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Special Education Law
DECISIONParent PrevailedIHO Case No. 209810

New York City Department of Education, Impartial Hearing Decision

December 2, 2022·Sebastian A. Weiss·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 553705 - NYC: 209810

FINDINGS OF FACT AND DECISION

Case Number: 209810

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: REDACTED

Hearing Requested by: [REDACTED] (“Parent(s)”)

Request Date/Date Complaint Filed: 7/1/21

Date(s) of Hearing: 7/22/22, 8/3/22

Actual Record Closed Date: 11/5/22

Date of Decision: 12/4/22

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 22, 2022:

For the Student:

[REDACTED] (“Parent Counsel”)

[REDACTED], Parent (“Parent” or “Mother”)

[REDACTED], Clinical Neuropsychologist (“Neuropsychologist”)

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2022:

For the Student:

[REDACTED]

(“Parent Counsel”)

[REDACTED], Parent (“Parent” or “Mother”)

[REDACTED], BCBA, [REDACTED] (“BCBA”)

For the Department of Education:

None.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint filed on or about July 1, 2021, as amended on January 13, 2022 (“DPC"). (Ex. A, E)[1] The DPC concerns the Student’s special education program for the 2021-22 school year (“School Year”).

The IHO was appointed to this case on December 17, 2021. The hearing on the merits was conducted on June 22 and August 3, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

ISSUES AND ARGUMENTS

Parent Case:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) by failing to appropriately evaluate the Student and failing to develop an appropriate Individualized Education Program (“IEP”) and placement for the 2021-22 school year (“School Year”). (Ex. E)

The relief the Parents are seeking includes a continuation of the Student’s educational program with an increase in the home-based one-to-one Special Education Teacher Support Services (“SETSS”) based upon principles of Applied Behavior Analysis (“ABA”) from 12 hours per week to 20 hours per week based upon the Neuropsychological Evaluation (defined below), until such time as the Student receives a residential placement. (July T 71-5; CB)

The Parents are also seeking compensatory Occupational Therapy (“OT”) and Speech-language therapy (“SLT”) services because the Student did not receive his after-school pendency mandates during the School Year. (Id) Specifically, the Parents are seeking 46 hours of OT and 57 hours of SLT. The 57 hours of SLT are based upon an IEP and pendency mandate of 1:1 after-school SLT 3x30 per week – 1.5 hours per week times 38 weeks for July, 2021 through May, 2022. The 46 hours of OT based upon an IEP and pendency mandate of 1:1 after-school OT 2x30 per week – 1 hour per week for 46 weeks). (Id)

The Parents are also seeking reimbursement for travel expenses that the Mother incurred driving the Student to and from the Unilateral Placement in the summer of 2021 because the District failed to provide a transportation paraprofessional. (Id)

The Parent presented twenty documents into evidence and testimony from three witnesses. The Parent also presented a closing brief. The District did not object to the Parent’s evidence.

District Case:

The issue for adjudication is 12 periods versus the 20 periods of SETSS as there is no disagreement about the other services that were recommended. (June T 76) The only issue is the implementation of the services. (Id) 12 hours of SETSS is an appropriate level to address the student's needs. (Id 84)

The District did not present any evidence or witnesses.

FINDINGS OF FACT

The Disability Classification indicated on the Student’s IEP is Autism. For the School Year, the Student attended [REDACTED] (“Unilateral Placement”). The Student has attended the Unilateral Placement since an early age. (Ex. K-1)

The Student has significant behavioral difficulties and requires constant redirection and reinforcement and a high staff to student ratio. (Ex. C-5, D-3) The Student is impulsive and engages in a number of maladaptive and inappropriate behaviors, including [REDACTED]. (Ex. C-4, D-5, D-6, O-1) Aggression toward others includes [REDACTED]. (Id) The self-injurious behavior includes [REDACTED]. (Id) The Student cannot be left alone for any period of time as he will constantly engage in his maladaptive behaviors and is a danger to himself. (Ex. K-2) The Student is nonverbal and uses an iPad with the application GoTalkNowPlus to communicate. (Ex. C-2) Different medications have been prescribed to the Student to treat his disorders. (Ex. K-1)

A total of seven Occurrence Reports were filed by staff members at the Unilateral Placement during the School Year to report problematic behavior by the Student, including injuries to the Student and to staff members at the Unilateral Placement. (Ex. Q)

On October 15, 2020, an IEP was developed for the Student which recommended the following 12 month program and placement (“2020 IEP”): (Ex. C)

  • SETSS, All Academics and ADL's, Direct Service, Group service, 12 periods per week, Separate Location Designated Area;
  • 6:1+3 Special Class NYS Approved NPS Day;
  • OT, Individual Service, 2 times per week for 30 minutes;
  • Parent Counseling and Training, Group, once a month for 60 minutes;
  • SLT, Individual Services, 5 times per week for 30 minutes, Separate Location within the school building;
  • SLT, Individual Services, 3 times per week for 30 minutes, Separate Location Designated Area;
  • Transportation Para, Individual, to and from school and outings on bus;
  • Behavior Support Para, Individual, Daily, Full Time, School Building;
  • Assistive Technology Devices and/or Services:Dynamic display speech generating device (SGD), Individual service, Daily throughout the day School / Home;

In addition, the 2020 IEP recommends the following Special Transportation services:

  • Transportation from the closest safe curb location to school;
  • Vehicle and/or Equipment Needs – Air Conditioning;
  • Other Accommodations – Limited Travel Time;
  • Other Accommodations: mini bus; Adult Supervision – 1:1 Paraprofessional;
  • Reason(s) why the student needs special transportation service and/or accommodations: Student requires special transportation due to behavioral and medical concerns.

In June 2021, the District and Parent entered into an Agreement for Reevaluation. (Ex. M)

In July 2021, the District signed a pendency agreement (“2021 Pendency Agreement”) based upon a prior FOFD #195369 for the 2020-21 school year (“Prior FOFD”) which orders the following services: (June T 75, Ex. B)

  • 6:1+3 program at the Unilateral Placement;
  • Full-time 1:1 crisis paraprofessional;
  • 1:1 SLT 5x30 per week in school;
  • 1:1 SLT 3x30 per week after-school, through the issuance of an RSA;
  • 1:1 OT 2x30 per week after-school, through the issuance of an RSA;
  • 12 hours per week of 1:1 ABA SETSS at an enhanced rate;
  • An additional five hours per day of 1:1 ABA SETSS for each day that the Student is learning remotely;
  • One hour per week of BCBA supervision;
  • Monthly individual parent counseling and training for 60 minute sessions;
  • Dynamic display speech generating device, for use at school and home;
  • Special education transportation in an air-conditioned mini-bus with limited travel time not to exceed 60 minutes, with a transportation paraprofessional on all days that the Student is receiving in-school instruction;
  • 12 month extended school year;

On August 26, 2021, an IEP was developed for the Student which recommended the following 12 month program and placement (“2021 IEP”): (Ex. D)

  • SETSS, All Academics and ADL's, Direct Service, Group service, 12 periods per week, Separate Location Designated Area;
  • 6:1+3 Special Class in an NYSED-Approved Non Public School - Day;
  • Counseling Services, Individual Service, 1 time(s) per week for 30 minutes, Separate Location Designated area;
  • Counseling Services, Group of 2, 1 time(s) per week for 30 minutes, Separate Location Designated area;
  • Counseling Services, Individual service, 1 time(s) per week for 30 minutes, Special Education Classroom;
  • OT, Individual Service, 2 times per week for 30 minutes;
  • Parent Counseling and Training, Group, once a month for 60 minutes;
  • SLT, Individual Services, 5 times per week for 30 minutes, Separate Location within school building;
  • SLT, Individual Services, 3 times per week for 30 minutes, Separate Location Designated Area;
  • Behavior Support Para, Individual, Daily, Full Time;
  • Assistive Technology Devices and/or Services:iPAD with the GoTalk Now communication application, Individual, Daily , Full time, School / Home;

In addition, the 2021 IEP recommend the following Special Transportation services:

  • Adult Supervision – 1:1 Paraprofessional;
  • Vehicle and/or Equipment Needs – Air Conditioning;
  • Other Accommodations – Limited Travel Time;
  • Other Accommodations: Door to door, Mini bus;
  • Reason(s) why the student needs special transportation service and/or accommodations: [The Student] is diagnosed with ASD and presents with significant behavioral difficulties (Self-injurious behaviors, aggression and out of seat behaviors) which requires special bus accommodations;

On August 26, 2021, the Unilateral Placement prepared a Behavior Intervention Plan for the Student. (Ex. O)

On October 13, 2021, a Neuropsychological Evaluation of the Student was conducted. The recommendations set forth in the Neuropsychological Evaluation include the following: (Ex. I)

  • Minimum of 20 hours weekly of home-based ABA therapy;
  • SLT, OT and Counseling;
  • 1:1 paraprofessional or special educator;
  • Parent counseling and training;
  • Genetics consultation to rule out underlying genetic conditions;
  • Monitoring of eating habits and ongoing physical/medical development;
  • Ongoing monitoring of behavioral presentation is required. It is strongly recommended that the Student be brought to the nearest emergency room for psychiatric evaluation, if he exhibits any future episodes of physically aggressive or violent behavior towards his caregivers or other adults.
  • If the Student’s aggressive behaviors continue to worsen in severity and causes concern for his own and other’s safety, his parents should consider a residential placement;
  • Neuropsychological re-evaluation is recommended in approximately 2 to 3 years;

On January 13, 2022, the Parent filed an amended DPC in order to incorporate the 2021 IEP and Neuropsychological evaluation which post-date the original DPC.

On June 7th, 2022, an IEP meeting was conducted (“2022 IEP Meeting”) and the CSE recommended a 6:1:3 program in a residential instead of day program. (June T 93-4) The Student was also recommended to continue his related services, a paraprofessional individual, daily, full time, iPad with the Go Talk NOW communication application, and 12 periods of SETSS. (Id) The Parents have not yet received the IEP developed pursuant to the 2022 IEP Meeting. (Ex. K-5)

Witness Testimony

  1. Neuropsychologist

The Parents presented the testimony of the Neuropsychologist by affidavit. (Ex. T) The witness also appeared at the hearing for questioning. (July T 109-44) A summary of the relevant testimony is as follows:

The Neuropsychologist has a Bachelor’s of Arts degree with a major in psychology, a Master’s degree in bilingual school psychology, and a Ph.D. in school psychology. The Neuropsychologist has also completed a postdoctoral fellowship in pediatric neuropsychology.

The Neuropsychologist is licensed as a psychologist and a bilingual school psychologist in the State of New York and has been a practicing psychologist in New York City for three years, focusing on evaluations for preschool age children and school-age children. She has also been awarded the Nationally Certified School Psychologist (NCSP) credential by the National Association of School Psychologists (NASP).

The Neuropsychologist primarily testified regarding the results of the Neuropsychological Evaluation.

  1. BCBA

The Parents presented the testimony of the BCBA by affidavit. (Ex. J) The witness also appeared at the hearing for questioning. (August T 190-207) A summary of the relevant testimony from this witness is as follows:

The BCBA has approximately 22 years experience working with students with autism. The BCBA has been a Board Certified Behavior Analyst since 2005 and is certified as a Special Education Teacher, Grades K-12, by New York State. The BCBA has a Bachelor’s degree in Psychology and Sociology, and a Master’s degree in Clinical Behavioral Applications of Psychology. The BCBA also attended a Learning Processes and Behavior Analysis PhD program and completed all the requirements but the final dissertation, and earned a Master’s of Philosophy in Psychology.

Applied Behavior Analysis is a therapeutic intervention based on scientific principles and is one of the most effective empirically-supported, evidence-based services for teaching children with autism.

The BCBA first met the Student when he provided direct ABA services to the Student in the Early Intervention program over 10 years ago. The Student first began receiving home based 1:1 services using the principles of ABA on or about July, 2016, through an impartial hearing order.

In the spring of 2016, the BCBA became the team supervisor on the Student’s case and at times has been the direct provider of the Student’s 1:1 services. In addition, the BCBA provides four (4) hours per month of BCBA supervision and (1) hour per month of parent training/counseling on the Student’s case.

The last IEP meeting for the Student that the BCBA participated in was the 2020 IEP meeting, which was held by telephone due to the pandemic. The BCBA voiced his recommendation that the Student continue his ABA services, as well as the continuation of the BCBA supervision and parent training/counseling.

The BCBA was not available to participate in the 2021 IEP meeting. At that time it was and still is the BCBA’s recommendation that the Student continue to require at least 12 and an increase to 20 hours per week of 1:1 instruction using the principles of ABA due to the severe limitations in the Student’s skills and his serious behaviors.

An increase to 20 hours per week of 1:1 ABA at home would provide the Student with the necessary instruction to increase his communication skills and more appropriately manage his maladaptive behavior. It will also provide additional support for the Student’s family in dealing with his behavior.

The BCBA’s testimony describes the Student’s numerous and severe maladaptive behaviors, including self-injurious behavior. The testimony also described the home based therapy that the Student receives.

The Student currently receives 12 hours of 1:1 services at home. During the pandemic, the Student received up to 5 hours per school day of 1:1 services at home on days when he was not able to attend school in person.

Until such time as he is appropriately placed in a residential school, the Student should receive at least 20 hours of 1:1 services at home per week, one hour per week of BCBA supervision, monthly individual parent counseling and training by a BCBA, as well as the remainder of his current program.

  1. Mother

The Parents presented the testimony of the Student’s Mother by affidavit. (Ex. K) The witness also appeared at the hearing for questioning. (July T 135-56) A summary of the relevant testimony from this witness is as follows:

The Mother testified in detail regarding the Student’s educational history and maladaptive behaviors.

Regarding OT services, the Student has not received any of his after-school OT services since March 2020.

Regarding SLT services, the Student’s after-school speech provider went on maternity leave around April 2019. The Mother contacted numerous providers to find someone to fulfill the after-school speech mandate but was unable to do so. In May 2022 the Mother finally found an after-school SLT provider who is currently providing the 3x30 mandate of after-school SLT for the Student.

Regarding transportation services, in the summer of 2021 the District failed to provide the mandated 1:1 bus paraprofessional for the Student. The Student’s aggressive behavior made it difficult to identify a replacement. The Mother drove the Student to and from school but did not feel safe and on a few occasions was unable to get him to school. A replacement was finally identified in September 2021.

The Mother drove the Student to and from the Unilateral Placement on days when the bus paraprofessional was not available, which included 26 days during the School Year. The Unilateral Placement is 10 miles from their home, which is 40 miles of driving expenses per day. Using the ACCESS-VR rate (50% of the New York State rate, which was $.56/mile in the summer and fall of 2021), the Mother is requesting $291.20 in mileage reimbursement ($.28 times 40 miles per day times 26 days) for the District’s failure to provide a 1:1 bus paraprofessional.

At the 2021 IEP meeting the Mother requested a residential placement for the Student.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

ANALYSIS

Regarding the issue of whether the Student was provided a FAPE for the School Year, the District bears the burden of proof. However the District did not present a case in this regard.

By comparison, the Parent presented evidence and witness testimony indicating that the Student requires 20 hours of home based ABA/SETSS instruction as well as a residential placement due to his significant behavioral problems. For the School Year, the Student was recommended for 12 hours of SETSS instruction and a day placement. Subsequent to the filing of the amended DPC, the Student was recommended for a residential placement pursuant to the 2022 IEP Meeting, which was conducted during the School Year. Regarding related services, the evidence indicates that the Student did not receive his recommended OT and SLT during the School Year. Based on the foregoing, I find that the Student was not provided a FAPE for the School Year because he was not provided with necessary services during the School Year. The evidence also suggests that the Student requires a residential placement, which was not provided for the School Year.

The second issue for adjudication is the Student’s educational program for the School Year and the Parent’s request for an increase in ABA-SETSS services from 12 hours per week to 20 hours per week. The Parents are requesting a continuation of the Student’s special education program pursuant to the 2021 Pendency Agreement established pursuant to the Prior FOFD. This program is generally consistent with the program set forth in the 2021 IEP. The Student’s program is therefore not in dispute for purposes of this hearing, with the exception of the request for an increase in ABA-SETTS services. The Parent has presented substantial evidence and witness testimony regarding the Student’s ongoing aggressive and self-injurious behavior, including aggressive behavior towards others. A total of seven occurrence reports were filed by staff members at the Unilateral Placement throughout the School Year. According to the BCBA, the Student has been receiving 12 hours per week of home based ABA-SETTS services and benefits from these services. The Neuropsychologist and BCBA both recommend an increase to 20 hours of home based ABA-SETSS services. Based on these facts, I find that the Student and those around him would benefit from an increase in home based ABA-SETTS services to 20 hours per week.

The third issue for adjudication is compensatory services, specifically for related services that the Student has missed according to the Mother’s testimony. The amount of compensatory services requested by the Parent is consistent with the Student’s related services mandate for the School Year pursuant to the 2021 IEP. The District did not present a case in this regard. Therefore I find that the Student is entitled to the requested compensatory services, to be provided within a 24 month period.

The final issue for adjudication is the Parent’s request for reimbursement for transportation expenses. The Student is mandated to receive special transportation services pursuant to the 2020 IEP, 2021 IEP, and Prior FOFD. The Parent testified that the District failed to provide a 1:1 bus paraprofessional for the summer and start of the fall of 2021 and that the Parent incurred transportation expenses as a result. The reimbursement amount requested by the Parent does not appear to be unreasonable under the circumstances. In addition, the District did not object to the reimbursement request.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

  1. The Student was not provided a FAPE for the School Year;
  2. The Student is entitled to 20 hours per week of home based ABA-SETSS;
  3. The Student is entitled to 46 hours of compensatory OT services and 57 hours of compensatory SLT services, to be completed within 24 months;
  4. The District shall reimburse the Parent for the transportation costs in the amount of $291.20;

SO ORDERED.

DATED: December 2, 2022

/s/ Sebastian A. Weiss, Esq.

Impartial Hearing Officer

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A

DPC

7/1/21

24

B

FOFD #195639

1/15/21

10

C

2020 IEP

10/15/20

48

D

2021 IEP

8/26/21

57

E

Amended DPC

1/13/22

15

F

BCBA Progress Report

8/21/21

9

G

BVBA Progress Report

4/20/22

8

H

NYSED Memo

4/30/13

2

I

Neuropsychological Evaluation

10/13/21

17

J

BCBA Affidavit

6/2022

10

K

Parent Affidavit

6/21/22

7

L

SESIS Events Log

2021-22

21

M

Agreement for Reevaluation

6/2021

1

N

Unilateral Placement Progress Reports

2021-22

11

O

Behavior Intervention Plan

8/26/21

4

P

Speech Progress Report

6/2021

1

Q

Incident Reports

2021-22

7

R

OT Progress Report

9/16/20

2

S

CV of Neuropsychologist

Undated

4

T

Neuropsychologist Affidavit

Undated

7

Closing Statement

8/15/22

20

DOE EXHIBITS

None.

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.