Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226751

Student’s Name: [Redacted]

Hearing Requested By: Parent

District: [Redacted]

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: December 20, 2023

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

II. Overview The primary issue in this matter is the Parent’s demand for “compensatory education” for alleged District failures during the 2021-2022 school year (“SY”). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and . . . mould each decree to the necessities

2 of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. The Parent filed the complaint notice on June 2, 2022. (Ex. A). I was appointed as the IHO on June 3, 2022. A pendency hearing was held on March 13, 2023, and a pendency order was filed. A hearing was held across multiple dates. 1 The Parents introduced exhibits A-L into the record and called two (2) witnesses: the Board-Certified Behavior Analyst (“BCBA”) and the Parent. The District did not offer any exhibits, nor did they have any witnesses testify on its behalf.

a. Parent’s Position The Parents claim that the “2020 IEP”^[2] failed to offer a Free Appropriate Public Education (“FAPE”). (Ex. A-13). In the complaint, the Parents allege numerous procedural and substantive flaws. As a remedy, the Parents seek District funding for the following: a) Ten (10) hours 1:1 ABA at home b) One (1) hour 1:1 ABA PTAC at home c) Two (2) hours ABA BCBA supervision d) 1:1 health para e) SLP 3x1:1, 2x1:1 f) OT 3x1:1 g) PT 2x1:^[1] h) all for a 12-month school year.

i) Ten (10) hours of 1:1 ABA hours after school, to address toileting, communication, ADL, behavior, community integration and generalization.

j) One (1) hour of home-based Parent training per week.

k) Compensatory services, make up services and equitable additional services to make up for the lack of FAPE in the 2020-2021 school years as well as any delay in the provision of pendency services. These services should be sufficient to place [the Student] in the position he would be in if he had not been denied FAPE and/or her pendency rights had not been violated and should include ABA services, parent training and related services.

l) Speech, Auditory and visual Processing and Assistive Technology Evaluations.

m) Reimbursement and payment for all related transportation and other costs affiliated with the services requested above and for the services previously obtained for which reimbursement is sought. (Ex. A.20-21).

Note that I have not included any sought relief pertaining to pendency since pendency has already been established in this case.

b. District’s Position The District did not present a case, introduce evidence, or bring any witness to testify on its behalf.

c. Background

of the Case On August 16, 2021, a Committee on Special Education (“CSE”) meeting was held to develop an IEP for the Student.^[3] The Parent and the BCBA attended the meeting. (Ex. A-3). At the meeting, the Parent voiced her concerns, stating the following:

Parent was asked by CSE what her concerns were. Parent stated that she would like the recommendations from the evaluations/reports to be implemented on her daughter’s IEP, including a full-time 1:1 ABA program. CSE reiterated that DOE does not offer a 1:1 ABA program and eventually stated they would refer [the Student’s] case to CBST. Parent asked about [the Student’s] program in the meantime, since the CBST process could take some time, and reiterated that the recommendations of the evaluations/reports should be included on [the Student’s] IEP. (Ex. A-3).

The Parents received a placement offer from the District on August 11, 2021; however, the Parents assert that the IEP did not include all the services as they had been agreed upon during the CSE meeting. (Ex. A-4). The Parents filed the complaint notice on June 2, 2022. (Ex. A).

d. Legal Overview As a legal overview, it is useful to understand the legal framework of the Individuals with Disabilities Education Act (“IDEA”).

A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd.

Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2nd Cir. 2012).

In New York, the state has assigned responsibility for developing IEPs to local

Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y.

Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir.

2007). R.E., 694 F.3d 167 (2nd Cir. 2012). If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). R.E., 694 F.3d 167 (2nd Cir. 2012).

III. Whether the District Provided the Student a FAPE.

a. Legal Standard

i. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

ii. Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.

b. Analysis

I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice outlines several significant points of disagreement regarding the Student’s IEP:

a) The IEP team pre-determined the IEP, program, and placement recommendation. The result was announced without additional discussion, and the team members admitted they had gone through the options together and arrived at the proposal.

b) The DOE made unilateral decisions about an aspect of the program outside of the IEP meetings.

c) The IEP was not based upon sufficient reevaluations.

d) The Parent did not have sufficient input into the development and were not provided drafts to review.

e) The DOE did not draft the IEP at the IEP reviews. The IEP was drafted after the meeting, without the Parents.

f) The IEP does not adequately describe [the Student’s] strengths, weaknesses and the ways her disabilities impact her ability to make progress in the areas of academic performance, behavior, receptive and expressive language, social interaction, self-care, cognitive abilities, generalization, and other areas.

g) The IEP failed to include peer-reviewed research based methods, although those methods were legally feasible.

h) Many of the IEP goals were vague, not sufficiently measurable, did not include benchmarks, and were not individually tailored to meet [the Student’s] individual needs. In addition, they failed to sufficiently address the myriad of ways in which her disability impacts her academic performance, behavior, receptive and expressive language, behavior,

i) social interaction, self-care skills, cognitive abilities, generalization, and other areas.

j) The teams did not help the Parents understand the IEP process and thus they were not able to be adequate participants.

k) The DOE failed to conduct a functional behavioral assessment, functional behavioral plan or recommend any positive behavioral supports (or services to implement whatever supports they recommended).

l) The IEPs did not recommend an adequate amount of special education services, related services, accommodations, or supports.

m) The DOE did not base the IEPs and placements on legally sufficient evaluations. Nor did the team reevaluate [the Student] prior to recommending a change in her last agreed-upon placement. The only evaluations that the IEP teams had before them were related service progress reports. If the IEP team wanted to change [the Student’s] placement it had to conduct a n) legally sufficient reevaluation that justified the change.

o) The teams did not make decisions based upon [the Student’s] individual needs but instead made their decisions based upon blanket policies and practices.

p) The IEP teams was not properly constituted; upon information and belief, the team did not have the required members pursuant to 20 U.S.C. § 1414(d)(1)(B) and, if those individuals were present in name/title, they did not possess the required knowledge, training or independence to properly formulate a legal IEP.

q) The Parents did not receive adequate Prior Notices or notice of the IEP meeting before the review or Prior Written Notice after the review.

r) The Parents were not provided meaningful access in the development of the IEPs and the goals.

s) The evaluation, IEP, and placement process’ did not meet the standards for providing a FAPE to children with autism as set forth by the New York State Education Department in the Commissioner’s Regulations

Part 200.16.

t) Parent training was not offered.

u) The IEP team failed to consider assistive technology. (Ex. A.11-13).

This is the backdrop in which I weigh the District’s recommendations, mindful that the District has the burden of proof. In the present matter, the District failed to present witnesses. This coupled with the Parent’s presentation, I find that the District failed to meet its burden in showing that it provided the Student an individualized program, tailored to the Student’s individual needs.

In developing a student’s IEP, the CSE must consider the most recent evaluative date of the student. 20 U.S.C. § 1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii). Thus, the burden lies on the district to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEPs. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 110 (2d Cir. 2016). In L.O., the plaintiff alleged that the district committed multiple procedural errors in formulating each of the student’s IEPs, independently and cumulatively resulting in the denial of a FAPE for each school year. Id. at 110. The SRO and the District Court found that the district failed to meet its burden, in that it failed to demonstrate how the CSE determined the student’s program, leaving the court to speculate. Id. at 110. While the lower courts were correct in only looking to the evaluative materials in existence at the time of the CSE meetings, the Second Circuit points out that the courts ignored the plain language of the statute, which requires the court to consider whether the CSE actually reviewed such data. Id. at 110-111.

The court also voiced its disagreement with the district’s reliance on R.B. v. New York City Dept. of Educ., 589 F. App’x 572, 575 (2d Cir. 2014) (holding that a parent is precluded from contesting the absence of evaluative material during the CSE meetings because she could have raised the matter at the meeting). The court concludes that even if the parent could have objected the absence of evaluative materials or the CSE’s failure to consider said materials in formulating the student’s IEP, the district is not absolved of upholding its responsibilities imposed on it by Congress. L.O., 822 F.3d 95, 110, 111 (2d Cir. 2016).

As the court held in L.O., I too am left to speculate the CSE’s rationale for its decisions in creating the Student’s IEP. Thus, I find that the District failed to meet its burden in demonstrating that it provided the Student with a FAPE during the 2021-2022 SY.

IV.

Compensatory Education

I now look to the testimony of the Parents’ witnesses to establish a basis for the relief sought.

a. The Board-Certified Behavior Analyst – Testimony The BCBA, who testified on the Parents’ behalf, began her testimony discussing her credentials.

(Ex. L.1-2). Next, she provided some insight regarding Applied Behavior Analysis (“ABA”)

therapy:

ABA professionals observe and analyze behavior and then apply behavioral principles to change that behavior with the overall goal being to increase appropriate behaviors while also decreasing challenging behaviors that interfere with a child's ability to learn.

ABA is effective with everyone, but the field of research focuses on children with autism because that is where all the evidence and the research has been conducted. Generally, when someone talks about ABA, it is usually synonymous with children with autism.

Implementing ABA for a child with autism can vary, depending on the skill level and the type of student that you're working with.

In general, however, I will initiate an ABA program for a child by conducting an assessment to obtain information on where the child's current level of functioning is, and then, based on that, I develop specific programming goals that will teach the child specific skills that are necessary for him or her to learn and function in their daily environment.

The method of teaching ABA that [the Program] uses will vary, depending on the child’s learning style. (Ex. L-3).

The BCBA stated that she first met the Student back in 2019, when she conducted an observation of her at school. (Ex. L-5). The Parents were initially concerned about the Student’s lack of progress since she stopped receiving ABA services. (Ex. L-5). The BCBA shared her observation of the Student with the District, prior to attending the June 12, 2019 CSE meeting. (Ex. L-5). The BCBA recommended that the Student receive a full-time 1:1 ABA program. (Ex. L-5). When the BCBA asked why 1:1 ABA were not included in the Student’s IEP, the District stated that ABA is incorporated into the program at the District Specialized School. (Ex. L-11). The BCBA responded by pointing out that the District Specialized School does not offer 1:1 ABA (to which the District stated that they would mention an outside provider on the Student’s IEP). (Ex. L-11). Regarding the home-based ABA, the District informed the Parent that they could not add it because it “was something different.” (Ex. L-12). The Parent objected to the District’s dismissal of the ABA components. (Ex. L-12).

Since then, the Student has received full-time ABA at school, through an independent provider, and has demonstrated meaningful progress since the implementation of her full time 1:1 ABA program. According to her testimony: Progress has included targeting prerequisite skills that were not targeted via school instruction, as these skills are usually acquired at a younger age/grade, such as calendar skills, waiting when requested item or activity is not immediately available, expressive labeling of categories, actions, possessive pronouns, social questions, general knowledge information, etc. … Progress was also demonstrated in academic skills, ELA and Math, via the collaboration between ABA providers and [the Student’s] classroom teacher, []. (Ex. L.14-15).

The BCBA discussed some of the ways in which the ABA has addressed some of the Student’s

issues:

ABA providers targeted social skills throughout the school day and at home. [the Student] demonstrated greatest difficulty in less structured environments, such as physical education class, recess, family time, etc. ABA providers implemented rules/clear expectations during these less structured social settings, as well as provided a token economy system, prompting and prompt fading, differential reinforcement, task analysis, and modeling. (Ex. L-15).

This concludes the BCBA’s testimony.

b. The Mother – Testimony The Mother, who attended every CSE meeting for her daughter, testified on her own behalf. (Ex.

K-1). She noted that the Student made progress until she stopped receiving ABA. (Ex. K-2). The Mother stated that the Student has difficulty generalizing skills from one setting and one person to another and if her environment is structured, she is more efficient. (Ex. K-3).

Next, the Mother discussed some of the expert recommendations that she obtained for her daughter: According to the May/June 2021 neuropsychological evaluation, [the Student] functions at the kindergarten level in math and the 1st grade level in reading and writing. In regard to her learning style, [the Student] is most responsive to lessons with a structured kinesthetic component, such as songs with action movements. She requires 1:1 supervision most of the time for focusing and redirection, and [the Student] should be placed in a school setting that provides full time 1:1 ABA. (Ex. K-4).

In a June 2021 report, [the BCBA] recommendations stated that [the Student] continues to require an individualized educational program that includes, among others: a. Full-time 1:1 ABA intervention in a school setting, including the use of reinforcement, task analysis, repetition, errorless learning, prompting and prompt fading (limiting the use of verbal prompts as much as possible), visual supports, differential reinforcement, and incidental teaching procedures in order to acquire skills and use them appropriately across environments. A token economy system must be implemented to target [the Student’s] attention to task and completion of assignments/classwork.

b. 10 hours per week of 1:1 ABA intervention in her home and community settings.

c. 2 hours per week of 1:1 ABA Parent Training in their home and community settings.

d. 2 hours per week of ABA supervision hours to be provided by a BCBA in order to ensure collaboration and consistency across all services provided in the school and home settings.

e. Extended school year, including summer. (Ex. K-4).

The following year in May 2022 report, [the BCBA] recommended that [the Student] requires the continuation of an education program that includes: a. A special class setting of 8:1:1 within [the District Specialized School] with classmates who possess similar skill sets to [the Student].

b. Full-time individual health paraprofessional.

c. School-based related services of occupational therapy 3x30x1:1, physical therapy 2x30x1:1, and speech and language therapy 2x30x1:1 and 3x30x3:1.

d. Full-time school-based 1:1 ABA.

e. 10 hours per week of 1:1 home/community based ABA.

f. 2 hours per week of BCBA supervision.

g. 1 hour per week of home-based parent training and counseling in ABA. (Ex. K-4).

For the remainder of her testimony, the Parent discussed the District’s recommended placement and its shortcomings. (Ex. K.5-8). She concluded by stating, “I believe that [the Student] should be awarded compensatory services to make up for not receiving any ABA throughout the 2021-2022 school year, while we were participating in due process proceedings for previous years.” (Ex. K-9).

c. Conclusion

I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs.

V. Whether Compensatory Education is an Appropriate Remedy for Denial of a FAPE.

a. Legal Standard Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award 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"]; Parents of Student

W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

b. Concluding Remarks I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. As amplified throughout the record and in this finding of fact, the turning 5 processes caused numerous complications for the child. The District did not call any witnesses, nor did they enter any evidence into the record. The Parents provided an ample amount of expert advice advocating for the proper services. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.

It is therefore ORDERED,

1) The District shall fund directly/reimburse the provider/parent(s) for following services that have been provided during the 2021-2022 SY, upon the presentation of proper invoices for same: a) ESY basis: b) 10 hours 1:1 ABA at home c) 1 hour 1:1 ABA PTAC at home d) 2 hours ABA BCBA supervision e) 1:1 health para f) SLP 3x1:1, 2x1:1 g) OT 3x1:1 h) PT 2x1:1

2) Again, this matter shall be remanded to the CSE with the recommendation that they consider placement of the Student in a full-time ABA program; and

3) The District shall provide to the Parents reimbursement and payment for all related transportation and other costs affiliated with the services requested for the 2021-2022 SY upon presentation of invoicing for same.

Dated: December 20, 2023

Martin Kehoe, 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.

Footnotes

[1] A hearing was held across the following dates: July 28, 2022; August 18, 2022; October 24, 2022; December 2, 2022; March 13, 2023; May 1, 2023; May 17, 2023; and June 12, 2023.

[2] It is unclear which IEP the Parents were referring to in their complaint.

[3] The Student’s IEP include the following: (a) Full-time 1:1 ABA at school [District Specialized School]; (b) 10 hours 1:1 ABA at home; (c) 1 hour 1:1 ABA PTAC at home; (d) 2 hours ABA BCBA supervision; (e) 1:1 health para; (f) SLP 3x1:1, 2x1:1; (g) OT 3x1:1; and (h) PT 2x1:1. (Ex. A-3).