:1:1 was no longer being offered. am not convinced that the District recommendation was not arbitrary" in that the support for their position could just have easily been Twelve (12) periods per week or seventeen (17). I acknowledge that the District did take steps to accommodate the Student in the regular classroom (See, Ex. 1)°. Speech therapy and occupational “therapy were mandated and he was afforded a number of testing accommodations (Ex. 1) However, the record is insufficient concerning the comparison of the academic benefits the Student could receive in the regular classroom with those received in the special education classroom. P. v. Newington Bd. of Educ.,546 F3d 111, (2d Cir. 2008) Here I note that the Neuropsychologist’s primary recommendation was for the Student to attend “A full-time special education program” (Ex. D-9; Ex. K# Para 16). Many students who 4 I also acknowledge the logic of the School Psychologist in limiting the number of SETSSS periods per week. It has a commonsense appeal (After ali, the SETSS teacher was “. . .with him for every hour of the school day.” (T. 42). 5 Although the record does indicate an assistive technology evaluation is in order (Ex. K3) 17 share the complex diagnostic profile of the Student are able to find placement in such full -time special education programs and they actually thrive. | The matter is further complicated by the unique individual profile of the Student in this case. He seems to truly enjoy the mainstream environment, yet he is not achieving the grade level progress that one would expect from the full-time SETSS. For this, the matter is remanded to the CSE so that options for the Student can be explored and the parties can reevaluate the propriety of the full-time SETTS program. An effort should be undertaken to compare the academic benefits the Student could receive in the regular classroom with those of a special education classroom. With respect to the 2019/2020 School year SETSS, I direct the District to pay the enhanced market rate of eighty dollars ($80) per hour to the SETSS Teacher for all invoices relating to services provided from November 18, 2019 until the end of the 19/20 school year, not to exceed thirty (30) hours per week. Independent Educational Evaluation An independent educational evaluation is defined under the IDEA as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.” 34 CFR 300.502(a)(3)(i). Under Schaffer v. Weast, 546 U.S. 49 (2005), the Supreme Court held that the party requesting a hearing 18 under the Individuals with Disabilities Education Act (“IDEA”) must bear the burden of proof. In New York, the Legislature enacted an amendment to the Education Law to ensure that in cases brought by parents, the school district will bear the burden of proving that it provided a free appropriate public education. N.Y. Educ. L. § 4404(1)(c). The Regulations allow an impartial hearing officer to order independent evaluations as part of a hearing to inform the record; “Requests for evaluations by hearing officers. Ifa hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.” 8 N.Y.C.R.R. § 200.5(g)(2). The Part 200 Regulations specifically describe and provide for independent educational evaluations: (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees. (i) If requested by the parent, the school district shall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section. (ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school - district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to 19 obtaining an independent educational evaluation at public expense. (iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation. (a) The explanation by the parent in subparagraph (iil) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation. (iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 8 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502; 20 U.S. C. § 1415 (b)(1) and (d\(2)(A). The Supreme Court pointed out the importance of the TEE to parental participation, noting that _..parents have the right to review all records that the school possesses in relation to their child. [20 U.S.C.] § 1415 (b)(1). They also have the right to an “independent educational evaluation of the[ir] child.” Ibid. The regulations clarify this entitlement by providing that a “parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.” 34 CFR § 300.502(b)(1) (2005). IDEA thus ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition. Shaffer v. Weast, 546 U.S. 49, 60-61 (2005). 20

In the instant case the District failed to ensure an independent educational evaluation was provided at public expense and they did not file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. The Parents informed the District of their disagreement with the District’s evaluation as early as June 13, 2019 (T. 54, Ex. B)They paid three thousand two hundred dollars ($3,200-) for the Independent Educational Evaluation and ultimately provided the report from the IEE to the District (Ex. D). The District failed to contest this procedure. Accordingly, I rule for the Parents on the issue of payment for the IEE and direct the District reimburse the Parents three thousand two hundred dollars ($3,200-) for the Independent Educational Evaluation. Therefore, I find the following: That the District did not provide a FAPE from November 18 2019 until the end of the school year. That the District pay the enhanced market rate of eighty dollars ($80) per hour to the SETSS Teacher for all invoices relating to services provided from November 18, 2019 until the end of the 19/20 school year, not to exceed thirty (30) hours per week. That I make an equitable award an additional five (5) periods of SETSS per week from September to November 18, 2019 That I direct that the District reimburse the Parents three thousand two hundred dollars ($3,200-) for the Independent Educational Evaluation. The matter is remanded to the CSE so that options for the Student can be explored and the parties can reevaluate the propriety of the full-time SETTS program. An 21 effort should be undertaken to compare the academic benefits the Student could receive in the regular classroom with those of a special education classroom. Dated: June 15, 2020 So Ordered, , é 4 f Lele Martin J. Kehoe III, Esq. Impartial Hearing Officer 22

NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public School District h as aright 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 pe rsonally served upon the opposing party no later than 25 days after the date of the decisio n 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 review ed. An appealing party shall file the notice of intention to seek review, notice of request f or 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 co mplete. The rules of procedure for appeals before an SRO are found in Part 279 of the Re gulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. 23