New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576097 - NYC: 228803

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

Home District: [REDACTED]

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

Request Date/Date Complaint Filed: 7/7/22

Date(s) of Hearing: 10/5/22, 11/10/22, 6/2/23

Actual Record Closed Date: 7/18/23

Date of Decision: 8/9/23

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Counsel”)

[REDACTED] (“Mother” or “Parent”)

[REDACTED]

(“Unilateral Placement Representative”)

For the Department of Education:

[REDACTED], Agency Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint filed on July 7, 2022 (“DPC"). (Ex. A)^[1] The DPC concerns the Student’s special education program for the 2022-23 school year (“School Year”). The IHO was appointed to this case on July 19, 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”) failing to: provide a FAPE, develop an appropriate Individualized Education Program (“IEP”), recommend an appropriate placement, recommend sufficient related services, and properly evaluate the Student. Specifically, the Parent presented the following arguments in the DPC and at the hearing: (Ex. A, Oct. 5 T 34-37, Nov. 10 T 118-21, June 2 T 138-42)

The Parent disagreed with an IEP developed by the District in March 2022 and a location letter sent in April 2022.

The District Placement (defined below) which consists of an 8:1:1 class in a District 75 school is primarily for students who are ambulatory, as well as autistic, which is inappropriate for the Student. Due to the Student’s inability to sense danger and his visual impairment, placing him in a class with ambulatory students who have intensive behavioral and communication needs based on the classification of autism would be inappropriate and would also present a health hazard.

The Student requires a program with an extended school day in order to implement his related services, as well as an extended school year. (Ex. A-5, D-47, E-66, L)

The [REDACTED] (“Unilateral Placement”) is an appropriate placement for the Student for the School Year.

The Student requires the following related services and supports that were not included in the District IEPs: Music Therapy, Hearing Education Services, Vision Education Services, 1:1 skilled private nursing services. Due to the Student’s inability to sense danger and his visual impairment, placing the Student in a class with ambulatory students who have intensive behavioral and communication needs based on the classification of autism would be inappropriate for the Student and would also present a health hazard.

The District Placement is only partially wheelchair accessible The Parent cooperated with the District by consented to evaluations and observations by DOE, attended the IEP meetings, attempted to get information about the proposed placement. Therefor equitable considerations support a full award.

The District failed to conduct a neuropsychological evaluation despite its own Standard Operating Procedures Manual recommendation of having or conducting a neuropsychological evaluation for students who have a [REDACTED]. The District conducted a psychoeducational evaluation which is insufficient to assess the Student’s needs. The DPC seeks the following relief: • Direct payment to the Unilateral Placement for the Student’s tuition and related services for the School Year. • Direct payment for special education transportation services with limited time travel, a 1:1 transportation nurse and paraprofessional, air conditioning, a lift bus; and a regularsized wheelchair; • Reconvene a new IEP meeting to address changes if necessary; • An order directing the District to fund an independent neuropsychological evaluation.

District Case:

The District waived their opening statement and did not present any evidence or witnesses. (Oct.

5 T 31) The District cross examined the witnesses and presented a brief closing statement. The arguments presented in the closing statement can be summarized as follows: (Nov. 10 T 117-18)

The testimony and evidence shows that the student was provided with the opportunity to have a free and appropriate education in the public schools.

The District IEP shows that the program is substantially similar to the Unilateral Placement program.

The Unilateral Placement Representative testified as to the similarities of the IEP, as well as the differences, and the disagreements that she had.

If there was more of an attempt made to allow the student to appear in the public schools, the mother would have found that the public school would have been appropriate for the student.

FINDINGS OF FACT

At the beginning of the School Year, the Student was an [REDACTED] year old boy with an [REDACTED] and related impairments who is described as sweet and bright. (Ex. F-5) The Student has attended the Unilateral Placement since September 2019 and has not attended public school. (Ex. A-3, L-3)

The Disability Classification indicated on the Student’s District IEPs is [REDACTED], and the following diagnoses are indicated therein: [REDACTED]. (Ex. C, F)

The Student’s early years included surgeries related to the physical implications of [REDACTED] and the cognitive effects of [REDACTED]. (Ex. F-5)

As a result of his medical conditions, the Student has significant impairments in cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psycho-social behavior; physical functions; information processing; and speech. (Ex. F 39)

The Student is [REDACTED]. (Ex. C-1). The Student receives [REDACTED]. (Ex. C-3)

The Student requires the assistance of both a full time 1:1 nurse and health paraprofessional. (Ex. C) He requires a paraprofessional throughout the day to assist in redirection, completing tasks, and maximize safety at all times as the Student may display noncompliant/negative behavior. (C 16) The 1:1 nurse ensures his health, safety, and well-being throughout the school day. (Ex. E 9) The nurse also provides assistance with [REDACTED]. (Id)

The Student is easily distracted by external stimuli and requires a significant degree of individualization of his curriculum (Ex. C 16, F 39)

The Student communicates most successfully using a total communication approach, including: vocalizations, facial expressions, body language, gestures, and low technology and high-technology augmentative and alternative communication devices, such as an iPad, to enhance and participate in his academic day. (Ex. C 5)

On March 17, 2021, the District conducted an IEP meeting and developed an IEP for the Student (“2021 District IEP”). (Ex. C) The Special Education Program and Services recommended by the 2021 District IEP is as follows for a twelve month school year:

SPECIAL EDUCATION PROGRAM: • 8:1+1 Special Class at D75 Specialized School, 35 times per week, 60 minutes • Other Considerations: Visual Impairment RELATED SERVICES: • Occupational Therapy, Individual service, 5 time(s) per week, 60 minutes • Physical Therapy, Individual service, 5 time(s) per week, 60 minutes School Nurse Services, Individual service, Daily, Full Time 1:1 • Speech Language Therapy, Individual service, 4 time(s) per week, 60 minutes • Speech Language Therapy, Group of 3, 1 time(s) per week, 60 minutes • Parent Counseling and Training, group, one time per month, 60 minutes

SUPPLEMENTARY AIDS AND SERVICES/PROGRAM MODIFICATIONS/

ACCOMODATIONS:

• Paraprofessional Health, Feeding, Ambulation, Safety, Group service, Daily Full time ASSISTIVE TECHNOLOGY DEVICES AND/OR SERVICES: • AT Services, Individual, one time per week, 60 minutes • Speech generating device with software, Individual, daily throughout the school day SUPPORTS FOR SCHOOL PERSONNEL ON BEHALF OF THE STUDENT: • Two-person transfer training • Training for vision adaptations and functioning • Seizure safety training • Training for assistive technology use • Training for tracheostomy care /precautions and procedures • group and individually w/new staff annually and w/new equipment 60 minutes PLACEMENT RECOMMENDATION: • NYC DOE Specialized School SPECIAL TRANSPORTATION: • Transportation from the closest safe curb location to school. • Adult Supervision – 1:1 Nursing Services • Vehicle and/or Equipment Needs – Lift Bus • Vehicle and/or Equipment Needs – Air Conditioning • Vehicle and/or Equipment Needs – Student uses wheelchair (Regular Size) • Other Accommodations – Limited Travel Time

On July 1, 2021, the Unilateral Placement developed an IEP for the Student (“2021 Unilateral Placement IEP”), which recommends the following program and services: (Ex. D)

SPECIAL EDUCATION PROGRAM/SERVICES:

• 12-Month Program • 8:1:1, 35 times per week • 1:1 Paraprofessional RELATED SERVICES: • Vision Education Services, 2 times per week, 60 Minutes, Individual, Push-In/Pull-Out • Hearing Education Services, 4 times per week, 60 minutes, Individual, Push In/Pull-Out • Speech Therapy 4 times a week, 60 minutes, Individual, Push in / Pull out • Speech Therapy, 1 time a week, 60 minutes, Group (max size 3), Push in/ pull out • Physical Therapy, 5 times per week, 60 minutes, Individual, Push-in/pull-out • Occupational Therapy, 5 times per week, 60 minutes, Individual, Push in, pull out • Assistive Technology, 1 time per week, 60 minutes Individual, Push in/ pull out • Music Therapy, 3 times per week, 60 minutes, Individual, Push-in/Pull-Out • Music Therapy, Group, 1 time per week, 60 minutes, Push in/Pull-Out • Parent Counseling Training, 1 time per month, 60 minutes, Individual

SUPPLEMENTARY AIDS AND SERVICES/PROGRAM MODIFICATIONS/

ACCOMMODATIONS:

• 1:1 paraprofessional and 1:1 nurse, Individual, Daily, Throughout the day, All environments ASSISTIVE TECHNOLOGY SERVICES: • Individual, Indirect, 1 time per week, 60 minutes VEHICLE AND/OR EQUIPMENT NEEDS: • Ac, Lift-Bus/Wheelchair Ramp, Wheelchair – Regular Sized • Other Accommodations – Limited Travel Time 90 Minutes ASSISTIVE TECHNOLOGY DEVICES: • Individual, Daily, Throughout the Day • AAC Device; iPad • AAC Wheelchair Mount • Switches • Switch Mounts • Computer • Computer Switch Interface • Software (list): HelpKidzLearn, • Tarheel Reader, Snap + Core • Adaptive Seating (list): • Wheelchair • Adaptive Seating: Alternative seating for classroom SUPPORTS FOR SCHOOL PERSONNEL ON BEHALF OF THE STUDENT: • Individual, group, Annually and as needed • Two-person transfer training • Training for vision adaptations and functioning • [REDACTED] safety training • Training for assistive technology use • Training for [REDACTED] care / precautions and procedures

The Unilateral Placement is a private, not-for-profit, and highly specialized special education program in New York City created for children who suffer from [REDACTED] disabilities. (Ex. L-2) All of the Students at the Unilateral Placement are classified as having either a [REDACTED] or multiple disabilities. (Nov. 10 T 63) Many are [REDACTED]. (Ex. L-2) The Unilateral Placement has a 12-month extended school-year calendar and offers an extended school day from 8:30 a.m. to 5:00 p.m.

(Id) Every student at the Unilateral Placement requires a 1:1 paraprofessional and many students require a 1:1 nurse. (Id)

On February 16th, 2022, the District conducted a psychoeducational evaluation of the Student. (Ex. G 2)

On March 14, 2022, the Unilateral Placement developed an IEP for the Student (“2022 Unilateral Placement IEP”), which recommends a substantially similar program as the 2021 Unilateral Placement IEP.

The 2022 Unilateral Placement IEP states: “An 8:1:1 placement in a NYC DOE specialized public school was considered for this Student and rejected by Parent and [the Unilateral Placement]. An 8:1:1 program would not provide sufficient support for Student’s highly intensive management needs. Student requires a smaller class ratio to remain focused to ensure all of Student's highly intensive management needs are met throughout the day. NYC DOE specialized 8:1:1 placements are for students on the Autism spectrum and would not be the appropriate peer group for this Student who suffers from severe impairments across multiple domains due to [REDACTED] or related disorder. Additionally, the NYC DOE specialized public school program does not offer the extended school day necessary to implement the related services as outlined in this IEP.” (D 47)

On March 15, 2022, the District convened to develop another IEP for the Student (“2022 District IEP”). Compared to the 2021 District IEP, the 2022 District IEP recommends an individual health paraprofessional instead of a group paraprofessional as recommended in the 2021 District IEP. (Ex. F-60) In addition, the section in the 2022 District IEP labeled “SUPPORTS FOR SCHOOL PERSONNEL ON BEHALF OF THE STUDENT” is blank. (Ex. F 60) Otherwise the 2022 District IEP recommends a substantially similar program as the 2021 District IEP.

On April 5, 2022, the District issued a Prior Written Notice (Notice of Recommendation) summarizing the program recommendations set forth in the 2021 District IEP, as well as a School Location Letter indicating that the Student’s placement is at P.S. 238 Anne Sullivan (“District Placement”). (Ex. G)

On June 15, 2022, the Parents entered into an enrollment contract with the Unilateral Placement for the School Year (“Enrollment Contract”). (Ex. H) The term “Base Tuition” as defined in the Enrollment Contract includes the cost of an individual paraprofessional, and school nurse as well as the academic programming. Base Tuition does not include “Supplemental Tuition”, which is the cost of related services, transportation paraprofessional, any individual nursing services or assistive technology devices and equipment.

On June 16, 2022, the Parents entered into a School Transportation Service Agreement with Sisters Travel and Transportation Services, LLC for the School Year (“Transportation Contract”). (Ex. I)

On June 17, 2022, the Parents issued a Ten Day Notice to the District for the School Year indicating that the Student will be attending the Unilateral Placement. (Ex. J)

On July 5, 2022, the District issued a letter which states the following: “The NYC DOE has determined that at this time your 10 day notice of unilateral placement claim is not appropriate for settlement. If you are still interested in pursuing a unilateral placement or program at the District's expense you must file a Due Process Complaint.” (Ex. K)

On August 11, 2022, the parties entered into a pendency agreement based upon the Findings of Fact and Decision for case no. 196218. (IHO Ex. A)

Witness Testimony: Unilateral Placement Representative

The Unilateral Placement Representative testified primarily regarding the appropriateness of the program at the Unilateral Placement, the Student’s special education needs, and the progress the Student has made at the Unilateral Placement. I credit the Unilateral Placement Representative’s testimony. (Ex. L, Nov. 10 T)

Mother

The Student’s mother testified regarding the Student’s medical conditions and special education needs. I credit the Mother’s testimony. (Ex. M, Nov. 10 T)

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 Residential 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 Residential 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 Residential 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.”

Parents have the right to have an independent educational evaluation (“IEE”) conducted at public expense if the parent expresses disagreement with an evaluation conducted by the District and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

ANALYSIS AND DECISION

The first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether it provided the Student a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the District did not provide a FAPE to the Student for the School Year because the District did not establish that the District Placement and 2022 District IEP were appropriate to meet the Student’s unique special education needs resulting from his severe medical condition and impairments for the School.

For example, the claims set forth in the District’s brief closing statement are not supported by any evidence or witness testimony. By comparison, the Parents presented evidence and witness testimony indicating that the District Placement would not be appropriate for the Student. The Unilateral Placement Representative testified that the Student has not attended public school because of his need for a more specialized environment and specialized support for his learning and for his medical safety. (Nov. 10 T 75)

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The Student has attended the Unilateral Placement since 2019 and has not attended public school. The Student’s program and related services at the Unilateral Placement are similar to those recommended by the District IEPs, including but not limited to an 8:1:1 class, 1:1 paraprofessional and nurse, PT, OT, SLT and parent counseling. However at the Unilateral Placement, the Student receives additional related services and supports not recommended in the District IEP, including vision education services, hearing education services and music therapy. In addition, the Unilateral Placement offers an extended school day. The evidence and witness testimony also indicates that at the Unilateral Placement the Student is placed in a more appropriate peer group relative to the District Placement.

Based on a preponderance of the evidence standard, I find that the Parent has presented sufficient evidence and witness testimony for purposes of establishing that the Student’s educational program at the Unilateral Placement for the School Year was appropriate insofar as it offered an educational program designed to meet the Student’s unique special education needs resulting from the Student’s severe medical condition and related impairments, and was reasonably calculated to provide an educational benefit. The District’s cross examination of the Unilateral Placement Representative is not sufficient to establish that the Unilateral Placement is not appropriate for the Student.

With respect to the Parent’s request for transportation services, I find that the transportation services set forth in the Transportation Contract are consistent with the special transportation recommendations on the 2022 District IEP, and the District did not otherwise object to this relief.

With respect to the third prong of the Burlington/Carter analysis, which considers the equities of the case, the Parent testified that she participated in the 2022 District IEP Meeting and expressed their disagreement with the District Placement. I find that the Mother’s decision to unilaterally enroll the Student at the Unilateral Placement was not unreasonable based on the Student’s severe medical condition and impairments, prior educational history, and safety concerns.

In conclusion, based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case favor the Parent.

Finally, with respect to the Parent’s claim for an independent neuropsychological evaluation, the DPC does not express disagreement with a specific evaluation conducted by the District, which is a prerequisite for an IEE claim. At the hearing, Parent Counsel stated that the DPC does not express disagreement with an evaluation conducted by the District because the evaluation conducted by the District was a psychoeducational evaluation, and not a neuropsychological evaluation. I find that the Student is not entitled to an independent neuropsychological evaluation at public expense because the DPC does not mention the psychoeducational evaluation conducted by the District and does not otherwise express disagreement with an evaluation conducted by the District.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby:

1) ORDERED THAT, the Student was not provided a FAPE for the School Year; and

2) ORDERED THAT, the District shall pay the for the Student’s placement at the Unilateral Placement for the School Year pursuant to the Enrollment Contract. The Unilateral Placement shall provide an itemization of Supplemental Tuition pursuant to the Enrollment Contract; 3) ORDERED THAT, the District shall pay for the Student’s transportation services for the School Year pursuant to the Transportation Contract. The Transportation Company shall provide an itemization of transportation services provided pursuant to the Transportation

Contract.

SO ORDERED.

DATED: August 9, 2023

/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

PARENT DATE DESCRIPTION NUMBER OF

EXHIBIT PAGES

D. 07/06/2022 Due Process Complaint A IH # 228803 8 2022- 2023 School Year 07/18/2022 Findings of Fact and Decision B IH# 210833 36 03/17/2021 NYC DOE IEP C 40 07/01/2021 Unilateral Placement IEP School Year 03/14/2022 Unilateral Placement IEP 2021-2022 50 pages

E. School Year 03/15/2022 NYC DOE IEP F 68 04/05/2022 Prior Written Notice G 6 06/15/2022 Unilateral Placement 2022-2023 69 pages

H. Enrollment Contract 2022-2023 School Year 06/16/2022 Transportation Agreement 7 pages

I. School Year 06/17/2022 Ten Day Notice 2022-2023 5 pages

J. School Year 07/05/2022 Determination Report K 1 11/03/2022 Affidavit of L Unilateral Placement 4 Representative 11/03/2022 Affidavit of Parent M 2 2022-2023 2 pages

DOE EXHIBITS

IHO EXHIBITS

A. Pendency Agreement dated 8/11/22 IHO

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.