NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
BACKGROUND
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about July 20, 2023. (Ex. 1). On August 23, 2023, the Parent filed an Amended DPC. In the Amended DPC, the Parent alleged that the New York City Department of Education (DOE) failed to provide the Student with a free appropriate public education (FAPE) for the 2023-2024 school year. (Ex. 2)
The Parent alleged as follows. The Student is [REDACTED] years old and has been diagnosed with autism spectrum disorder (ASD). The Student exhibits significant weakness in cognitive, language, motor, sensory processing, self-regulation, adaptive, and social-emotional skills. With a vocabulary of only 20 words and dependence on an EpiPen, the Student’s needs are complex and require a comprehensive, individualized approach to his education. While he received limited applied behavior analysis (ABA) therapy during early intervention, he requires continuous ABA therapy in and out of school for academic growth and social development. The Student was scheduled to start kindergarten for the 2023-2024 school year. The Parent listed an adapted intervention for minimally verbal students (AIMS) program near the family home as her preference, but the school placements offered by the DOE were in District 75 schools far away from the family home. The AIMS program is designed to cater to the educational needs of minimally verbal students with autism in a structured environment with a low student-to-teacher ratio, and individualized teaching strategies to enhance the cognitive and social skills of each student. The Parent requests placement of the Student in a school with the AIMS program, assignment of a paraprofessional to assist the Student with his handwriting issues and EpiPen use, a small class setting to meet the Student’s needs, a comprehensive handwriting evaluation, an assistive technology (AT) evaluation, administration of the Assessment of Basic Language and Learning Skills – Revised (ABLLS-R), refinement of IEP goals to reflect the Student’s current needs and progress, implementation of discrete trial teaching, monthly parent counseling sessions, and provision of an augmentative and alternative communication (AAC) device to facilitate the Student’s communication. (Exs. 1 & 2).
PROCEDURAL HISTORY
I was appointed on July 24, 2023. A prehearing conference was held on August 22, 2023. The Parent filed an Amended DPC on August 23, 2023, which was approved by me on August 29, 2023. (IHO Ex. I) A pre-hearing conference was held on the Amended DPC on October 3, 2023. On October 31, 2023, both parties appeared for the hearing. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. II) Both representatives made opening statements. The DOE submitted 10 exhibits into the record. Included in the DOE’s evidence was a direct testimony affidavit from the DOE School Psychologist. The Parent submitted 20 exhibits into the record. Included in Parent’s evidence were two direct testimony affidavits, from the Special Ed Teacher (Ex. O), and the Parent School Psychologist (Ex. P). The Parent give oral direct testimony. The Parent Representative cross-examined the DOE’s witness, and the DOE Representative cross-examined the Parent’s three witnesses. Both representatives made oral closings. (See October 31, 2023 Transcript)
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The DOE School Psychologist testified as follows. She holds a master’s degree in education/teaching of individuals in early childhood education programs and was self-employed for 13 years as a psychological/special education evaluator for students with a ASDs using ABA. She has been employed as a DOE school psychologist for the past three years. (DOE School Psychologist Aff. at ¶¶ 2-3). The DOE School Psychologist is familiar with the Student, having participated in the reconvene of the Student’s individualized education program (IEP) evaluation on July 26, 2023 for the 2023-2024 school year as the School Psychologist and District Representative. (Id. at ¶ 5). At the IEP meeting the Parent rejected the IEP team’s recommendation of a District 75 school and requested that the Student attend a community school as it was logistically easier based on the Parent’s work schedule. (Id. at ¶ 6). The IEP team advised the Parent that the Student would be better served within a District 75 school. (Id. at ¶ 7). The need for a paraprofessional was never mentioned at the IEP meeting. (Id. at ¶ 8). In order to qualify for a health paraprofessional, appropriate documentation from a medical professional would need to be provided certifying the need for a paraprofessional in addition to other qualifications. (Id. at ¶ 9). The AIMS program is a pilot program that began in May 2019 and supports children in grades K-2. Applications are accepted for students eligible for placement in a DOE school who are enrolled in pre-K (Turning 5s only), kindergarten, and first grade. (Id. at ¶ 10). There is only one school in the Bronx that has an AIMS program, and it can only service six students per grade. (Id. at ¶ 11). Eligibility for the program is determined by the AIMS clinical staff which conducts a comprehensive review of all available information. (Id. at ¶ 12).
The Parent testified as follows. The Student is minimally verbal, and was placed in early intervention starting in May 2020. In April 2021 he was approved for ABA services, and even with the lapse in his services the ABA therapist began working with him in May 2021, only a few weeks before he transitioned from early intervention to the Committee on Preschool Special Education (CPSE). (T p. 50 L 13-21). While attending the Preschool, the Student received occupational therapy (OT) and speech and language therapy (S/L) in a 12:1:2 classroom and did not receive his approved ABA services during preschool. (T p. 50 L 22 – p. 51 L 1). At the Student’s initial Turning 5 IEP meeting in May 2023, the Parent expressed concerns initially about a District 75 placement, and some concerns with the Student’s Preschool and preschool teachers and therapists. The Parent discussed her concerns with the behavioral portion of the Student’s program. The District Representative at the May 2023 IEP meeting presented the Parent with a parental preference form, where she could choose her preferred District 75 programs and locations. (T p. 54 L 6-21; Ex. 8). The District 75 placement received after the May 2023 IEP meeting was not on the Parent’s preferred list, and was way too far from the family home for the Parent to be able to get to or assist the Student if the need arose. (T p. 66 L 18 – p. 67 L 4). At the reconvened IEP meeting held on July 26, 2023, there was a discussion of the Student’s need for a paraprofessional. The Preschool coordinator read the Student’s most recent progress report at that time, including how he presents in the classroom and things that distract the Student. He needs an adult to walk him to his chair and play appropriately. He needs assistance to complete toileting and teacher support to stay organized, focus on tasks and stay actively involved. (T p. 52 L 17 – p. 53 L 8). At that time the District Representative indicated that based on the Student’s teacher’s report, he sounded like a child that needed a higher level of support and that it seemed he might need to have a one-to-one with him. (T p. 53 L 9-15). No paraprofessional was however assigned to the Student. (T p. 53 L 16-22). The DOE failed to appropriately place the Student since the beginning of the CPSE. His ABA services were not continued or enforced from early intervention. His May 2023 Turning 5 IEP meeting recommended a District 75 program without having a District 75 representative present to give accurate information pertaining to the placement process. The Student has regressed socially and emotionally in certain areas as a result of not being properly placed for kindergarten. (T p. 55 L 1-20). Based on the Student’s most recent evaluations and recommendations performed by the Special Ed Teacher and the Parent School Psychologist, the Student would benefit from the integration of ABA services in both home and school, receiving consistent interventions, enhancing parent counseling, obtaining an AAC device, and having a one-to-one paraprofessional. These recommendations are all key to helping the Student grow and succeed. (T p. 56 L 2-10). The Parent has researched and reached out to nonpublic schools that would benefit the Student and help support him properly. (T p. 56 L 14 – p. 57 L 5). There are nonpublic schools that offer ABA, OT, S/L and discrete trial learning that the Student really needs to help him grow and succeed, with curriculums specifically tailored for students with autism. (T p. 57 L 6-14). On cross-examination, the Parent acknowledged that after she filed her DPC and participated in two pre-hearing conferences, she received an email with a letter dated October 12, 2023 from the DOE stating that the Student had been placed at the District 75 School, which was the third preference listed on her parental preference form. The letter did not contain any information or details about the placement such as the student to teacher ratio. (T p.
57 L 23 – p. 63 L 6; Ex. 10). The Parent had visited that school previously. (T p. 63 L 13-16). She had placed the District 75 School on her parental placement form prior to obtaining representation in connection with her DPC and the Student’s initial Turning 5 IEP meeting in May 2023. (T p. 64 L 19-22).
The Parent School Psychologist testified as follows. She holds a master’s degree in school psychology and is a NYS certified school psychologist. She worked as a school psychologist representing school districts from 2016 to 2023, including the DOE from 2018 to
2023. Since July 2023 she has been working as an independent contractor school psychologist. (Parent School Psychologist Aff. at p. 1). The Student is diagnosed with ASD and presents with significant cognitive, language, motor, sensory processing, self-regulation, adaptive, and socialemotional delays. These deficits negatively impact his ability to participate in a general education curriculum without support. The Student requires a small, structured, specialized program that supports students with an autism classification. Teacher reports and related services providers have expressed that the Student benefits from 1:1 instruction and scaffolding. After observing the Student, the Parent School Psychologist found he demonstrates minimal language skills, and requires hand over hand prompting from the Parent to complete tasks. When the Student didn’t get what he wanted, he would demonstrate loud vocalizations or drop to the floor. The Parent had to constantly provide the Student with support, feedback, and scaffolding. (Parent School Psychologist Aff. at ¶ 1). The Student requires modifications in instruction in all areas and specially designed instruction in reading, writing, and math. He will require multi-sensory learning to support his visual, auditory, and tactile learning style. The Student requires repetition, 1:1, and very small group instruction in order to make minimal progress gains and not regress. The Student will most likely benefit from AT. (Id. at ¶ 2). The Student is easily distracted and demonstrates difficulties when in larger group settings. He benefits from having 1:1 teacher and related service provider support to minimize distractibility. Scaffolding is an important technique to use for the Student because of his ASD diagnosis. When he is given a chance to feel success, he is motivated to continue, and scaffolding decreases the risk of frustration and negative behaviors. (Id. at ¶ 4). ABA helps to increase language and communication skills, improve attention, focus, social skills, memory, and academics, and decrease problem behaviors. The Student likely made slower gains in these areas without the support of ABA therapy. (Id. at ¶ 5). The Student was mostly nonverbal when assessed in March 2023. He would sometimes make sounds/vocalizations but did not use gestures or words to communicate. The Student demonstrated difficulty following instructions, understanding task demands, and completing tasks as directed despite repetition, modeling, and prompting. The Student’s cognitive skills were assessed to be significantly below average, and his overall level of adaptive functioning was in the low range. His social-emotional development appears to be impacted by weaknesses in cognition and language. The Student’s autism index score indicates a very likely level of ASD with substantial support required. The March 2023 DOE psychoeducational evaluation states that the Student “continues to require the support of specialized instruction and classroom modifications to address the development of his preacademic skills as well as his ability to communicate and interact with others and the environment. Instruction should be multi-sensory and involve explicit modeling, visuals, verbal cues, guided practice, repetition, and positive reinforcement.” (Ex. D-8). The Student’s scores demonstrate that he did not make strong gains with the supports in place. (Id. at ¶ 6). ABA can help with the Student’s speech by building his vocabulary and developing programs and goals that help to teach the names of objects in his environment, how to ask for things, and expanding on language to make more complex sentences. When the Student becomes frustrated with a speech or motor task, ABA can help break down the task with smaller steps to reach the goal and decrease his frustration. (Id. at ¶ 7). An AT evaluation could help identify the programs or a specific device that could aid the Student with his language access, communication skills, and writing skills in order to support his progress. (Id. at ¶ 8). After reviewing the Student’s academic records, progress reports and IEPs, having conversations with the Parent, and observing the Student directly in his home via videos provided by the Parent, he makes gains from extensive repetition, 1:1 instruction, and small group work. (Id. at ¶ 9). The Student presents with significant global weaknesses and requires a supportive learning environment with a specialization with students with ASD. The Student wants to learn, and works well with routines, scaffolding, positive reinforcement, and 1:1 support. With a structured special classroom, related services including OT and S/L, and ABA therapy, the Student will be able to access the curriculum and make progress. (Id. at ¶ 10). The Parent School Psychologist recommends that the Student receive a 1:1 health paraprofessional to assist the Student’s asthma/fatigue during physical/motor tasks. (Ex. J-1).
The Special Ed Teacher testified as follows. She holds a master’s degree in early childhood education, with a concentration in ABA, and board certification in advocacy for special education. She has 10 years of experience in special education with specialization in ABA and has created IEPs for children with various special education needs. The Special Ed Teacher performed a comprehensive evaluation of the Student with recommendations for his special education needs. (Special Ed Teacher Aff. at p. 1; Ex. K). Administration of the ABLLSR Assessment would support effective and tailored interventions for the Student. The Student’s current IEP lacks crucial information about multiple domains of learning and development, including verbal imitation, motor imitation, reinforcer effectiveness, joint attention skills, and methods to ensure fluency of acquired skills. The Student’s current assessment is inadequate to develop a tailored curriculum for the Student. (Special Ed Teacher Aff. at ¶ 1). IEP goals should adhere to the principles of being specific, measurable, attainable, results-oriented, and timebound (SMART), and many of the current goals in the Student’s IEP appear to lack alignment with these guidelines. It is imperative to bridge the gap identified in the Student’s present levels of performance (PLOP) by introducing measurable goals for critical life skills like attending, feeding, and toileting. (Id. at ¶ 2). Data collection will allow the Student’s educators to tailor the curriculum specifically to his needs, is essential for developing effective behavioral interventions and support strategies and provides a basis for long term planning and setting realistic goals. Monthly parent meetings and daily parent updates via teacher/service provider communication would help establish a meaningful home-school connection. (Id. at ¶ 3). A monthly parent counseling session is recommended so that the Parent can learn advocacy skills which are essential in navigating the educational system and accessing appropriate services for the Student, rather than the twice yearly parent and counseling and training recommended in the Student’s IEP. (Id. at ¶ 4; Ex. 3-23). The integration of an AAC device holds immense potential for the Student’s communication abilities by enabling the initiation of communication and bridging existing gaps. By enabling the Student’s ability to communicate effectively, an AAC device would enhance his confidence and self-esteem, allow him to effectively participate in classroom activities, express preferences, and engage in social interactions. (Id. at ¶ 5). To provide consistent support, introduction of ABA services in both the home and school environments is recommended under the guidance of a BCBA to ensure a structured and effective approach to skill acquisition. Incorporation of discrete trial teaching (DTT) on a daily basis would offer clarity, repetition, and efficient data collection procedures, all of which are fundamental to the Student’s progress. The unified approach of integrating ABA services in both the home and school environments would ensure that the Student receives consistent interventions, reinforcement, and support, which would allow him to progress and enhance his overall quality of life. (Id. at ¶ 6). Based on her observations of the Student and review of IEP documentation and additional service reports, the Special Ed Teacher recommends that the Student be provided with a 1:1 paraprofessional for medical, personal care, and communication needs. A 1:1 paraprofessional would assist the Student in navigating the classroom, facilitate toilet and handwashing, provide support for initiating communication, and ensure the Student’s safety. (Id. at ¶ 7).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 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 IEP. See 20 U.S.C. § 1401(9). 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, 137 S.Ct. 988, 999 (2017).
An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,[1] and provide for the utilization of sufficient special education services.[2] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’” [3]
The DOE had the burden of proof on all matters at this hearing.[4] It had both the burden of production and the burden of persuasion on each claim put forth by the Parent.[5] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[6] Further, the SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” 7 Further, [U[nder State law as set forth above, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement. [8]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
On this record I find that the testimony of the DOE School Psychologist failed to adequately establish how the Student’s May 23, 2023 IEP (Ex. 3) recommending a 12:1+1 special class, with OT and S/L in a separate location, and parent counseling and training twice a year for 40 minutes, was reasonably calculated to enable the Student to receive an educational benefit or make progress in light of his circumstances. I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2023-2024 school year. Additionally, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2023-2024 school year. I credit the testimony of the Parent School Psychologist that the Student requires a small, structured, specialized program that supports students with an autism classification, with multi-sensory learning to support his visual, auditory, and tactile learning style, and that the Student requires repetition, significant 1:1 instruction, and very small group instruction in order to make minimal progress gains and not regress. (Parent School Psychologist Aff. at ¶¶ 1-2), and that the DOE failed to establish that the program recommended in the Student’s IEP would provide the small group and 1:1 instruction necessary for the Student to make progress and avoid regression. I further credit the testimony of the Parent School Psychologist and the Special Ed Teacher that based on the Student’s medical, personal care, and communication needs, the Student requires a 1:1 paraprofessional, and find that the DOE’s failure to recommend a 1:1 paraprofessional in the Student’s IEP resulted in a denial of FAPE for the 2023-2024 school year. (Special Ed Teacher Aff. at ¶ [7]; T p. 83 L 1 – p. 84 L 12). I do not credit the DOE School Psychologist’s testimony that the Student’s need for a 1:1 paraprofessional was not raised by the Parent at the IEP meeting, and reject her testimony that in order to recommend a health paraprofessional on the Student’s IEP, the Parent was first required to provide appropriate documentation from a medical professional. (DOE School Psychologist Aff. at ¶ 9). As recently observed by the NYS State Education Department State Review Officer (SRO), the DOE had sufficient information available by which to consider whether the Student required a 1:1 paraprofessional, but improperly placed the burden to obtain medical forms on the Parent, and the failure of the CSE to consider whether the Student required a 1:1 paraprofessional in light of his documented medical needs was a denial of FAPE. See Application of a Student with a Disability, Appeal No. 23-102, p. 15 (July 31, 2023).
I further find that the Parent established that based on the Student’s ASD diagnosis, he presents with significant cognitive, language, motor, sensory processing, self-regulation, adaptive, and social-emotional delays that requires a small, structured, specialized program that supports students with an autism classification, with 1:1 instruction and scaffolding. (Parent School Psychologist Aff. at ¶ 1). I further credit both the Parent School Psychologist and the Special Ed Teacher that in order to make progress in light of his ASD diagnosis, the Student requires an evidenced-based methodology such as ABA implemented in a consistent manner in both the home and at school. (Parent School Psychologist Aff. at ¶¶ 5-7; Special Ed Teacher Aff. at ¶ 6) Here I find that the May 23, 2023 IEP for the 2023-2024 school year was substantively flawed, as it failed to provide the Student with educational instruction specially designed to meet his unique needs. As the DOE failed to identify a program and placement that could provide the recommended evidenced-based instruction for students with ASD necessary for the Student to make educational progress, I find that the CSE should immediately convene and defer the Student’s case to the Community Based Support Team (CBST), to secure a placement for the Student in a 12-month NYS-approved nonpublic school (NPS) that provides a program of 1:1 instruction for students with ASD utilizing an appropriate evidence-based methodology such as ABA. I reject the DOE Representative’s argument that the only relief that could be awarded to the Parent under the DPC would be the Student’s placement in a DOE school with the AIMS program, a DOE program for kindergarten students with autism. (T p. 97 L 1-24). It was not disputed at the hearing that while the Parent sought the AIMS program for the Student as it would have been an appropriate program and placement, he did not receive one of the limited seats available in such program. (Ex. G) As the DOE Representative observed, I cannot order the Student’s placement in such a specific school program and placement where no seat is available (T p. 97 L 20-24). I find that the relief sought in the DPC encompassed the Parent’s request that the Student be placed in a program specifically designed for his unique needs based on his ASD diagnosis, and that deferral of the Student’s case to the CBST will provide the Student with a FAPE by placing him in a specialized education and related services program designed to meet his unique needs.
Full Time 1:1 Paraprofessional
I credit the Parent’s evidence that based on the Student’s medical, personal care, and communication needs, the Student requires a 1:1 paraprofessional. (T p. 52 L 17 – p. 53 L 9-15; Special Ed Teacher Aff. at ¶ 7; T p. 83 L 1 – p. 84 L 12). I also credit the Parent School Psychologist’s recommendation that the Student receive a 1:1 health paraprofessional to assist the Student’s asthma/fatigue during physical/motor tasks. (Ex. J-1). Accordingly the DOE must take the necessary steps to arrange for the Student to be provided with a full-time 1:1 paraprofessional for the 12-month 2023-2024 school year.
Monthly Parent Counseling and Training
I credit the Parent’s evidence as establishing that the Parent should receive monthly parent counseling and training sessions, rather than the twice yearly parent and counseling and training recommended in the Student’s May 2023 IEP, in order for the Student to receive consistent support, interventions, and reinforcement across both the home and school environments, and so that the Parent can learn the advocacy skills necessary for her to navigate the educational system and access appropriate services for the Student. (Special Ed Teacher Aff. at ¶¶ 4, 6).
DOE Evaluations
Based on the Student’s DOE psychoeducational assessment dated February 5, 2023, which showed that the Student ranked at less than 1% in communication skills at a low adaptive level (Ex. 4-3), I further find that the Student should have been evaluated by the DOE to determine his assistive technology (AT) needs as they related to his communication deficits, in that AT may be required to address the Student’s communication issues. I also credit the Parent School Psychologist that the Student will most likely benefit from AT. (Parent School Psychologist Aff. at ¶ 2). I therefore find that the DOE should immediately perform an AT evaluation of the Student by a qualified evaluator to determine if an AT device or services are warranted. The Parent’s request that the Student be provided with a AAC device to facilitate communication is dismissed without prejudice pending the results and recommendation of the AT evaluation.
I further credit the testimony of the Special Ed Teacher that administration of the Assessment of Basic Language and Learning Skills – Revised (ABLLS-R) Assessment would support effective and tailored interventions for the Student, as the Student’s current IEP lacks crucial information about multiple domains of learning and development, including verbal imitation, motor imitation, reinforcer effectiveness, joint attention skills, and methods to ensure fluency of acquired skills. (Special Ed Teacher Aff. at ¶ 1). As the Student’s current assessment is inadequate to develop a tailored curriculum for the Student, I find that the DOE should immediately administer the ABLLS-R Assessment by a qualified evaluator.
The Parent’s request that the DOE to perform a comprehensive handwriting evaluation for the Student is dismissed without prejudice. The Parent may renew such request directly to the CSE.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The CSE will immediately convene and develop an IEP and appropriate program for the Student that addresses his individual learning needs and create meaningful and measurable goals to address the Student’s disability in a 12-month program, and which includes at a minimum a full time 1:1 paraprofessional and monthly parent counseling and training, followed by immediate deferral of the Student’s case to the CBST to secure a placement for the Student in a 12-month NYS-approved NPS that provides a program of 1:1 instruction for students with ASD utilizing an appropriate evidence-based methodology such as ABA; and
2. The DOE shall immediately perform an AT evaluation of the Student by a qualified evaluator and, within 30 days of completion of the AT evaluation, the CSE will reconvene and revise the Student’s IEP to incorporate its recommendations; and
3. The DOE shall immediately administer the ABLLS-R Assessment for the Student by a qualified evaluator and, within 30 days of completion of the ABLLS-R
Assessment, the CSE will reconvene and revise the Student’s IEP to incorporate its recommendations.
SO ORDERED
Dated: November 28, 2023
_Philip Sturges_______
Philip P. Sturges
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] 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).
[2] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07- 018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[3] Cerra v. Pawling Cent. School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[4] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[5] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[6] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
[7] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.