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FINDINGS OF FACT AND DECISION
Case Number:
Student’s Name:
Date of Birth:
District: Hearing Requested By: Parent Date of Hearing: August 12, 2011
November 22, 2011
February 7, 2012 Actual Record Close Date: April 27, 2012 Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2011
Advocate — Student
Parents
School Psychologist, Chairperson’s Designee-CSE — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON NOVEMBER 25, 2011
Advocate — Student
Parents
LCSW, Chairperson’s Designee-CSE — DOE
School Psychologist-CSE (via telephone) — DOE
Assistant Principal- (via telephone) — DOE
NAMES AND TITLES OF PERSON WHO APPEARED ON FEBRUARY 7, 2012
Advocate — Student
Parents
Assistant Principal (via telephone) — Student
Advocate (via telephone) — Student
Chairperson Designee-CSE — DOE
I. INTRODUCTION - ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocate for the student and the parent in a due process complaint notice dated March 8, 2011. The primary issue to be determined at this hearing is whether or not the Department of Education (the “DOE”) shall be ordered to reimburse the parent for costs associated with the student’s unilateral private placement at The (“ ”) for the 2010/2011 school year (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. § 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
I was appointed by the DOE to hear this matter on March 11, 2011. In a letter dated March 25, 2011, I advised the parties of their rights and obligations under the New York Education Law and the Regulations of the Commissioner of Education of the State of New York (Ex. IHO-I). On April 11, 2011, a pre-hearing conference with the parties was held to clarify the hearing issues and establish dates for the completion of the hearing (Exs. IHO-I at 2, IHO-II). See 8 NYCRR § 200.5(j)(3)(xi). Hearings in this matter were held on: August 12, 2011; November 25, 2011; and February 7, 2012.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the hearing request, the student classified as (Exs. SD-1 at 1, SD-2 at 1, SD-4, SD-5, P-A).3 For the 2010/11 school year, the student attended the (Exs. P-A, P-C, P-D, P-G). The Commissioner of Education has not approved as a school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. SD-1, P-A). See 34 C.F.R. § 300.8(c); 8 NYCRR § 200.1(zz).
On April 8, 2010, the parent paid a deposit toward the student’s enrollment at for the 2010/11 school year (Ex. P-E).
As part of an April 19, 2010 evaluation, the student was administered the ”), on which he attained a Verbal IQ of ), a Performance IQ of ) and a Full Scale IQ of ). The discrepancy between the student’s Verbal IQ score and his Performance IQ score was described by the examiner as “significant” and indicative of rather than (Ex. SD-2 at 2, 4).
The student was also administered a set of subtests from (Ex. SD-2 at 2-4).
The examiner also noted that the student was ” which was attributed to “his ” (Ex. SD-2 at 3).
In an April 19, 2010 related service student progress report, the student’s speech/language therapist stated that the student:
[P]resents with a receptive and expressive language delay characterized by weak comprehension skills which impact his classroom performance. He displays difficulties in comprehension skills, specifically, finding the main idea, drawing conclusions, answering inferential questions and making predictions based on grade level stories. Expressively, (Exs. SD-1 at
4, SD-3).
The reported also noted that there had been “minimal progress . . . made due to [a] recent change in therapist[s].” The recommended that the student continue to receive therapy two (2) times per week for thirty (30) minutes per session (Ex. SD-3).
means a , such as stuttering, impaired articulation, a impairment or a voice impairment, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(11).
At a meeting held on May 26, 2010, the CSE developed an IEP for the student for the 2010/2011 school year. The CSE recommended an increase in the student’s recommended level of service from a general education program to a special class in a community school. The CSE also recommended that the student receive group therapy, two (2) times per week for thirty (30) minutes per session, and test modifications (Exs. SD-1 at 1-2, 10-12, SD-2 at 1).
In a July 14, 2010 Final Notice of Recommendation, the DOE identified I.S. 98 in Brooklyn as the student’s placement for the 2010/11 school year (Ex. SD-5).
In a letter dated August 18, 2010, the parent gave the CSE notice of her intent to make a unilateral placement of the student at at public expense for the 2010/11 school year (Ex. P-C).
IV. POSITION OF THE PARTIES
A. The DOE
The DOE offered the student a free appropriate public education for the 2010/2011 school year. was an inappropriate and for the student. The relevant equities also favor the DOE (Ex. IHO-XV).
B. The Parent
The DOE denied the student a free appropriate public education for the 2010/2011 school year. The CSE which developed the May 26, 2010 IEP for the student was not duly constituted in that it lacked the presence of a . The CSE also lacked adequate evaluative information on which to premise its findings on the levels of academic functioning. Lastly, the IEP goals developed for the student in the areas of , and were deficient (Exs. P-A, IHO-XVI).[4]
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General Legal Standards
Two purposes of the IDEA are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[5] See 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Board of Education of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
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. See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). While school districts are required to comply with all IDEA procedures, not all procedural errors render and IEP legally inadequate under the IDEA. See A.C. v. Board of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(I). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189. The statute ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of student with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130; see also P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), quoting Rowley, 458 U.S. at 192.
The student’s recommended program must also be provided in the least restrictive environment (the “LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(I), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132. Also, a FAPE must be available to an eligible student “who needs special education and related services, even though the [student] has not failed or been retained in a course or grade, and is advancing from grade to grade.” 34 C.F.R. § 300.101(c)(1); 8 NYCRR § 200.4(c)(5).
An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(I), establishes annual goals related to those needs, 34 C.F.R. § 300.320(a)(2); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985).
The burden of proof is 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. See N.Y. Educ. Law § 4404(1)(c).
B. CSE Membership
The parent argues that the CSE which developed the student’s May 26, 2010 IEP was not duly constituted in that it lacked the presence of a (Ex. P-A at 1-2). New York State Law provides that a CSE shall include “persons having knowledge or special expertise regarding the student, including related services personnel as appropriate, as the school district or the parent(s) shall designate. The determination of knowledge or special expertise of such person shall be made by the party (parents or school district) who invited the individual.” 8 NYCRR § 200.3(a)(1)(ix). Although the request by a school district for the participation of a student’s related services providers is to be encouraged, it is discretionary under State law and I find that the DOE did not violate any procedural requirements by not inviting the student’s speech/language therapy provider to participate. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-002 at 14-15 (SRO March 24, 2011). Further, the hearing record reflects that the student’s prepared an April 19, 2010 related service student progress report as part of the CSE’s reevaluation of the student which was incorporated into the student’s May 26th IEP (R. 51; Exs. SD-1 at 4, SD-3).
C. Adequacy of Evaluations
The parent alleges that the CSE failed to appropriately evaluate the student in his primary area of disability, i.e., (Ex. P-A at 2). An evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent that may assist in determining, among other things the content of the student's IEP. See 20 U.S.C. § 1414(b)(2)(A); 34 C.F.R. § 300.304(b)(1)(ii). In particular, a school district must rely on technically sound instruments that may assess the relative contribution of , in addition to physical or developmental factors. See 20 U.S.C. § 1414(b)(2)(C); 34 C.F.R. § 300.304(b)(3); 8 NYCRR § 200.4(b)(6)(x). A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and 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, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
A school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation, see 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4); however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree, see 34 C.F.R. § 300.303(b)(1); 8 NYCRR § 200.4(b)(4). A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. See 8 NYCRR § 200.4(b)(3).
I find that the CSE had adequate evaluative information of the student’s functional, developmental and academic needs upon which to premise its program for the student for the 2010/11 school year (Exs. SD-1 at 3-6, SD-2, SD-3). See Application of a Student with a Disability, Appeal No. 12-017 (SRO February 22, 2012). Prior to the May 26, 2010 meeting, the CSE secured a of the student and a related service progress report from the student’s (Exs. SD-2, SD-3). The progress report prepared by the was sufficiently comprehensive to identify all of the student's related service needs (Ex. SD-3). The student’s teacher also participated in the May 26th CSE meeting (Ex. SD-1 at 2).
D. Adequacy of IEP Goals
The parent alleges that the annual goals developed for the student did not adequately address his particular needs, especially in reading, math and (Ex. P-A at 2). An IEP must include a written statement of measurable annual goals, including academic and functional goals designed to meet the student’s needs the result from the student’s disability to enable the student to be involved in and make progress in the general education curriculum, and meet each of the student’s other educational needs that result from the student’s disability. See 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 C.F.R. § 300.320(a)(2)(i); 8 NYCRR §§ 200.4(d)(2)(iii), 200.16(3)(3). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee. See 8 NYCRR § 200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III); 34 C.F.R. § 300.320(a)(3).
The CSE’s IEP for the student for the 2010/11 school year established annual educational goals which were reasonably related to his educational deficits. The student’s IEP included annual goals in reading, math, and which were consistent with those educational deficits identified in the student’s evaluations and described what he could reasonably be expected to accomplish within a ten month period (Exs. SD-1 at 7-9, SD-2, SD-3).
E. Conclusion
Based on the foregoing evidence in the hearing record, I find that the DOE offered the student a FAPE for the 2010/11 school year. Having determined that the DOE offered the student a FAPE for the 2010/2011 school year, it is not necessary to reach the issues of whether the student’s private placement was appropriate or whether equitable considerations support the parent's tuition reimbursement claim and the necessary inquiry is at an end. See M.C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000); Walczak, 142 F.3d at 134.
V. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
(1) The parent’s claim for tuition reimbursement is DENIED; and
(2) The parent’s March 8, 2011 due process complaint is hereby DISMISSED. Dated: May 10, 2012
______________________________
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:jj
PLEASE TAKE NOTICE
Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.”
(8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.
Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 12, 2011
PARENT
A Due Process Complaint Notice/Impartial Hearing Request, 3/8/11, 5 pp. B Program Description ,
Undated, 1 p. C Letter to CSE from Parent, 8/18/10, 1 p. D 2010/2011 Enrollment Contract, E Affidavit of , 6/1/11, 1 p. F Final Notice of Recommendation, 7/14/10, with 11/1/10 Note from Parent, 2 pp. G Class Profile, Grade, Mrs. H 2010/2011 Daily Class Schedule, Grade , Undated, 1 p. I Teacher’s Report, Math, , Undated, 1 p. J [Reserved] K [Reserved] L Loan Agreement, 3/21/11, 1 p. M Proof-of-Payments, Various Dates, 2 pp.
DEPARTMENT OF EDUCATION
1 Individualized Education Program (IEP), 5/26/10, 12 pp. 2 Evaluation Report, 4/19/10, 5 pp. 3 Related Service Student Progress Report (Speech), 4/19/10, 1 p. 4 Final Notice of Deferred Placement, 5/27/10, 1 p. 5 Final Notice of Recommendation, 7/14/10, 1 p.
IMPARTIAL HEARING OFFICER
I Letter to Parties from IHO, 3/25/11, 5 pp. II Letter to Parties from IHO, 4/11/11, 2 pp.
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 7, 2012
IMPARTIAL HEARING OFFICER
III Confirmation of Extension, 4/11/11, 1 p. IV Confirmation of Extension, 6/9/11, 1 p. V Confirmation of Extension, 6/13/11, 1 p. VI Confirmation of Extension, 8/10/11, 1 p. VII Confirmation of Extension, 8/12/11, 1 p. VIII Confirmation of Extension, 10/19/11, 1 p. IX Confirmation of Extension, 11/15/11, 1 p. X Confirmation of Extension, 11/22/11, 1 p. XI Confirmation of Extension, 1/11/12, 1 p.
DOCUMENTATION ENTERED INTO THE RECORD FOLLOWING THE HEARING
IMPARTIAL HEARING OFFICER
XII Confirmation of Extension, 2/8/12, 1 p. XIII Confirmation of Extension, 2/27/12, 1 p. XIV Confirmation of Extension, 4/9/12, 1 p. XV DOE Closing Statement, undated, 8 pp. XVI Parent’s Closing Statement, 3/5/12, 12 pp.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] The parties moved to extend the case compliance date in this matter several times during the course of the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the parties’ need for additional time to present their available witnesses on the extensive issues raised in the parent’s due process complaint justified the delay in the resolution of the matter and was in accordance with the requirements of due process. Accordingly, requests for an extensions of the case compliance date were granted (R. 21-22, 90-92, 191-192; Exs. IHO-III, IHO-IV, IHO-V, IHO-VI, IHO- VII, IHO-VIII, IHO-IX, IHO-X, IHO-XI, IHO-XII, IHO-XIII, IHO-XIV). Following the last day of hearing, i.e., February 7, 2012, the DOE offered an Affidavit of sworn to on February 24, 2012, for entry into the hearing regard as rebuttal evidence. As the parent did not have an opportunity to cross-examine Ms. on the statements made in her February 24th Affidavit, see 8 NYCRR § 200.5(j)(3)(xii)(f), the affidavit was not received into evidence.
[4] In her closing statement, the parent raises, for the first time, allegations that the CSE erred in failing to recommend counseling for the student and that the offered placement, i.e., , was inappropriate (Ex. IHO- XVI at 5-6). At this point, it is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process compliant notice unless the other party agrees. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(i)(7)(b); R.B. v. Department of Educ. of City of New York, 2011 WL 437694, at *6-*7 (S.D.N.Y. Sept. 16, 2011); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *8 (S.D.N.Y. Aug. 27, 2010). As neither the absence of counseling from the student’s IEP nor the appropriateness of the recommended placement were raised in the parent’s due process complaint notice, I will not consider those issues now (Exs. P-A, IHO-XVI). See C.F. v. New York City Dep’t of Educ., 11 Civ. 00157 (LTS), 111 LRP 68797 (S.D.N.Y. Oct. 28, 2011).
[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.