New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

Name Title For Date

[REDACTED] Attorney PARENT 03/23/22 (V)

[REDACTED] DOE Representative DOE 03/23/22 (V)

[REDACTED] Attorney PARENT 05/04/22 (V)

[REDACTED] DOE Representative DOE 05/04/22 (V)

[REDACTED] Attorney PARENT 06/22/22 (V)

[REDACTED] DOE Representative DOE 06/22/22(V)

[REDACTED] Attorney PARENT 07/12/22 (V)

[REDACTED] DOE Representative DOE 07/12/22 (V)

[REDACTED] Attorney PARENT 09/23/22 (V)

[REDACTED] DOE Representative DOE 09/23/22 (V)

[REDACTED] Attorney PARENT 11/03/22 (V)

[REDACTED] DOE Representative DOE 11/03/22 (V)

[REDACTED] Attorney PARENT 12/13/22 (V)

[REDACTED] Mother PARENT 12/13/22 (V)

[REDACTED] DOE Representative DOE 12/13/22 (V)

DOCUMENTATION ENTERED INTO RECORD

A. Number/Letter Title Dated For # of Pages Impartial Hearing 09/13/21 PARENT Request 04 pages

B. Letter to CSE 08/06/21 PARENT Chairperson 02 pages

C. Amended impartial 07/07/22 PARENT Hearing Request 04 pages

D. Pendency Agreement 10/22/21 PARENT 02 pages

E. Individualized Education 08/25/20 PARENT Program 19 pages

F. Second Quarter Progress 2021/2022 PARENT Report 03 pages

G. Third Quarter Progress 2021/2022 PARENT Report 04 pages

H. First Quarter Progress 2022/2023 PARENT Report 04 pages

I. Daily Schedule 2021/2022 PARENT 01 pages

J. Daily Schedule 2022/2023 PARENT 01 pages

K. Affidavit Testimony of 12/06/22 PARENT REDACTED 03 pages

L. Affidavit Testimony of 12/06/22 PARENT REDACTED 05 pages

On. February 9, 2022, I was appointed as the Impartial Hearing Officer ("IHO") to conduct a hearing pursuant to the Individual with Disabilities in Education Act ("IDEA"), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of a six (6) year old student attending a private school and the New York City Department of Education ("DOE") District 31. The Parents filed a Due Process Complaint ("DPC") on or about September 13, 2021. The case was then waitlisted due to. the unavailability of Hearing Officers until February 9, 2022. Impartial hearings were held on December 13, 2022. A list of the documents taken into evidence is annexed to this decision.

BACKGROUND

On. or about April 22, 2021, a CSE meeting was held for the student after pre school. The CSE recommended the student attend a Special Class 6:1+1 for ELA, Math, Sciences, and Social Studies only, as well as parent counseling and training (1:1 and in

a. group, 3x annually, 30 minutes), speech-language (5x30, 1:1), and a part-time 1:1 toileting paraprofessional review the student's IEP. A meeting was never held to review the students IEP for the 2022-2023 school year. The Parents allege that the student's previous Individualized Education Program ("IEP"), is procedurally and substantively flawed and woefully inadequate. (A-DPC) Accordingly, the Parents further allege that the student was denied a "free and appropriate public education" ("FAPE") for the and 2022-2023 school years. (Id.) The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for her educational planning. 2021-2022

At. the impartial hearing, the Parent seeks the following relief: • Tuition funding for the student's attendance at the private school for the 2021-2022 and 2022-2023 school years.

THE DOE'S CASE

The DOE did not call any witnesses to testify on its behalf and submitted no documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE's case is incorporated in the decision below.

THE PARENT'S CASE

The Parent had (2) witnesses testify on their behalf, who testified on direct testimony via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. On the hearing date, the DOE stated that they would not cross the two affiants. (T-36) The Parent also submitted (12) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

DOES' DEFAULT

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c]) Here, the DOE did not proffer any testamentary evidence that it has offered the student a FAPE. (Supra) This amounts to a concession that the agency did not offer the student a FAPE. It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are filled with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative l[2nd PRIVATE SCHOOL INITIALS] judge ('ALJ") properly exercised discretion to exclude hearsay evidence to protect employer's fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer's president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity "to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3)." (Id. at 585, 488 N.Y.S.2d at 179) The DOE did not present a case-in-chief and did not controvert the documentary or testamentary evidence submitted by the Parent. (Supra) The credibility of the documentary evidence was not rebutted by either party and the documentary evidence is clearly relevant and material to the issues to be determined. I find the documentary evidence submitted by the parent to be credible and uncontroverted in this case. I find the parent's testamentary evidence to be credible and uncontroverted in this case. As noted above, the DOE's failure to present a case at the hearing is a concession that it denied the student a FAPE and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033) It is noted that the DOE was required under the due process procedures set forth in New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the 401 pages

at. hearing, the hearing, the hearing process essentially becomes an "inquest" as to the appropriate relief. The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-2022 and 2022-2023 school years and that the Parent may be entitled to the proven relief she has requested.

APPROPRIATENESS OF THE RELIEF SOUGHT

I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent's claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65) Where sought as relief, a private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the 522 pages IDEA"])

State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])

The party who defaults in concedes only liability and not the amount of "damages." (See CPLR § 3215, First Nat. Bank & Trust Co. v. Classic Collateral Corp., 44 A.D.2d 868, 355 N.Y.S.2d 504 (1974), James v. Powell, 19 N.Y.2d 249, 279 N.Y.S.2d 10, 225 N.E.2d 741 (1967), McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 (1930) The DOE's default constitutes an admission of liability, but not of damages, which remains the Parent's burden to prove. (See Fed. R. Civ. P. 55 & City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 at 128 [2d Cir. 2011])

In sum, substance and relevant part, the testamentary and documentary evidence concerning the appropriateness of the private school is as follows:

The DOE's default herein supports a judgment in favor of the Parent and a finding that the student was denied a FAPE for the 2021-2022 and 2022-2023 school years.

The Parents evidence shows that the student's unilateral placement school provides individualized instruction and the students has progressed during her time there as per the direct testimony via affidavit by the Clinical Coordinator at the private school.

(L)

1. I am familiar with REDACTED. I first became familiar with REDACTED in 2019 when she started attending REDACTED in September of that year. She was placed in a classroom with speech and language services given (3x30 1 :

1) and parent counseling and training offered 3x/year.

2. I had the opportunity to observe her in person nearly every day before we switched to remote learning in March 2020. At this time, REDACTED participated in a 6: 1 :3 preschool classroom where she was provided with small-group instruction (anywhere from 3-6 students), instruction in a dyad (2 students), or individualized instruction. Speech and Language therapy was later increased to 5x30 1 :

1. REDACTED needed staff to prompt learning readiness skills such as giving eye contact for more than a glance, sitting appropriately at the desk for longer and longer amounts of time, responding to her name and returning to work on a mat in her cubby. Other skills such as waiting for a reinforcer, following non-verbal imitations, initiating a hi to a therapist with a wave or verbal approximation were also worked on during the school day. REDACTED made slow but gradual progress in her programming, often needing model, gestural, partial physical, or full physical prompting to master steps.

3. When our school moved to a Virtual Learning Platform in March 2020, students were given the opportunity to participate in virtual learning via an individualized 1:1 Google Classroom to continue working on their IEP-driven goals and curriculum. REDACTED and her mom fully participated in her remote learning, working daily in a synchronous video session where a teacher or teacher assistant prompted mom to work with REDACTED 1 : 1. REDACTED was able to have her speech sessions through teletherapy. She was also offered various groups across the school day including gym and art via Google Meet. Mom commented daily on work posted in REDACTED Google Classroom to let staff know about her progress when mom was working asynchronously.

4. During the 2020-2021 school year, we began on a hybrid model before moving to full time inperson instruction in April 2021. REDACTED worked both remotely and in-person when able to. She continued to work on her learning readiness skills, activities of daily living, independent tasks, and socialization goals. The type of prompt needed is assessed based on the specific program and along a continuum where the least intrusive prompt needed is used. She continued to be reinforced differentially with primary reinforcers for all correct answers and behavioral responses. REDACTED classroom continued to have a 6: 1 :3 staffing pattern. She worked in small-group instruction, dyads, or in individual sessions as appropriate and possible.

Speech sessions continued to be provided in a 1:1 5x/week.

5. For the 2021-2022 school year, REDACTED was again 5 days a week from 8:45 to 2:30 inperson. REDACTED programming picked up from the skills being addressed during the 2020-2021 school year. REDACTED was again a program and receiving speech 5x30 1:1. REDACTED classroom teacher, REDACTED has a Level 3 Teacher Assistant certification and is pursuing her Bachelor's degree in Early Childhood Education. She is a substitute teacher on a study plan and under my supervision. She has approximately 10 years of experience teaching students with special needs. The assistants in the room either had, or were pursuing their Level 1 Teacher Assistant certification. REDACTED speech therapist was REDACTED CCC-SLP for the 20212022 school year.

6. For the 2022-2023 school year, REDACTED remains in a 6:1 :3 program and mandated to receive speech 5x30 1 :

1. REDACTED classroom teacher remains REDACTED. She is a substitute teacher continuing her study plan and under my supervision. The assistants in the room are pursuing their Level 1 Teacher Assistant certification; they are REDACTED and REDACTED. REDACTED holds her Level 1 already from NYSED.

7. REDACTED speech therapist is REDACTED. She has been working with REDACTED students since 2021 and fully certified since 2020.

8. REDACTED is the speech coordinator and has worked at this school since 2012, and with special needs students for 12 years. REDACTED communicates via nonverbal methods. This includes utilization of a low-tech AAC system, as well as gestures, signing, or bringing staff to desired items or activities. Despite continued targeting of verbal speech skills since beginning in the preschool, REDACTED presents with a significantly limited speech sound repertoire. She is only recently beginning to open her mouth in an attempt to imitate a sound.

She is making gradual to consistent progress across receptive programming; expressive language-based programming is addressed at the current time via PECS picture cards or other high/low tech modalities. A request for a high-tech AAC device was initiated by REDACTED to the DOE Assistive Technology Department and a device was granted and added to her amended IEP after an evaluation was conducted in July 2021. Multiple follow-up emails have been sent from the REDACTED speech department regarding procurement, however, to date no device from the DOE was ever delivered. When she had it, REDACTED was learning to navigate and communicate with the device, even using it during her preschool graduation to "sing" a color song with her peers.

9. Again, for both the 2021-2022 and 2022-2023 school years, REDACTED is provided small group instruction (anywhere from 3-6 students), instruction in a dyad (2 students), or individualized instruction.

10. For the 2021-2022 school year, she required prompting with her Receptive Function of Object ID, One-Concept Command, and Handwashing programs. Receptive Body ID, Receptive Action ID, and Receptive Community Helper ID programs were also addressed during this school year. We also initiated a Fine Motor Imitation program. We also incorporated an 8-token schedule where she received a token for every correct response and one for an appropriate behavior, as REDACTED engaged in selfstimulatory behaviors such as motor stereotypies which include hand flapping. During the 20212022 school year, Giovanna made gradual to consistent progress across her academic, social/emotional, and behavioral programs. Programs that Giovanna mastered were maintained when appropriate to ensure mastery and generalization.

11. For the 2022-2023 school year, we are continuing to work through various programs such as her Receptive Function of Object program, and Visual Tracking and Receptive Action ID program. REDACTED is making consistent progress with her Receptive Community Helper

ID program. She continues to earn high rates of reinforcement on an 8-token schedule.

Preferred items include fruit snacks, animal crackers, and other various edibles. She continues to make gradual progress across her programs.

12. REDACTED has provided REDACTED with significant support to address her activities of daily living skills during both the 2021-2022 and 2022-2023 school years such as walking independently without staff prompting, following receptive commands, improving on-task behavior, and decreasing maladaptive behavior. REDACTED often appears anxious and fearful throughout the day, especially during transitions and/or novel people or experiences.

She will often begin to cry and cover her ears when upset, often clinging to staff. She will not urinate at school at all, regardless of whether she wears a pull-up or underwear. REDACTED will remain dry all day. She often appears very aware of her surroundings and may show a simplified understanding of danger. She cannot however express to another what she is afraid or uncomfortable with. She does not display age-appropriate safety awareness and requires supervision at all times. Currently she needs assistance with picking appropriate clothing and dressing, tooth brushing, hair brushing, lunch preparation, etc. She has expanded her diet significantly from when she first started at REDACTED and will now eat Skittles and other candy, bacon, popcorn, croissants, salmon, Chinese food, etc. She can spear and bite her food; however, REDACTED needs some help with dipping the food in ketchup. She is generally a very slow eater.

13. Programming is modified as needed for REDACTED. Teachers provide daily reports and communication to the parent and all other staff have an open communication with the family.

Progress reports are sent home throughout the year as well. Parent trainings are offered every two weeks starting in October and home visits are offered at least 2x/ year to ensure generalization of skills across environments. REDACTED will also increase the number of parent trainings and home visits if there is a pressing issue with the student that needs more attention.

14. Please refer to our progress reports for a complete and accurate representation of REDACTED needs, her programs, and progress during the 2021-2022 and 2022-2023 school years.

15. I strongly believe that REDACTED is appropriately individualized to meet REDACTED's specific and changing needs, as she made progress during the 2021-2022 school year and continues to make progress during the 2022-2023 school year. REDACTED requires a program that can provide structure, reinforcement, and data analysis inherent in Applied Behavior Analysis discrete trial teaching in order to benefit from instruction. REDACTED also continues to require 12-month programming to prevent substantial regression. (L)

The Parent testified via affidavit on direct as follows:

1. On April 22, 2021, I met with the New York City's Department of Education ("CSE") Committee on Special Education ("CSE"), as REDACTED was aging out of preschool and entering a school aged program for the 2021-2022 school year. On that day, the CSE recommended REDACTED attend a Special Class 6:1+1 for ELA, Math, Sciences, and Social Studies only, as well as parent counseling and training (1:1 and in a group, 3x annually, 30 minutes), speech-language (5x30, 1:1), and a part-time 1:1 toileting paraprofessional. This meeting lasted merely 15-minutes.

2. Prior to the April 2021 review, the CSE conducted a Psychoeducational Evaluation (dated April 13, 2021) and a Social History Update (dated February 26, 2021). However, the CSE did not review these assessments with me at the meeting. Additionally, I had significant concerns regarding the Psychoeducational Evaluation and whether it adequately described my daughter's needs as it did not include any actual academic or cognitive testing. The CSE also failed to conduct a Functional Behavioral Assessment or a Speech Therapy Evaluation. The CSE further failed to assess REDACTED physical, and sensory/motor needs prior to the IEP review. It is my understand that a classroom observation was conducted of REDACTED, however, I did not receive a copy of it.

3. None of REDACTED teachers or providers participated in the April 2022 meeting.

4. After reviewing the resulting April 2021 IEP, I did not feel it could address REDACTED 's needs. I do not feel the recommended Special Class 6:1+1 can provide my daughter with the level of individualized support, instruction, and attention she requires in the classroom. This is particularly concerning as the IEP fails to provide for 1:1 instruction. The CSE also neglected to recommend a special class for the entire school date, rather for only 4 subjects. The April 2021 IEP also fails to recommend ABA based instruction, which REDACTED requires to progress.

5. The April 2021 IEP also fails to adequately address REDACTED's behavioral and social/emotional needs as it fails to include a behavior intervention plan despite her significant social/emotional and behavioral needs.

6. After the April 2021 meeting, I received a public-school recommendation dated June 11, 2021, offering REDACTED @ REDACTED: REDACTED ("P.S. REDACTED"). On July 28, 2021, after many unsuccessful attempts to reach the school, I was finally able to visit P.S.

REDACTED and I met with REDACTED. Based on my visit, I did not feel REDACTED could meet my daughter's needs.

7. Despite REDACTED being recommended for this placement, Ms. REDACTED did not know which class she would be placed in. Moreover, REDACTED does not offer any ABA based instruction which REDACTED requires and benefits from. REDACTED is too large for REDACTED to navigate. Additionally, the program could not provide REDACTED with an appropriate and functional peer group, as there is a wide range of functioning in the classes. I was also informed that speech therapy is traditionally done within the classroom setting, which is inappropriate for REDACTED who is easily distracted. REDACTED also could not provide REDACTED with 1:1 instruction. Finally, I was concerned that the program could not appropriately address REDACTED's behavioral and social/emotional needs.

8. Given my significant concerns regarding the April 2021 IEP and placement recommendation at REDACTED, I continued my daughter's placement at REDACTED for the 2021-2022 school year pursuant to the pendency principles of the IDEA.

9. As of today, I have not been contacted by the district to review REDACTED's IEP, nor have I received an updated IEP for the 2022-2023 school year.

10. As of today, I have not received a public-school recommendation for the 2022-2023 school year.

1. Therefore, I have again continued my daughter's placement at REDACTED for the 2022-2023 school year pursuant to the pendency principles of the IDEA. (M)

The students' progress reports submitted into evidence show the students progress at the private school. (F,G&H)

When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as "beyond a reasonable doubt", "clear and convincing evidence", "preponderance of the evidence", "substantial evidence" or even perhaps "rational basis." The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was "reasonable" as an appropriate placement for the student's 2021-2022 school year and 2022-2023 school years.

There is nothing in the record that support a finding that the Parent has not cooperated with the DOE.

NOW therefore, it is hereby

ORDERED that the DOE denied the student a FAPE for the 2021-2022 and 2022-2023 school years and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parent, and/or directly pay for the cost of the student's tuition and related services at the private school for the time the student attended the private school during the 2021-2022 and 2022-2023 school years; and it is further

ORDERED that the CSE shall forthwith reconvene and consider all of the student's evaluations and any other relevant information and produce a new IEP for the student's 2022-2023 school year; and it is further

ORDERED that any of the other relief sought by the Parent not addressed by this "Final Order" is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO's authority or unsupported by the record.

Sharifa Milena Nasser

DATED: March 3, 2023

Queens, New York Sharifa Milena Nasser - I.H.O.

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 L[2nd PRIVATE SCHOOL INITIALS] and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. (Rev. 07/09/20)