New York City Department of Education, Impartial Hearing Decision

SED Case Number: 563789 NYC Case Number: 219466

FINDINGS OF FACT AND DECISION

NYC Case Number: 219466

Student’s Name: STUDENT

Date of Birth: REDACTED

School: SCHOOL.

Request date: October 13, 2021

Dates of Hearing: November 9, 2022; December 19, 2022 and January 9, 2023

Actual Record Closed Date: 1/22/2023

Date of Decision: 1/22/2023

Date of Distribution if Different than Decision Date: not applicable

Hearing Officer: Leah B. Almeleh, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on November 9, 2022 For the Parent:

Law Office of REDACTED For the School District:

REDACTED, Consultant Hearing Representative, Department of Education Representative

Names and Titles of Persons Who Appeared on Persons in attendance on December 19, 2022 For the Parent:

Law Office of REDACTED

For the Department of Education

No appearance

Names and Titles of Persons Who Appeared on Persons in attendance on January 9, 2023 For the Parent:

Law Office of REDACTED

REDACTED, Parent

ADMINISTRATOR, Language Curriculum Coordinator/Director of Related Service, SCHOOL

For the Department of Education

REDACTED, Department of Education

Introduction and Procedural History

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (”DPC”) filed on or about October 13, 2021. Thereafter, I was appointed on October 15, 2021 to hear the above-referenced matter pursuant to the Individuals with Disabilities Education Act, 20 U.R.R. Section 1415 (f)(1) and its implementing regulations, 34 C.F.R. § 300 et seq.in addition to the New York State Education Law, Educ. Law § 4404 et seq. and its implementing regulations, 8 NYCRR § 200.5 et seq.

Thereafter, a pre-hearing conference was held on November 23, 2021 at which time the parties attempted to develop a litigation calendar and, where possible, frame the issues. At this time, the Parent requested a hearing on pendency and this was held on December 22, 2021. At this time, the parties agreed that the Individualized Education Plan dated July 29, 2019 established the basis of pendency. I note that it is uncertain whether the Department of Education ever held a resolution meeting. However, status conferences were then held on March 1, 2022; April 5, 2022; May 5, 2022; June 17, 2022; July 18, 2022; August 22, 202 and September 22, 2022. On these occasions, several different individuals appeared on behalf of the Department, and it was unclear whether anyone had actually been permanently assigned to this case. When it became apparent that the parties were unable to arrive at a mutually satisfactory resolution of this matter, hearings were held on November 9, 2022; December 19, 2022 and January 9, 2023. On this latter date, the Department did not appear and a default was taken. Thereafter the Parent presented their case in main. As a result, the decision date duly extended to January 21, 2023. This is the compliance date, the date of distribution and the date of this Findings of Fact.

Specifically, the Parent asserts that the School District’s educational placement stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A. As a result, thereof, they are seeking tuition reimbursement for the 2021-2022 extended school year in furtherance of a unilateral transfer to the SCHOOL Study Center (hereinafter referenced as “SCHOOL”), a non-public school setting.

As a corollary, the Parents have defended the educational program implemented by SCHOOL and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief.

As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. It should further be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and submission of post-hearing documentation. I note that the student is a school-age child with and is classified as “speech and language impaired” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

A list of persons in attendance and of evidence is appended hereto.

Background

At the time of these proceedings, STUDENT was an approximately [REDACTED]-year-old child, attending SCHOOL pursuant to a unilateral transfer and receiving all related services as articulated in the May 19, 2021 IEP. D Exh. 2. As per the Department of Education’s IEP, the child is recommended for an integrated co-teaching classroom in math, English, social studies and science. In addition the child is mandated to receive occupational therapy (1:1, 3 x 30); physical therapy (1:1, 2 x 30) and speech and language therapy (1:1, 3 x 30). There is no recommendation for an extended school year. No supplementary services, modifications or accommodations, including testing, are indicated. Curiously, the IEP first notes that “STUDENT is very friendly and loves socializing with her peers.” It later indicates that “STUDENT displays poor emotional regulation and poor anger management. She frustrates easily and tantrums often... STUDENT does not show interest in children her age. STUDENT’s minimal interactions are aggressive.” Exh. 3. There is no recommendation for counseling and the only goals articulated are academic.

Issues

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the May 19, 2021 IEP reasonably calculated to confer an educational benefit upon the child during the 2021-2022 and school year?

Point II: Was SCHOOL an appropriate educational placement for the child during the 2021-2022 school year?

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Findings of Fact

The Department of Education’s Case The record is very clear in this case. The Department of Education did not appear for proceedings on December 19, 2022, notwithstanding due and proper notice issued by the Department of Education’s Impartial Hearing Office. Moreover, I take judicial notice of the fact that a Notice of Appearance was not filed for more than one year after this matter was initiated and, clearly, after the relevant hearing date. In fact, when the Department did participate in these proceedings, it initially submitted an inappropriate, unprofessional and unpaginated package of documents. This included a placement letter ostensibly dated June 15, 2021. Exh. D12. At the undersigned’s request, the evidence package was resubmitted correctly.

At the outset, I find this placement letter of June 15, 2022 utterly unpersuasive regarding the provision of an integrated co-teaching seat at PUBLIC SCHOOL as recommended by the May 19, 2022 IEP D Exh. 3. Having recommended this placement, there is simply no supporting documentation to suggest that this placement existed or was even viable. In the absence of a placement witness who could confirm the availability of services for this child, one is forced to rely, sua sponte, upon the use of inappropriate retrospective evidence (testimony or documentation that certain services not listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement) R.E. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421 (S.D.N.Y. 2014); Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv.

Moreover, the submission of a document, unsupported by testimony which can provide context and meaning, does nothing to further the Department’s claim. It is simply unclear whether the printed date is the date the document was prepared or whether this document was printed or mailed out on this date. The Department has not established the factual circumstances surrounding this letter and one can only guess if and when it was ever sent and to whom. Consistent with L.O. v. the NYC Dep’t of Educ., 822 F3rd 95, 106 (2nd Cir. 2016)(mere denomination of evaluative tools does not establish the CSE’s use and consideration of these measures when preparing the IEP), the Department’s failure to provide any testimonial elaboration upon the circumstances, conditions and/or context in which the School Location letter was prepared, renders the document meaningless.

In view of the above and additionally consistent with R.E., supra, I find that the Department of Education has not met its prong one burden consistent with Burlington and L.O., supra.

The Parent’s Case

• • Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was SCHOOL an appropriate educational placement for STUDENT during the 2021-2022 school year?

Having determined that the Department of Education has not met its prong one burden, pursuant to Burlington, supra, I will now address the issue of whether SCHOOL was an appropriate placement for the child during the 2021-2022 school year. Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (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" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential.  They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

ADMINISTRATOR is a speech-language pathologist and additionally serves as the School’s Language Curriculum Coordinator and Director of Related Services. P Exh. K, passim. She described the small, intimate nature of SCHOOL, noting that the School is non-graded and not-for-profit. It is a coeducational placement whose student population spans ages five to fifteen. The School was founded to help children with language-based disabilities and has only fifty-four children enrolled. The School follows the general education Common Core curriculum, which is then modified to meet the needs of its student population which includes children with language-based learning disabilities, language processing disorders, dyslexia, attention deficit-hyperactivity disorder, executive function disorder, auditory processing disorder and other challenges.

A multi-sensory approach is utilized. This includes the use of the Orton-Gillingham protocol, the Wilson Reading System, Reading A to Z, Lindamood Bell, the Phoneme Sequencing Program and Verbalizing and Visualizing modalities. Prior to the onset of each school year, teachers are provided with direct and systematic instruction, ensuring appropriate and correct utilization of such methodologies as ABA, incremental teaching, scaffolding and mnemonics. During the 2021-2022 school year, additional professional development included formal instruction in various programs including Zones of Regulation, the Responsive Classroom, Building Vocabulary, Recognizing Sensory Challenges in the Classroom, Peer Cooperation, QAR (Question, Answer and Response) among other teaching practices.

The witness described STUDENT’s educational profile upon commencing school at SCHOOL. Although the student presented with an average full-scale IQ, her Verbal Comprehension and Working Memory were judged to be in the low average range. The child’s adaptive skills were extremely low in four of five domains. STUDENT was described as impulsive, demonstrating limited safety awareness, and having poor emotional regulation and management skills. The child was generally characterized as self-directed. Her limited interactions with peers often involved aggressive behavior. The child has had both heart and throat surgeries and presents with a blood clotting disorder.

Ms. ADMINISTRATOR noted that the child was frequently unfocused and was generally inattentive. She was unable to organize her thoughts in a meaningful and sequential manner, bouncing from topic to topic when speaking. In fact, the witness observed that it was difficult to follow the child’s train of thought as many of her thoughts were scattered in an unorganized manner.

STUDENT additionally engaged in difficult avoidant behaviors which interfered with her ability to access and education and further impeded the learning of her classmates. Most seriously, the witness indicated that the child engaged in elopement behaviors. In general, when engaging in dysfunctional behaviors, STUDENT did not take responsibility for her actions. At times, the child engaged in self-isolative behaviors and refused to verbalize her concerns, notwithstanding her ability to use words functionally. On other occasions, the witness believed the child’s dysfunctional behaviors were dangerous. Until these issues were addressed, academics could not reasonably be taught. Indeed, Ms. ADMINISTRATOR testified that “at the start of the 2021-2022 school year, STUDENT “would spend much of the school day in her own head space and was unresponsive to others... to ensure that she could learn and remain safe and that she would not harm others.” P Exh. K at 6.

Academically, Ms. ADMINISTRATOR testified that the child was only presented with minimal amounts of information at a time. However, even with incremental instruction, the child struggled to retain information, form associations and analyze classroom lessons – even with constant repetition and reinforcement in a multi-modality context.

In occupational therapy, the Beery Test of visual-Motor Integration and the Bruinink-Oseretsky Test of Motor Proficiency were performed. Results at the beginning of the school year indicated multiple challenges with a range of delays, including difficulty with attention and focus. The child also exhibited neuromuscular weakness, visual motor challenges, poor fine motor skill, decreased balance and discoordinated breathing/speaking. As others had observed, CLINICIAN 2, OTR/L noted poor self-control, self-directedness and difficulty dealing with being told “no.” Ibid.

CLINICIAN 1, LMSW, additionally assessed the child. As other measures had indicated, STUDENT struggled with impulse control, social skills, appropriate behavior and problem solving. The child was alternately anxious and attention-seeking in dysfunctional manners. When upset by others, the child responded with explosive and physically aggressive behaviors, disrupting both her own education and that of her peers. Although the child demonstrated many skills and cognitive levels which were within the average range, her management needs precluded her ability to access an education. In response, STUDENT was provided with a dedicated 1:1 paraprofessional and assigned to a class of 8, in which academics were taught in smaller sub-divided groups.

As the year proceeded, STUDENT was furnished with behavioral strategies, which were reinforced constantly during the day. Beyond an individualized behavior plan which included use of Zones of Regulation to increase metacognition of behaviors, charts were implemented as was a sensory diet, token economy and an “alert” system. P Exh. K at 7. The witness testified that the behavior plan, sensory diet and quick sensory input along with the 1:1 paraprofessional were effective in facilitating STUDENT’s ability to remain focused and regulated. As a result, the child was more consistently available to learn. This was supplemented by a personalized writing program which supported the student’s fine motor and graphomotor skills.

The witness testified that the child made significant improvements in recognizing and naming uppercase and lowercase letters, identifying their representative sound and reading 15 common high frequency words. She also demonstrated emergent skills in blending and segmenting beginning, middle and end sounds.

In math, STUDENT was presented with a structured approach to foundational skills. STUDENT learned to recognize, write and understand what numbers mean. To achieve this end, the child required the support of her 1:1 aide, in addition to the use of hands-on instruction and constant review. Although the child entered the 2021-2022 school year with limited understanding of how numbers operated and an inability to show 1:1 correspondence with more than 3 objects, STUDENT finished the year with greater number sense. The student was able to recognize, read and write numbers from 1-100 as well as to recognize dot patterns to 20. She additionally developed a basic sense of place value, learning to manipulate numbers by adding and subtracting numbers from 1-20.

The child’s executive function was further enhanced in an Executive Function Skills for Life and Learning course. STUDENT participated in this instruction daily from Monday through Thursday. The class was segmented into executive function exercises/games designed to promote cognitive flexibility, planning ahead, maintaining focus and techniques for negotiating conflict. A variety of activities were additionally designed to promote self-awareness, increase working memory, develop organizational facility, expand verbal working memory and encourage self-motivation, planning and problem solving.

In sum, the witness testified that STUDENT had made important gains throughout the 2021-2022 school year in all subject areas and in all her fundamental academic skills. She did not believe an integrated coteaching classroom was appropriate for the child, given her behavior management issues, ADHD and executive deficits. She opined that the child needed a far smaller pupil: personnel ratio in which she could receive an enhanced level of individualized support. Other than certain academic classes articulated in the IEP, STUDENT would receive no special education support for the remainder of the day. Given her sensory issues, self-directed behavior, executive deficits, risk for elopement, inability to understand cause and effect and self-regulation challenges, Ms. ADMINISTRATOR did not believe the Department’s educational planning was appropriate.

Indeed, it should be noted that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of transition issues, such as packing up materials, navigating the building efficiently and regaining focus, are marginalized. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented. Clearly, the delayed feedback, inherent within a larger integrated class, would impact negatively on a child whose deficits in executive function are wide-ranging and significant. P Exh. K at 5. For a student such as STUDENT, instruction -even within an integrated setting- advances at a pace which far outstrips her ability to keep up. As a result, the student is always struggling to develop foundation skills while others are moving on to more advanced materials.

I find, at the outset, that the program offered at SCHOOL correlates well with the student’s functional needs, as identified by credible witnesses. STUDENT is a child with an enormous array of dysfunctional behaviors, accompanied by emotional dysregulation. The child is functionally grouped in a classroom whose students reflect a similar profile. Specific measures are taken to encourage generalization of skills across personnel and environment. Both the Parents and SCHOOL personnel uniformly agreed that the child is making meaningful progress within the SCHOOL paradigm. Its methods and curriculum are based upon empirical research and its personnel are experienced with the use of behavior plans. A multi-sensory program and sensory diet with calming elements was implemented and the child has been very responsive to these measures. During the 2021-2022, the child required a great deal of support, none of which would have been offered through the Department’s IEP.

Since the implementation of SCHOOL’s multiple interventions, many of the child’s challenging behaviors have become more manageable. Through constant reinforcement, rotation of materials and repetition across environments, personnel have additionally been able to develop the child’s reading skills to include phonemic awareness, letter identification and sight word reading. SCHOOL has placed an emphasis on developing STUDENT’s attending skills and as a result, she has made progress in many areas.

During the 2021-2022 STUDENT continued to receive her mandated related services as articulated in the May 19, 2021 IEP. Given the above, I believe SCHOOL was an appropriate placement for the child during the 2021-2022 school year.

2. Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Finally, the evidence indicates that the Parent participated willingly in her daughter’s CSE convenes and communicated at length about her concerns. To their credit, she did so in the absence of hostility and negativism. The Parents authorized assessments and willingly exchanged reports and evaluations from SCHOOL. By letter dated August 18, 2021, Ms. C. provided the District with a 10-day written notice, memorializing their dissatisfaction with the District’s program. P Exh. C. Under these circumstances, I see no factors which would militate against the Parent’s equitable right to recovery.

Conclusions of Law

The Department of Education has not met its burden of providing STUDENT with a FAPE, consistent with Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. In contrast, the Parent has established both prongs two and three, referent to the cases cited, supra.. I have additionally reviewed the Parents’ income tax statements and find that relief pursuant to Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998) is appropriate. P Exhs. H, I, J.

Order

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

Within forty-five (45) days of the date of this Order, and upon the Parent’s submission of a duly executed Affidavit of Attendance, the Department of Education shall make direct payment of all tuition expenses to SCHOOL incurred by STUDENT during the 2021-2022 school year. This shall include direct payment to SCHOOL as well as reimbursement to the Parents of all expenses already paid to SCHOOL. This amount shall represent the Department of Education’s total liability pursuant to the Parents’ Due Process Complaint dated October 13, 2021.

SO ORDERED

Dated: January 22, 2023

Lynn B. Almeleh, Esq.

_____________________________________

New York State Certified 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.