Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (Hereinafter "Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parent

Record Close Date: November 14, 2023

Hearing Officer: Guljit Kaur Bains, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

REDACTED, Attorney

REDACTED., Neuropsychologist

REDACTED, Educational Tutor

REDACTED Co-director of REDACTED School

REDACTED, Parent Student

For the Department of Education:

REDACTED, ESQ., Attorney

On January 9, 2023, the parents (“Parent”), of the student filed a Due Process Complaint (“DPC”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education of the New York State Education Law. (PExhibit A) I was appointed as an impartial hearing officer (“IHO”) on December 2, 2023, to hear this case.

Lists of the documentary evidence submitted are appended to this Order.

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.

BACKGROUND AND POSITIONS OF THE PARTIES

The student is classified as a student with a disability. His classification and eligibility for special education support and services are not in dispute. The DPC raises issues regarding the 2021-2022 and 2022-2023 school years (“SYs”). (P-Ex. A) Pursuant to the DPC, the DOE failed to meet its obligation to identify and evaluate the Student as there was reason to suspect he had disabilities. The DOE violated the IDEA’s Child Find mandate 20 U.S.C. 1412(a)(3) and 34 C.F.R. 300.111. Child Find obligations for parentally placed students require similar activities by the DOE as those taken for public school students 34 C.F.R. 300.131.

The Parents maintain that the district has failed to offer the student a free and appropriate public education (“FAPE”) for the SYs. The Parent brought this hearing challenging the appropriateness of the Department of Education’s (“DOE”) recommendations for the student during the SYs.

The Parent seeks:

a. reimbursement for payments the Parent made towards the private placement at the York Preparatory School (“Private School”) (including the cost of the REDACTED Program) from September 2022 through June 30, 2023. 20 U.S.C. § 1415(i)(2)(C)(iii), §1439(a)(1), et al. Reimbursement of monies paid to date and any payments made in the future U.S.C. §1415(i)(2)(C)(iii), §1439(a)(1), et al. (P-Ex. A) b. Reimbursement for the cost of tutoring and other educational services necessitated by the DOE’s failure to identify the Student’s disabilities and provide him with equitable services for the 2021-2022 school year. §1415(i)(2)(C)(iii), §1439(a)(1). (P-Ex. A) c. Door-to-door special education transportation/suitable transportation to the chosen school as mandated by both New York State and Federal law. (P-Ex. A) The DOE is in opposition to parent’s request for tuition funding. The District submits that a FAPE was provided to the child for the SY’s in question. The DOE asserts that they can meet their burden on documents alone. See Appeals No. 23-090, (pp. 14, 21, 22; footnote 17); No. 23-005; No. 19-054 (pp 16-17); and No. 23-054 [footnote 8] for reference. “[T]here is no requirement that the district must meet its burden through its submission of specific categories of evidence” (Appeal No. 23-090 at p. 21).

The District argues that this is an initial referral case and the signed informed consent form was received on or about June 28th, 2022. The District is entitled to 60 school days thereafter before FAPE obligations commence. 8 NYCRR 200.4(e)(1). Accordingly, FAPE was not owed until September 22, 2022.

The District argues that “the Parent requests compensatory education for the 2021-2022 school year, on what appears to be a theory of a Child Find violation.” (P-Ex. A) District argues that there was no child find violation. The fact that a child was subsequently identified as a student with a disability does not necessarily mean that the child should have been identified under child find. Moreover, the child was in a private school during the 2021-2022 school year. (DPC, Ex. A-2) The equities do not favor an award for the 2021-2022 school year – because Parent was in possession of a neuropsychological evaluation dated September 29, 2021, but which was not submitted to the Department of Education until eight months later on May 27, 2022. (D-Ex. 3). The district further holds the parent to their prong 2 burden, and otherwise defers to the record for a balancing of the equities on prong 3. (DOE closing brief) The Parent submitted into evidence an extensive documentary packet (P-Ex.’s A-J3) consisting of: Ten Day Notice, York Prep-Program Description, Student Enrollment Contract Tuition Affidavit of Gordon Gardner, Student report card, schedule, Neuropsychological Evaluation and related documents. Parent submitted detailed testimony of four witnesses including a Neuropsychologist, Co-Director of REDACTED, at York Preparatory School, an Educational Tutor and the Parent. The Parent submitted a closing brief in support of their position.

The District submitted into evidence a documentary package (D Ex.’s-1-9) which consisted of an IEP dated 10/17/22, Prior Written Notice, Consent Form, and School Location Letter dated 11/10/22, Initial Referral Submission (including Neuropsychological Report of 09/29/21) Classroom Observation dated 10/17/22, Teacher’s Progress Report dated 8/27/22 Report Card dated 6/27/22, Psychoeducational Update Assessment dated 8/5/22, and a Signed Consent dated 6/28/22. The District submitted a closing brief in support of their position.

FINDINGS OF FACT AND DECISION

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]). Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-

092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Related to child find is the referral process. Upon written request by a student's parent, a district must initiate an individual evaluation of a student (see Educ. Law § 4401-a[1], [3]; 8 NYCRR 200.4[a][1][i]; [a][2][ii]-[iv]; [b]; see also 20 U.S.C. § 1414[a][1][B]; 34 CFR 300.301[b]).

The Parent asserts a Child Find Violation and seeks tutoring to compensate for said violation, the DPC states that “The DOE failed to meet its obligation to identify and evaluate the Student when there was ample reason to suspect he had disabilities, prior to the parents’ referral. The DOE thus violated the IDEA’s Child Find mandate with respect to the Student. 20 U.S.C. 1412(a)(3) and 34 C.F.R. 300.111. Child Find obligations for parentally placed students require similar activities by the DOE as those taken for public school students 34 C.F.R. 300.131.” The evidence in this matter does not support a finding that the DOE violated IDEA’s Child Find mandate. The Student in this matter went to a private school for 2021-2022. The Parent testimony does not support any failures on the part of the DOE with respect to the 2021-2022 SY. The parent testified that they were trying to deal with this student’s challenges on their own. (P-Ex. J) (Tr. 118-125) The evidence herein does not support that school officials overlooked clear signs of disability and were negligent in failing to order testing or have, "no rational justification for deciding not to evaluate the student.” A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" Here no evidence supported same. Furthermore, the Parent did not give the DOE a Neuropsychological evaluation that was conducted on September 17 to September 29, 2023, the parent submitted it to the District on May 27, 2022. (D-Ex. 4) (P-Ex. J) There is no evidence that the Parents contacted the District or that there would be a reason to suspect and address this Student’s disability. (Tr. 117-136)

Compensatory Services

The Parent requests compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE for 2021-2022 SY. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440,[E.D.N.Y. Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)). A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

While the violations alleged in the due process complaint notice are serious (see E. Lyme, 790 F.3d at 456 n.15; French, 476 Fed. App'x at 471; Somoza, 538 F.3d at 109 n.2, 113 n.6; Mrs. C., 916 F.2d at 75-76; Burr, 863 F.2d at 1078-79; Cosgrove, 175 F. Supp. 2d at 387), the evidence at hearing does not support a Child Find violation.

The Parent requests that the DOE reimburse the cost of Tutoring for the 2021-2022 SY. The Parent’s witness Ms. Amy Halperin testified (Tr. 7/19/23). The DOE did not cross examine and her testimony remains uncontroverted. She testified that she tutored this student 2 times per week for the 2021-2022 school year.

There was no testimony with respect to how many hours and what time frames during the 2021-2022 SY she tutored this Student. She testified she taught him twice a week at either $110.00 or $115.00, per hour, the testimony is unclear as to rate and the number of hours worked per week. (Tr. 205) There are also no receipts admitted into evidence.

Furthermore there is no evidence presented of a Child Find violation as cited above, therefore reimbursement for the 2021-2022 SY is denied.

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

“In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii). “ School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)). A Board of Education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007]. The Parent raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). There was no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations. The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. 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 (quoting Frank G , 459 F.3d at 364-65). The Provision of a FAPE “A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits” (Appeal No. 21-019 at p. 6, quoting Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 245 [2d Cir.7 2012]; Cerra, 427 F.3d at 192). “‘[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP’” (Appeal No. 21-019 at p. 6, quoting Walczak, 142 F.3d at 129, quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE.

Parent, on May 27, 2022, requested that they be provided with an Individualized Education Program (“IEP”) for the Student. Despite the request, the DOE did not contact the parents regarding an IEP meeting prior to the 2022-2023 school year. As such, an IEP was not developed for the Student in time for the 2022-2023 school year, which was a denial of FAPE. Moreover, the parents were not contacted regarding a placement for the 2022- 2023 school year until November 2022, also a denial of FAPE for the 2022-2023 school year. (D-Ex.’s 2, 3, 4.2) (P-Ex.’s A, B, J1) (Parent’s Closing brief) The DOE failed to meet its Prong 1 burden, the documentary case presented does not support a finding that the DOE provided a FAPE for the 2022-2023 SY. The IEP in evidence dated 10/17/22 is well past the date that the DOE should have held and created an IEP. (D-Ex. 2) The same applies for the PWN, Consent form and the Location letter in evidence which are dated 11/10/22. (D-Ex. 3) The DOE has not, therefore, met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The DOE did not present evidence challenging that the Parents’ contention that the Private School placement was appropriate program and placement for the Student.

The Parents presented extensive testimony and submitted substantial documentary evidence in support of their position that The Private School placement was appropriate. (P-Ex. B-J3) The testimony of the Parents’ witnesses and the Parents’ documentary evidence established that the Private School placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction. The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (P-Ex.’s A and B) (D-Ex. 4-2) (Parent’s Closing Brief) Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2022-2023 school year (including the cost of the REDACTED Program) from September 2022 through June 30, 2023. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2022-2023 Private School placement (including the cost of the REDACTED Program).

The cost of the Student’s 2022-2023 program at the Private School is $86,800.00 (Ex D). The Parent’s request for reimbursement of tuition. It is unclear if the $86,800.00 list in Exhibit D includes other costs. There is unclear language in regard to bookkeeping fees, graduation, returned check fees and voluntary scholarship fund fees. The request that the DOE be directed to reimburse the cost of the Student’s 2022-2023 Private School placement is therefore granted in that the reimbursement is for Tuition only, with proof of payment, is for tuition only be provided including (including the cost of the REDACTED Program) from September 2022 through June 30, 2023.

The Parent seeks reimbursement of transportation costs to and from the Private School for the 2022-2023 SY, no testimony or evidence was presented for such reimbursement or whether or not transportation was utilized. Based on the above:

1. Reimbursement for payments the Parent made towards the Private School (including the cost of the REDACTED Program) from September 2022 through June 30, 2023 is granted;

2. Reimbursement for the cost of tutoring and other educational services necessitated by the DOE’s failure to identify the Student’s disabilities and provide him with equitable services for the 2021-2022 school year is denied;

3. Transportation/suitable transportation to the chosen school as mandated by both New York State and Federal law is granted with proof of payment and proof of service..

ORDERED:

IT IS HEREBY ORDERED, that that the New York City Department of Education is directed to reimburse the Parent for payments the Parent made towards the Private School placement for tuition only at the Private School (including the cost of the REDACTED Program) from September 2022 through June 30, 2023 to be paid 45 days from this Order with proof of payment and for tuition and REDACTED Program only and not to exceed $86,800.00; ORDERED, that the Reimbursement for the cost of tutoring and other educational services necessitated by the DOE’s failure to identify the Student’s disabilities and provide him with equitable services for the 2021-2022 school year is denied; ORDERED, that, the New York City Department of Education is directed to reimburse for transportation costs for travel to and from the Private School in accordance with the New York State law with proof of payment and proof of service;

Dated: November 16, 2023

Guljit Kaur Bains

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

PARENT EXHIBITS

REDACTED

DOE EXHIBITS

REDACTED

Findings of Fact and Decision Case Number: 239012 17

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.