New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 539291 - NYC: 196013

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

REDACTED

-against-

Findings of Fact and Order The New York City Department of Education Case # 196013

Procedural Context

On July 20, 2020, I was appointed to hear the matter of REDACTED versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Act, 20 U.Y.G. Section 1415 (f)(1). On July 6, 2020 and August 5, 2020, the parties executed a pendency agreement. Exh. D. On August 13, 2020 a pre-hearing conference was held for the purpose of developing a litigation calendar and framing the issues, where possible. Thereafter, the proceedings continued on October 5, 2020; November 23, 2020; January 8, 2021; February 11, 2021; March 11, 2021; April 20, 2021; June 23, 2021; July 8, 2021; August 19, 2021; September 23, 2021; March 16, 2022 and April 27, 2022. On this last occasion, testimony was taken, evidence was entered into the record and proceedings were closed. As a result, the timeline was duly extended. It is noted that this is a Parental request seeking ten additional hours of SEIT with all related services to be provided on the basis of an extended school year. Parent’s Exh. C at 2.

Subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses and mutually available dates. The child’s last IEP was drafted in 2016 and, at that time, REDACTED was classified as a “pre-school child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq. In March 2016 the child was diagnosed with Autism Spectrum Disorder by Dr. CLINICIAN. He currently attended a mainstream, private school. Specifically, the Parent solely asserts that the child requires an additional 10 hours of SEIT in addition to the services outlined in the IEP of June 20, 2016, such services to be provided on the basis of an extended school year.

Prior to the commencement of the within action, it became clear that the Department of Education would not be producing any witnesses or evidence. Likewise, there are no DOE evaluations in the record nor did the Department of Education offer a current IEP. Although the Department’s advocate appeared at the outset, she was unable to participate fully in the zoomed proceedings and left shortly after the proceedings were initiated. Under these circumstances, I find that the Department of Education has not met its prong one burden consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. A list of persons in attendance and of evidence is appended hereto.

Please note that the date of this decision as well as the Distribution Date and Case Closed date are May 18, 2022.

The Parent’s Case

CLINICIAN 2 testified via affidavit. Exh. J. He is the Program Director for SCHOOL 1 hereinafter referenced as “the Agency.” In this capacity, Mr. CLINICIAN 2 sets up and directs student programs, supervises a staff of special education teachers, supervisors and consultants. This includes reviewing prospective student evaluations, progress reports and other clinical materials. Ms. CLINICIAN 2 noted that each teacher is matched with a student consistent with teacher expertise and student needs. In addition to these duties, the witness indicated that he oversees all intake procedures, meets with providers and any other professionals involved in the child’s education. Mr. CLINICIAN 2 further testified that he visit the schools where SCHOOL 1’s services are provided and collaborates with school personnel as needed. Exh. J, passim.

The witness indicated that SCHOOL 1’s rate is $175.00 per hour of 1:1 Special Education Services. This reflects the fact that its service providers are actually employees of the Agency. As such, SCHOOL 1 pays payroll taxes, worker’s compensation and disability insurance. This fee also reflects operational expenses as well as the cost of supplies and materials. Additional expenses include support staff and a proprietary online portal to collect progress notes for each student, draft and collect progress reports and prepare for IEP/IESP meetings. Ibid.

SCHOOL 1 additionally offers professional development to its providers. Much of this instruction includes teaching strategies such as the Wilson Reading Program, the Bader Reading Assessment, Reading A-Z, the Social Thinking Curriculum by Michelle Garcia Winner and many other research-based programs. Exh. J at 3.

The witness indicated that he is familiar with both the child in this matter as well as his SETSS/SEIT providers. Both TEACHER 1 And TEACHER 2 are certified NYS educators who are trained and experienced in literacy and comprehension. He noted that the progress reports submitted into the record were accurate representations of the child’s goals. Exhs. E, K. The child receives his services at his mainstream school, both in and out of the classroom. As the student is classified with Autism Spectrum Disorder, his receptive and expressive language abilities are severely limited. In the receptive domain, REDACTED lacks the comprehension of the language used by the classroom teacher. Expressively, his language is similarly impaired. While REDACTED is clearly improving, progress occurs at a slow and indolent rate, reflecting the child’s struggle to retain, master and generalize information.

The Parent additionally testified remotely. In a brief statement, she indicated that she was pleased with REDACTED’s participation in a mainstream classroom, noting that it was beneficial to her son. She added, however, that he required an extended year program as he regressed significantly when not in class. Tr. at 124. She noted, in addition, that REDACTED has exhibited definite improvement since his off-task behaviors have been addressed. By doing so, REDACTED’s ability to absorb instructional materials is facilitated.

Finally, CLINICIAN 3 testified on behalf of the Parent. Mr. CLINICIAN 3 is a BCBA and is a NYS licensed Behavior Analyst. As a certified behaviorist, Mr. CLINICIAN 3 works with children on the autism spectrum and, in this capacity, has worked privately with REDACTED. Beyond working with the child at home, Mr. CLINICIAN 3 has interfaced with the student’s school in order to facilitate REDACTED’s ability to integrate within the community. Tr. at 100-101.

Mr. CLINICIAN 3 described a child who is very rigid. He frequently communicates by acting out ( tantrums, crying, hitting etc.), and uses language in a concrete manner. During the past year, Mr. CLINICIAN 3 was frequently in touch with the child’s teachers as well as the School principal. In January 2021, Mr. CLINICIAN 3 developed an Assessment Summary and Treatment Plan for the child. Exh. K. Mr. CLINICIAN 3 recommended an additional ten hours of SIET/SETSS as the child demonstrates difficulty following directions in class and during transitions. He noted that the child interacts inappropriately with his peers and has limited play skills. He testified, “So for him getting through the school day is an entire ordeal to make it through.” Tr. at 103. These dysfunctional behaviors interfere with REDACTED’s ability to remain on task and to absorb educational materials. The child struggles to attend to instruction and maintain focus. Tr. at 104-105. Although Mr. CLINICIAN 3 opined that REDACTED had a great deal of potential, the child’s off-task comportment is problematic both behaviorally and academically. Nevertheless, the witness believed REDACTED could benefit from a mainstream placement, by observing and modeling typically developing peers, as long as he had the requisite support. Tr. at 114. Mr. CLINICIAN 3 testified, in summary, that “the main issue is to be able to - train the SEIT and work with him to facilitate the learning.... That’s really the goal.” Tr. at 115.

In view of the above, the witness additionally opined that REDACTED required additional SEIT/SETTS hours as the ten hours he presently receives are exclusively devoted to academics. REDACTED, however, requires additional ABA services in order to support his ability to remain in a mainstream school. These hours would address the child’s ability to cope with classroom rules, to transition between subject areas and to assist with curricular modifications, if necessary. In addition, these additional services would support the child during recess and periods of free play. Tr. at 110-113. Mr. Goldberg indicated that any ABA program would require supervision.

Finally, the witness indicated that REDACTED required a 12-month school year as he has observed significant regression during school breaks and vacations.

The Department of Education’s Position The Department of Education contends that it has provided the child with a FAPE which is both substantively and procedurally valid, asserting that its June 20, 2016 CPSE recommendations for ten hours of SEIT along with speech, occupational and physical therapy are appropriate. Exh. B. As specifically articulated, the School District asserts that the IDEIA simply requires the School District to provide a FAPE, absent any duty to maximize or optimize the child's educational benefits. Thus, it maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is simply fulfilled by the implementation a plan “reasonably calculated to confer an educational benefit upon the child.” Board of Education of the Hendrick Hudson Central School District, Westchester County, et al., v. Amy Rowley, by her parents, Rowley et el., 58 US l76, at 206; Walczak v. Florida UFSD, 142 F.3d 119 (2d Cir.1998).

The Parents’ Position The Parents request continuation of the last agreed upon CPSE IEP, dated June 20, 2016. Exh. C at 2. However, they seek to supplement these services with an additional ten hours of SEIT. Without these additional ten hours, the Parents assert that the Department of Education’s program stands in abrogation of its duty to provide REDACTED with a free and appropriate public education for the 2020-2021 school year. They maintain that the failure to offer these additional services on a twelve-month basis further establishes a violation of the IDEA. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997).

Discussion of the Law

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Finally, the Courts have addressed the question of whether a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate (emphasis ours) education under the IDEIA and subsequently enroll the child in a private school of their choice. The Supreme Court has established a three-pronged test under School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), which defines those circumstances in which a Board of Education may be compelled to reimburse a parent. Under these guidelines, a unilateral placement may be reimbursed where 1) the CSE's IEP is inappropriate; 2) the parent's placement is educationally appropriate and 3) equitable factors compel a finding of fairness. There is, moreover, no requirement that the placement be state approved or even that it generate IEPs as part of its educational strategy. Florence County School District Four v. Carter by Carter, S.Ct. 361 (1993).

General Discussion of Related Services and Supplementary Supports

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. Section 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. E. Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027 W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]; 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. Section 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435 [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. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 [S.D.N.Y. 2008]; see also Schreiber v. E. Ramapo Cent. 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 pp. 25-26, 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. at p. 25). 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 non-disciplinary situations (8 NYCRR 200.4[d][3][i], 200.22[a]-[b]). Additionally, a district is required to conduct an FBA in an initial evaluation for students who engage in behaviors that impede their learning or that of other students (8 NYCRR 200.4[b][1][v]). 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]). Although State regulations call for the procedure of using an FBA when developing a BIP, the failure to comply with this procedure does not automatically render a BIP deficient (A.H. v. New York City Dep't of Educ., 2010 WL 3242234 [2d Cir. Aug. 16, 2010]).

Application of the Law to REDACTED In the matter at bar, the Parent is requesting behavioral services in the form of SEIT /SETSS. The DOE did not offer any documentation or evaluations regarding REDACTED’s need for a BIP or FBA. Indeed, it is unlikely the Department is aware of this child’s needs in any substantive manner as it has not conducted a CSE since June 2016, nearly six years earlier. Given this scenario, I have no alternative but to accept the undisputed Assessment Summary and Treatment Plan prepared by Applied Behavioral Mental Health Counseling, PC. in lieu of a functional behavior plan. Exh. K.

Having established the need for behavioral services, the next issue concerns the scope of these services and when they can be provided. With specific regard for services provided within the context of private institutions, New York State Education Law §3602-c provides that a district must provide services to a student who attends a nonpublic school in the school district, upon the written request of the parent. Services are defined to mean instruction in the area of education for students with disabilities during the regular school year, provided that such instruction is given to pupils enrolled in the public schools of such district. Education for students with disabilities means special education programs designed to service persons who meet the definition of children with disabilities.

Thus, while the New York City Department of Education (the "DOE") is required to provide special education services to a student who has been classified as having a disability, services must be in the areas of instruction provided to pupils in the public schools. Thus, any instruction in the area of religious studies or instruction outside of that provided in public schools should not be provided. A review of the child’s schedule indicates that, from Monday to Friday the School provides a mere hour and one half of secular studies per day, notwithstanding the fact that the child participates in an eight-hour school day. Exh. L. This hour and one half is, thankfully, supplemented Monday through Thursday by two hours of SEIT/SETTS. On Fridays, the child only receives 75 minutes of secular instruction, reflecting various academic areas such as handwriting, history, physical education and social skills. Again, the only significant academic instruction on Fridays is provided by a two-hour SEIT/SETTS session.

Although the Parent is requesting an additional ten hours of SEIT/SETTS, there is no requirement that the Department furnish behavioral services in order to facilitate the child’s participation in religious instruction. For this reason, I am only awarding five hours per day of additional services along with 2 hours of weekly supervision. This reflects the abbreviated amount of time devoted to secular studies by the child’s school. Nevertheless, the undisputed testimony indicates that the child requires an extended school year and, therefore, all services should be provided on this basis.

Conclusion The parent’s request is granted, in part.

Wherefore, it is hereby ordered that:

Within forty-five (45) days of receipt of this Findings of Fact and Order, the Department of Education shall convene to develop an IEP or IESP for the child, said document to include a provision for 15 hours of SETTS, reflecting ten hours per week of academic intervention and five hours of ABA per week. ABA services shall be provided by a BCBA or LBA. An additional 2 hours per week shall include supervision of all SETSS services (both academic and behavioral) by a BCBA or LBA. All services shall be paid at the enhanced rate of $175.00 per hour.

Dated: May 18, 2022

___________________________________________

Leah Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on April 27, 2022 For the Parent lAWYER.

Parent

CLINICIAN 3, BCBA

For the Department of Education:

District Representative, CSE Region

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School 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.