New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 608059 - NYC: 255209

FINDINGS OF FACT AND DECISION

Case Number: 255209

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: NYC DOE

Hearing Requested by: Parent

Request Date/Date Complaint Filed: 9/6/2023

Date(s) of Hearing: 11/27/2023

Actual Record Closed Date: 12/19/2023

Date of Decision: 12/20/2023

Hearing Officer: Paul J. DeSena

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act [hereinafter, “IDEA”] and Section 504 of the Rehabilitation Act of 1973. The Student was 5 years of age at the start of the 2023/24 school year and attending a DOE approved school. (Ex. A, at 3). In the Due Process Complaint [hereinafter, “DPC”], the Parent alleged that the Department of Education [hereinafter, “District” or “DOE”] failed to implement and fund the services required by the Student’s IEP for the 2023/24 school year, and also deprived the Student of a Free Appropriate Public Education [hereinafter, “FAPE”] for the 2022/23 and 2023/24 school years. (Ex. A).

The Parent requests a finding that FAPE has been denied for the above school years. (Hearing Tr., at 18). Additionally, parent requests an independent neuropsychological evaluation, an independent physical therapy evaluation, a functional behavioral assessment [hereinafter, “FBA”] and resultant behavioral intervention plan [hereinafter, “BIP”], continuation of the student’s pendency services for the remainder of the 2023/24 school year at the provider’s stated rates, and compensatory education for the District’s failure to award extended school year [hereinafter, “ESY”] services for the 2023/24 school year. (Hearing Tr., at 89).

As discussed below, I find that the District failed to provide the Student a FAPE for the 2022/23 and 2023/24 school years. Additionally, I find that the compensatory education that the Parent requests is reasonable and that the student is entitled to the requested IEEs and FBA.

PROCEDURAL HISTORY

The Parent filed this case on 9/6/2023. I was appointed to hear this case on 9/28/2023. I conducted a Pre-Hearing Conference [hereinafter, “PHC”] with the Parties on 10/24/2023. (See generally, PHC Tr.). A hearing was held on 11/20/2023. (See generally, Hearing Tr.). Both parties were represented by counsel (Id.).

At the hearing, the District introduced no exhibits, called no witnesses, crossed none of Parent’s witnesses, and waived their opening and closing statements. (See generally, Hearing Tr.). The Parents argued that the District denied the Student a FAPE for school years 2022/23 and 2023/24 and that the Student was entitled to the services and evaluations as described above. (See generally, Hearing Tr.). The Parents introduced exhibits A–E into evidence.^[1] (Id., at 16-18). Parent called two witnesses, the Student’s mother and the Director of the Child Care Center at which student receives SEIT services (both by affidavit). (Exs. D, E). Parent made an opening statement but waived their closing statement. (Hearing Tr., at 24-30). This order follows.

FINDINGS OF FACT

After reviewing the record generated at the hearing, I make the following findings of fact and determinations.

At the start of the 2022/23 school year, the Student was a REDACTED-year-old student who attended a REDACTED program. Prior to that school year, an IEP meeting was held, which the parent attended. (Ex. D, at ¶¶ 5, 12). According to that IEP’s present levels of performance, the CESP considered 7 assessments of the Student, all performed in 2021, including the Differential Ability Scales II [hereinafter, “DAS 2”], in order to measure intellectual functioning, the Vineland Adaptive Behavior Scales, 3rd Edition [hereinafter “VABS-3”] in order to measure adaptive behavior including communication, daily living, socialization, and motor skills, the CARS-2 assessment, the Preschool Language Scales 5th Edition [hereinafter, “PLS-5”], the Goldman Fristoe Test of Articulation 3 [hereinafter, “GFTA-3”], the Peabody Developmental Motor Scales II (for gross motor functioning), and the Peabody Motor Scales II (for fine motor functioning). (Ex. C, at 3-4). The Student scored in the low or below average range on the DAS 2, the VABS-3, and the PLS-5. (Id.). Additionally, the results of the CARS-2 were consistent with mild to moderate symptoms of autism spectrum disorder. (Ex. C, at 4). The Student scored a “moderate impairment” on the GFTA-3 and was rated as having at least a 25% delay on the Peabody Motor Scales II (for fine motor functioning). (Id.). Only the Peabody Motor Scales II (for gross motor functioning) came back with results rates as “normal” for the Student’s age. (Id.). No other evaluations were recommended as a result of this IEP. (Ex. C).

Additionally, the Student’s IEP for that year reported that the Student “does not talk to others about things of interest or [realize] when something needs to be explained in order to follow what he is saying;” “tends to throw tantrums such as crying, hitting, and throwing things,” which occur when the student did “not get his way or when he [transitioned] from one activity to the next;” and that the Student “had difficulty self-regulating his emotional reactions and he also had difficulty self-soothing.” (Ex. D, at ¶ 9). Accordingly, the 7/1/2022 IEP recommended 2:1 SEIT services 4 hours per day, 1:1 speech language therapy, occupational therapy, and physical therapy twice per week for thirty minutes per session. (Ex. C, at 12-13).

At the start of the 2023/24 school year, the Student was REDACTED-year-old student who attended a community REDACTED program. Prior to that school year, on 3/29/2023, an IEP meeting was held, which the parent attended. (Ex. D, at ¶¶ 12-13). None of the assessments listed in the 2022 IEP were listed with the Student’s present levels of performance, and no new assessments were listed. (Ex. B). The Student’s present levels of performance on the 2023 IEP note that the Student took a toy from a peer and became “upset when the peer tried to take it back,” that the “SEIT…frequently [had] to sit alongside [the Student] as sometimes he may want to destroy other children’s creations or may hit his peers out of impulsivity,” that such behaviors were “spontaneous,” that the student “requires frequent reminders and prompting to focus on the task at hand,” that his fine motor skills were judged to be “below age expectancy,” and that “concerns were raised regarding [the Student’s] gross motor functioning as he often trips and loses balance” and that the Student needed “assistance when walking up the steps.” (Ex. B, at 1-4). No other evaluations were recommended as a result of this IEP. (Ex. B). The 3/29/2023 IEP recommended an Integrated Co-Teaching Classroom at a DOE non-specialized school, 2:1 Counseling, Occupational Therapy, and Speech Therapy once weekly for 30 minutes per session, and 1:1 speech therapy and occupational therapy once weekly for 30 minutes per session.

The Director of the Student’s Child Care Center testified that, during the 2023/24 school year, the Student’s SEIT provider reports that the Student “struggles across various academic areas and presents with global delays,” that the Student “continues to struggle in all areas of development,” and “continues to face challenges in achieving age-appropriate milestones.” (Ex. E, 12, 19-20). The Director reports, however, that the Student has nevertheless made progress. (Ex. E, at 18).

CONCLUSIONS OF LAW AND ANALYSIS

Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 [2d Cir. 2014]).

A. FAPE

The IDEA provides that children with disabilities are entitled to a 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”) (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]).

Furthermore, a district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. (20 U.S.C. § 1414[b][3][B];0 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. (34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix] [emphasis added]).

In the instant case, it is uncontroverted that, in connection with the 7/1/2022 IEP, the results of the CARS-2 were consistent with mild to moderate symptoms of autism spectrum disorder. (Ex. C, at 4). Additionally, that IEP reported that the Student “does not talk to others about things of interest or [realize] when something needs to be explained in order to follow what he is saying;” “tends to throw tantrums such as crying, hitting, and throwing things,” which occur when the student did “not get his way or when he [transitioned] from one activity to the next;” and that the Student “had difficulty self-regulating his emotional reactions and he also had difficulty self-soothing.” At the very least, this suggests that, as of the date of the CARS-2 assessment, the Student should have undergone an evaluation for autism, and that the District’s failure to even evaluate for such a global disability might very well have deprived the Student of programming that would have better addressed his needs.

Furthermore, the 3/29/2023 IEP makes plain that many of the Student’s socio-emotional difficulties had not been remediated by the program recommended by the 2022 IEP. The Student’s present levels of performance on the 2023 IEP note that the Student took a toy from a peer and became “upset when the peer tried to take it back,” that the “SEIT…frequently [had] to sit alongside [the Student] as sometimes he may want to destroy other children’s creations or may hit his peers out of impulsivity,” that such behaviors were “spontaneous,” that the student “requires frequent reminders and prompting to focus on the task at hand,” that his fine motor skills were judged to be “below age expectancy,” and that “concerns were raised regarding [the Student’s] gross motor functioning as he often trips and loses balance” and that the Student needed “assistance when walking up the steps.” (Ex. B, at 1-4). Despite all of this, the Student’s 3/29/2023 IEP placed student in an ICT class without any 1:1 support, despite evidence in their own present levels of performance that student not only benefitted greatly from such 1:1 support throughout the day, but that such support was necessary in order to keep the Student and his peers safe from his spontaneous, destructive behavior.

Based on the totality of the evidence, I hold that the District failed to meet its burden of proof as to whether it provided the Student with a FAPE for school years 2022/23 and 2023/24. Notably, the District failed to present any documents, call any witnesses, cross-examine any of Parent’s witnesses, or even make an opening or closing statement. According to the Supreme Court, “a reviewing court may fairly expect [public] authorities 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 [2017]). Despite this, the substantive inappropriateness for the Student of the District’s IEPs listed above went entirely unexplained and unmitigated. Accordingly, for the above reasons, I hold that the District failed to offer the Student a FAPE for the 2022/23 and 2023/24 school years.

B. Compensatory Education

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]). 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]). Compensatory education can serve as a “replacement of educational services the child should have received in the first place”, and any award “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]” (Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”]).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent to compensate for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. (Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 [7th Cir. 2015] [citing cases]). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. (Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 [D. Minn. 2022], citing Indep.

Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 [8th Cir. 2019]).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE did not introduce any evidence regarding appropriate relief, but rather, effectively conceded that the Student was entitled to the following services for the remainder of the 2023/24 school year: 1:1 SETSS services 4 hours per day, 1:1 speech language therapy, occupational therapy, and physical therapy twice per week for thirty minutes per session. (Ex. C, at 12-13). Though the services in the 2022 IEP call for 2:1 SETSS services for the Student, I find that, given the nature of Student’s spontaneous conduct towards himself and other students, the testimony from the Director of the Student’s child care center that the Student benefits from 1:1 instruction, and the District’s failure to contest – at all – the Parent’s entitlement to this compensatory relief, that being1:1 SETSS with a provider of parent’s choosing at the provider’s stated rate is reasonable.

Additionally, the Parent requested that the Student be awarded compensatory education for services not provided during the 2023 extended school year for which the IEP of 3/29/2023 never provided. State regulations require that students “shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression” (8 NYCRR 200.6[k][1]; see 8 NYCRR 200.1[eee]). “Substantial regression” is defined as “a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.” (8 NYCRR 200.1[aaa]). While it is unquestioned that the District failed to carry its burden on and did not contest this issue, awards of compensatory education may not be made on what is essentially a District default, but rather must be supported by the record. On this latter point, the decision in Application of a Student with a Disability, Appeal No. 23-019 states:

“An outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-

12 [D.C. Cir. 2005] [rejecting “lump sum” grant of tutoring as a compensatory remedy for a multi-year denial of FAPE])…Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it would amount to a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting that “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”]). Thus, rather than relying solely on the district's failure to present an argument or evidence regarding a compensatory award, this decision will review each of the IHO's findings regarding compensatory education to determine if they were a sufficient and appropriate award based on the evidence in the hearing record.” Application of a Student with a Disability, Appeal No. 23-019.

In the instant case, a search of the record reveals no testimony regarding the Student being at risk of either “substantial regression” or requiring an “inordinate period of review” at the beginning of each year. (See 8 NYCRR 200.1[aaa]). That said, the last agreed-upon IEP of 7/1/2022, upon which the pendency services in this proceeding were based, notes explicitly that the student “was recommended to receive services during the months of July and August to prevent the regression of skills acquired during academic year.” (Ex. C, at 14). Additionally, the management needs in that IEP note that the student requires “[a]dditional time for newly presented materials,” suggesting that the Student already has difficulty processing new curricula. (Ex. B, at 5). Accordingly, I find that the Parent’s request for compensatory education in the amount of services that would have been provided during the 2023/24 summer session is reasonable, as it is based upon an agreed upon IEP, and as it would address one of the central needs of the Student.

C. Request for IEEs, an FBA, and a BIP

The Student requests, in their DPC, a neuropsychological IEE, a physical therapy IEE, an FBA, and an accompanying BIP. (Ex. A, at 6). For the reasons that follow, and while I decline to find that, as a matter of law, the Student is entitled to any of these additional evaluations or assessments, I nevertheless exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with all of the requested assessments.

If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. (8 NYCRR § 200.5[g][1]). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either 1) ensure that an IEE is provided at public expense; or 2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv] [emphasis added]). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. (See 34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]; see also A.H. v. Colonial Sch. Dist., 2019 WL 3021232, at *3 [3d Cir. July 10, 2019]). Additionally, both federal and State regulations provide that “[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees.” (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]).

While, in the instant matter, Parent is not entitled to any IEE according to the above provisions, not least because the prime issue here is that there are no evaluations with which the Parent has ever disagreed (Ex. A), I find, as described below, that the record supports the provision of a neuropsychological IEE, a physical therapy IEE, an FBA, and an accompanying BIP.

a. Neuropsychological IEE

As to the neuropsychological IEE, the record states that, in connection with the 7/1/2022 IEP, the results of the CARS-2 were consistent with mild to moderate symptoms of autism spectrum disorder. (Ex. C, at 4). Additionally, that IEP reported that the Student “does not talk to others about things of interest or [realize] when something needs to be explained in order to follow what he is saying;” “tends to throw tantrums such as crying, hitting, and throwing things,” which occur when the student did “not get his way or when he [transitioned] from one activity to the next;” and that the Student “had difficulty self-regulating his emotional reactions and he also had difficulty self-soothing.” At the very least, this suggests that, as of the date of the CARS-2 assessment, the Student should have undergone an evaluation for autism, and that the District’s failure to even evaluate for such a global disability might very well have deprived the Student of programming that would have better addressed his needs.

Accordingly, I exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with a neuropsychological IEE.

b. Physical Therapy IEE

As to the physical therapy IEE, the record states that, in evaluations that took place in 2021, the Student was rated as having at least a 25% delay on the Peabody Motor Scales II (for fine motor functioning), but that the Peabody Motor Scales II (for gross motor functioning) came back with results rated as “normal” for the Student’s age. (Ex. C, at 4). The 3/29/2023 IEP, however, states that the Student’s fine motor skills were judged to be “below age expectancy,” and that “concerns were raised regarding [the Student’s] gross motor functioning as he often trips and loses balance” and that the Student needed “assistance when walking up the steps.” (Ex. B, at 1-4).

Accordingly, since the Student’s fine motor difficulties have persisted for the past three years, and since there are, as of the Student’s most recent IEP, questions about the Student’s gross motor functionality, I exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with a physical therapy IEE.

c. FBA and BIP

8 NYCRR § 200.1(r) defines a “functional behavioral assessment” as “the process of determining why the student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.” Additionally, 8 NYCRR 200.1(mmm) defines a “behavioral intervention plan” as “a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior.”

The Student’s 7/1/2022 IEP stated that the Student “tends to throw tantrums such as crying, hitting, and throwing things,” which occur when the student did “not get his way or when he [transitioned] from one activity to the next;” and that the Student “had difficulty self-regulating his emotional reactions and he also had difficulty self-soothing.” (Ex. D, at ¶ 9). The Student’s present levels of performance on the 2023 IEP note that the Student took a toy from a peer and became “upset when the peer tried to take it back,” that the “SEIT…frequently [had] to sit alongside [the Student] as sometimes he may want to destroy other children’s creations or may hit his peers out of impulsivity,” that such behaviors were “spontaneous,” and that the student “requires frequent reminders and prompting to focus on the task at hand.” (Ex. B, at 1-4).

Because the Student’s more destructive behaviors, such as hitting peers or destroying their creations, are done spontaneously or impulsively, an FBA and BIP makes sense to attempt to address, or at least ascertain, the root causes of these behaviors and give school staff a plan to deal with them. Accordingly, I exercise my discretionary authority pursuant to 8 NYCRR § 200.5[g][2] and award the Student with an FBA and accompanying BIP.

ORDER

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

1. The District shall fund a bank of 120 hours of 1:1 SETSS services, 6 hours of 1:1 speech language therapy, 6 hours of 1:1 occupational therapy, and 6 hours of 1:1 physical therapy at a provider of Parent’s choosing at the provider’s stated rate; the time limit of this award is limited only by the Student’s eligibility for special education services in the State of New York, and the recipient of the award on behalf of Student may include Parent, Grandparent, guardian, future guardian, or Student;

2. The District shall fund 4 hours of 1:1 SETSS services per day, 2 sessions weekly of 1:1 speech language therapy at 30 minutes per session, 2 sessions weekly of 1:1 occupational therapy at 30 minutes per session, and 2 sessions weekly of 1:1 physical therapy at 30 minutes per session, with providers of parent’s choosing at the provider’s stated rates, for the remainder of the 2023/24 school year.

3. A physical therapy IEE shall be completed at a reasonable market rate with a provider of the Parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

4. A neuropsychological IEE of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

5. A functional behavioral assessment (FBA) of the student shall be completed at a reasonable market rate with a provider of the parent’s choosing. Within 35 days of receipt by the DOE of an invoice for services rendered, the DOE shall directly fund the provider for the IEE.

6. After the IEEs and the FBA are completed, the CSE shall reconvene within 30 days and consider the findings of these IEEs and the FBA in crafting goals, recommendations, and a behavioral intervention plan for the student.

SO ORDERED.

DATED: 12/20/2023

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 A – REDACTION IDENTIFICATION PAGE

Term Used In FOFD Redacted Information

Student REDACTED

Parent/Guardian REDACTED

Parent Attorney/Representative REDACTED

District Attorney/Representative REDACTED

NYC DOE Approved Public School REDACTED

District REDACTED

Director of Student’s Child Care Center REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 9/6/2023 (6 pages)

B. Individualized Education Program 3/29/2023 (23 pages)

C. Individualized Education Program 7/1/2022 (16 pages)

D. Parent Affidavit: REDACTED 10/25/2023 (6 pages)

E. Provider Affidavit: REDACTED 11/1/2023 (6 pages)

DOE EXHIBITS

1. N/A N/A (N/A pages)

IHO EXHIBITS

I. N/A N/A (N/A pages)

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.