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FINDINGS OF FACT AND DECISION
Case ld:
District Case Number: 174653
Student’s Name:
Date of Birth:
Hearing Requested By: Parent
Dates of Hearing: August 22, 2018
September 18, 2019
September 20, 2019
September 24, 2019
Actual Record Closed Date: October 8, 2019
Hearing Officer: Jeffrey Silverson, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 22, 2018
For the Student:
ESQ., Attorney
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 18, 2019
For the Student:
ESQ., Attorney
ESQ., Attorney
parent
For the Department of Education:
District Representative
school Psychologist (Via Telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 20, 2019
For the Student:
ESQ., Attorney
ESQ., Attorney
parent
For the Department of Education:
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 24, 2019
For the Student:
ESQ., Attorney
ESQ., Attorney
parent
Ph.D. Director (Via Telephone)
school Administrator (Via Telephone)
For the Department of Education:
District Representative
school Psychologist (Via Telephone)
|. PROCEDURAL HISTORY
On July 2, 2018, a due process complaint (DPC)1 was filed on behalf of ("Student”) against the New York City Department of Education (“DOE”) alleging the denial of a free and appropriate public education (“FAPE”) and seeking tuition payment for a unilateral parent placement at the (“School”) for the 2018-2019 school year (“SY”), in addition to pendency there. Three days later, on July 5, 2018, I was appointed as the Impartial Hearing Officer regarding the matter.
On August 1, 2018, the remainder of the mandatory resolution period (8 NYCRR §200.5(j)(2)) elapsed.
After a hearing was held on September 21, 2018, I issued a corrected interim order on pendency calling for the Student to remain at the , and also be provided 275 hours of private tutoring at a rate not to exceed $125.00 an hour, all as a temporary entitlement at DOE expense.
The following summer, on June 17, 2019, an amended DPC was submitted, for which a second mandatory resolution period (8 NYCRR §200.5(j)(2)) concluded on July 11, 2019 with a partial agreement. A telephonic pre-hearing conference pursuant to the Individuals with Disabilities Education Improvement Act (I.D.E.1.A.) was then held on July 25, 2019. The parent is represented by , Esq. and at hearing also by , Esq., from , Inc., while the Department of Education (“DOE”) is represented by ;
Representative. During the conference, it was made known to me that the case was not likely to fully settle. Subsequently, on September 18, 2019, a hearing pursuant to the Individuals with Disabilities Education Improvement Act (1.D.E.1.A.) was begun to decide matters raised in the due process complaint beyond a pendency issue. 20 U.S.C. §1415 (f). By the time of the date of this Finding of Fact and Decision, twelve (12) extensions to the case timeline had been issued in accordance with the Commissioner's Regulations at 8 N.Y.C.R.R. §200.5(j)(5)(ii) and 34 C.F.R.§300.515(c). See Exhibits I-Xll.
After neither party chose to submit written closing statements, the record was closed on October 8, 2019 upon receipt of a hardcopy of the September 24, 2019
' See 20 U.S.C.§1415(b) (7) (B). hearing transcript. Appended to this decision are lists of the persons in attendance at the hearings, documents received in evidence, and a statement regarding the right to appeal. See 8 NYCRR & 200.5(j)(5)(v).
ll. PRELIMINARY FACTUAL BACKGROUND
At the time of the 2019 hearing dates?, . was . Fora number of years, she had been attending a non-public school that has been approved by NYS. See Exhibit D-3 Within a neuropsychological evaluation conducted when she was , she was diagnosed with a language disorder and a specific learning disorder. Exhibit C-14 Her nonverbal cognitive capacities were said to be an area of “relative strength” with her full scale IQ being in the low average range. However, due to a “pervasive language disorder” academics were said to be “extremely challenging” for her. Exhibit C at 4, 13-14
Within a ten day notice letter, which described a purported critical need for multisensory instruction in reading and spelling, the parent notified the DOE Chairperson, that she had arranged for what she labeled a “unilateral placement”?[3] of her daughter at the School for a 12-month school year. Exhibit A-1 Significantly, as will be discussed below, there was an IEP meeting that was held during the hearing week - on September 19th, 2019 - for the 2019-2020 SY at issue. Tr. 29 However, while testimony has been taken regarding some of its parameters, the actual IEP from that meeting has not been offered into evidence.
lll. POSITIONS OF THE PARTIES
The Parent is seeking an IEP calling for placement at the ; including bus service to and from the School for the 2019-2020 extended school year, plus the Student’s breakfast and lunch on school days. The DOE, has countered by taking the position during hearing that its September 20, 2019 IEP*, which called for a 2 The August 22, 2018 hearing date dealt with a pendency issue, and not the core of the amended DPC.
3 See my discussion and ruling below regarding the concept of “unilateral” placement in this matter.
4 While the meeting was held on September 19, 2019, the IEP was completed the following day on September 20, 2019. Tr. 51 12:1 placement in a community school (see Tr. 47) circumvented any need for to be bused and schooled at . Finally, I note that while neither party submitted a written closing argument, only the parent chose to offer a closing statement on the record.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Legal Framework and Standard
This case involves a disagreement between the parties over the provision of FAPE, so a look at pertinent law will be a necessary jumping off point. | begin with two seminal Supreme Court decisions.
The underlying intention of the Individuals with Disabilities Education Improvement Act (IDEIA)® (20 U.S.C. §§ 1400-1482) is to provide children with disabilities a FAPE. A foundational Supreme Court decision, Rowley, in defining what it meant, held that the IDEA does not require states to “maximize the potential of each handicapped child commensurate with the opportunity provided non-handicapped children.” It does set a floor, however, and holds that a State furnishes a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Board of Education v. Rowley 458 US 176, 203 [1982].
In determining whether an IEP complies with the IDEIA, courts follow a twostep analysis. In addition to a substantive inquiry as to whether the IEP furnishes educational benefit, as referred to above, courts will initially examine whether there were procedural violations of the IDEIA. ALE. v. New York City Dep't of Educ., 694 F.3d 167. Indeed, the Supreme Court and Second Circuit have emphasized the importance of the procedural provisions found in the IDEA. "[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” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir.
5 Although the Individuals with Disabilities Education Act (1.D.E.A.) was amended in 2004 in the |.D.E.1.A., the cases cited herein remain authoritative. 2009]).[6]
Then, a couple of years ago, in Endrew F. v. Douglas Cnty. Sch. Dist. Re-7, 137 S. Ct. 988 - the Supreme Court in a unanimous decision, which resolved a split within the Circuit Courts - revisited and reshaped its early substantive standard enunciated within Rowley. Without reversing its initial delineation of what constitutes an appropriate offering by a school district to a child within a general education environment receiving special education services, and without clarifying what constitutes a “meaningful benefit’, it addressed the appropriate treatment of a child within a special education setting, and added that while an IEP need not provide a maximal benefit to the child, it must offer more than a de minimus one. Specifically: "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. id., at 999. In other words, the Court emphasized progress for the individual child given his or her unique needs. “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." (citations omitted) /d. Furthermore, “[t]he adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Thus the Court - as in its earlier Rowley decision — once again leads us to an individualized fact intensive inquiry, albeit from a different perspective, which is a focus by IEP teams on the individual child and whether appropriate progress is being made in light of that child’s unique, and often evolving circumstances.’[7]
A threshold tool in providing a FAPE is a written, individualized education program (IEP) that is tailored to the unique needs of the handicapped child. Indeed, the Second Circuit has emphasized the importance of the IEP by stating that the Central School District Board of Education 297 F.3d 195, 197 (2d Cir. 2002) (internal citation omitted).
In the seminal case of Burlington, the Supreme Court held that in an appropriate situation, retroactive tuition reimbursement to parents was allowable under the Act. To determine whether it was allowable, it formulated a three-part examination of what is required to be shown. The three parts, or what are often referred to as “prongs” are whether: (1) The program offered by their school district was inadequate or inappropriate; (2) The program selected by the parent was appropriate; and, (3) If equities supported the parent’s claim. School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985). See also, Florence County School District v. Carter, 510 U.S. 7 (1993). Should a parent fail in either of the initial two prongs, the inquiry terminates at that point and reimbursement is denied. /d.
Then, more than two decades after Rowley, the Supreme Court put the burden of persuasion in an administrative hearing upon the party seeking relief. Schaffer v. Weast, 546 US 49, 53 (2005). However, a couple of years later, the New York State Legislature reversed that obligation, and placed the burden of production and persuasion upon the school district, except as regards the portion of a case dealing with a unilateral private placement by parents, where they are tasked with the burden to demonstrate the appropriateness of their private placement. (See Educ. Law §4401[1][c], as amended by Ch. 583 of the Laws of 2007); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
However, in the matter at hand, the parent is seeking prospective tuition payment to the School, and as | emphasize below, this is also not a case where the parent is seeking removal of the Student from an established placement.
The DOE failed to offer an appropriate program to A board of education must offer a FAPE to each student with a disability residing in its school district that requires special education services or programs. See 20 U.S.C. § 1412(a)(1)(A); N.Y. Educ. Law §§ 4402(2)(a), (b)(2). However, at hearing, parent counsel stressed that the DOE had failed to provide a timely IEP for the 2019-2020 SY, and that when belatedly offered, it was not appropriate for the Student's needs. First, I find it clear that one was not timely offered. For the IEP in which the DOE offered an extended school year for 2019-2020 was dated September 20, 2019 (Tr. 52) when it should have been offered by the start of that extended school year®,[8] or by July 1, 2019.[9] See Tr. 94 I therefore find that the CSE failed to have an IEP with attendant placement ready for the Student at the outset of the 2019-2020 SY, much less the 2019-2020 extended SY, and that this omission alone impeded the student's right to a FAPE and 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). Additionally, I further agree with the parent that the September IEP was not substantively appropriate, as discussed directly below.
District representative, Ms. , who conducts psychoeducational assessments, attended the September IEP meeting, and testified for the DOE that due to the Student's academic struggles - including “significant deficits” in reading and math - the Team recommended a community school with a 12:1 classroom setting that would include related services; though, she could not specify what exactly those related services were. She also did not describe why such a setting would be appropriate for ., other than to say that it fit the profile of . who is struggling academically.'[10] Tr. 47-49
Countering that recommendation was Parent witness Dr. , the Director for the who testified that she provides evaluations and consultation to families wno have
Tr. 75
children with disabilities. Tr. 54,57 Her assessment of . called for a different and unlike what was offered in the September IEP - what I find to be an appropriate classroom setting.
For while agreeing with the DOE witness regarding the Student having a weakness in reading and math, her plan of remediation was more closely aligned with the personalized instruction called for in Rowley, supra, and more in tune with the Student’s unique, and often evolving circumstances, as required in Endrew F., supra. More specifically, Dr. — who had reviewed a recent psychoeducational evaluation of the Student, as well as her DOE records - disagreed with the appropriateness of a bare-boned 12:1 placement"’, and in her “clinical opinion” instead called for a multisensory learning environment that included intensive remediation with sufficient individualized educational supports attuned to the Student’s specific needs. Without such a more sophisticated classroom setting, which would also include similarly placed peers, Dr. did not foresee . making “measureable progress.” Tr. 63-67 | agree, and find that such a bare-boned 12:1 placement without the in-depth strategies voiced by Ms. impeded the student's substantive right to a FAPE and caused a deprivation of educational benefits. 8 NYCRR § 200.5(j)(4)(i).
“Prong 2”
In addressing the burden that the Parent must meet to satisfy prong 2, the Second Circuit disseminates a detailed outline to help decide it.
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
11 She testified that she had worked with “lots” of kids in 12:1 classrooms and in community schools and had had the opportunity to observe in them. Tr. 75 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). Further, the private school need not be state approved nor employ certified special education teachers. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]. The measure of whether a parent’s unilateral placement is appropriate under the IDEA is similar but not identical to the standards applied to the DOE’s proposed placement. See A.D v. N.Y. City Dep’t of FEduc., 690 F. Supp. 2d 193 (S.D.N.Y. 2010). The issue in sum is whether at the time of placement in the private school, the placement was reasonably calculated for the child to receive individualized educational benefit. Frank G., supra.
was an appropriate placement for . albeit not a unilateral one
To explain why she believed that would offer benefits for her daughter's educational needs, the parent presented three witnesses who demonstrated to me that is indeed an appropriate placement for her. More specifically, Dr. testified that . who in addition to specific learning disabilities in reading, writing and math had a language disorder diagnosis, that extended to both receptive and expressive language skills, and:
[She] needed to be surrounded by peers who presented similarly to her in terms of, not only her learning needs, but also her cognitive strengths. She needed intensive remediation as part of her curriculum.
She needed appropriate pacing of instruction, opportunity to work with staff that were trained to work with students with her similar profile, and .. she needed educational supports to be really individualized to her needs.” Tr. 66 Finally, Dr. testified that while she has not observed students in situ at , she has worked with children who have gone there, and been in contact with its staff and administration. see) «= Ms.
, the director of admissions at added that the School instructs its students in a “multisensory style, with opportunities for auditory, visual, and kinesthetic learning, to address reading, which is utilized in all subjects. Tr. 86 The outcome of such a method is that . has made “significant progress across the board.” Tr. 89 Ms. testimony is reinforced by the Minutes of the 1/18/18 CSE Meeting taken by the NYC DOE where I note the principal stating that . was making “steady progress” there. Exhibit 8-2 | agree, and find that pursuant to what we traditionally view in this field as a “prong 2” case as discussed in Burlington, supra, that the parent has succeeded in sending her child to an appropriate placement. I therefore find that based on information accessible to the parent at the time of placement, that would be expected to continue to provide educational instruction specially designed to meet the unique needs of ., and thus would certainly appear to be appropriate for her daughter. However, and significantly, when viewed from a more basic perspective so-called prong 2 in this instance, becomes more of a phantom prong. For, as noted above, the law reads: “except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.“ (emphasis added) Educ. Law §4404[1][c], supra Yet, ina corrected interim order on Pendency, dated September 21, 2018, I noted that an IHO in an unappealed Findings of Fact and Decision, dated December 16, 2017, had found - without objection from the DOE at the pendency hearing - that a placement at the had been provided for the Student by the DOE through a P1 letter. See Exhibit D; Tr. 5-7 Based on that, I ordered that commencing on July 2, 2018, (in addition to 275 hours of private tutoring), she was to remain there as a temporary entitlement at DOE expense. Additionally, Ms. testifed that ., who is currently in the 6" grade had been attending since she was in the third grade. Tr. 94'2 Consequently, in the case at hand, . was not taken out of a DOE placement and unilaterally moved into a parental one. Instead, the opposite was the case. For there has been no evidence presented at hearing that the Student had been attending any placement other than since a P'1 letter,
12 Within a Findings of Fact and Decision dated December 16, 2017, an IHO found that . was attending the for the 2017-2018 SY through a P11 letter, and that the DOE was paying her tuition. Exhibit D-3 Indeed, according to the parent, her daughter has been attending since the 2016-2017 SY. See Parent Exhibits |-2-3, J-2 and DOE Exhibit 5-2. as early as June 14, 2016 was given to the parent. (See Exhibit D-10) Thus, it is the District's intended placement of the Student within its recent IEP into a 12:1 class in a community school that is the proposed voice of change. Therefore, pursuant to the State Education Law cited above, the burdens of proof and of going forward must remain with the DOE. Since, I have already found above that the DOE change is not appropriate and fails to offer .a FAPE, then by that finding alone my inquiry into that issue is concluded. Therefore, even if I had decided that at the time of the Student’s placement into the 2019-2020 extended school year that was not reasonably calculated for her to receive individualized educational benefit, it still would have been the District's responsibility to locate an appropriate placement, and until that happened, the Student's parent would not have been charged with an ongoing payment responsibility to So, while I have found above that iS an appropriate placement for the Student, I do not believe that such a finding is even necessary because the unilateral placement at issue in this matter is not , but the DOE placement of the Student into a 12:1 community school pursuant to its September 20, 2019 IEP. Since as noted above, the DOE has not met its statutory burden of proof in that regard, and since the parent has no such burden - though as discussed above she would have met if necessary — and due also to my finding directly below that equities do not disturb that failure, I find that is to remain at the School, and its tuition is to be funded as it has been in prior years by the DOE.'?[13] The Equities lie with the Parent
With respect to equitable considerations, the IDEIA allows that tuition reimbursement may be reduced or denied when a Parent fails to raise the appropriateness of an IEP in a timely manner and inform the school district of their intent to unilaterally place the child in a private school, fails to make their child available for evaluation by the school district, or upon a judicial finding of unreasonableness with respect to the actions taken by the Parent. 20 U.S.C. §1412[a][10][C]fiii]; M.C. v. Voluntown Bd. Of Educ. 226 F3d 60, 68 (2d Cir.2000) See, Burlington, supra. However, none of those factors apply here. Indeed, the DOE failed to have an IEP in place for the 2019-2020 school year until September 20, 2019, over two months into the extended school year at issue. Further, the DOE has not claimed that the parent failed to cooperate with the recommendation process, or failed to make her child available for evaluation. While a parental Ten-day notice which called for a continuation of schooling at was dated August 21, 2019, which post-dated the beginning of the extended 2019-2020 SY at , | reiterate that the parent had no current IEP to review or contest. Thus, weighing all equities in the balance, I find that they fall heavily on the side of the parent, and do not in any way disturb my finding that . is to remain at the for the 2019-2020, and that funding for that schooling is to be the responsibility of the DOE.
V. Other Issues
The scope of an impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues or allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are deemed abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9
With that in mind, I have considered all other requests and claims by the parties and find them to be without merit or insufficiently asserted. See T7.B. v. Haverstraw-Stony Point Cent. Schl. Dist., 2013 WL 118479 (S.D.N.Y. 2013) citing Singleton v. City of Newburgh, 1 F.Supp.2d 306, 312 (S.D.N.Y. 1998), claim abandoned where alleged in the complaint but not raised elsewhere in the record. For instance, while the amended DPC asked for the Student's breakfast and lunch on school days, and also for yellow bus transportation to and for the school, I did not find that asserted during hearing; however, since I am ordering that she remain at for the 2019-2020 SY, | would gather that those meals and aforementioned bus transportation will be provided anyway, without special request.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
As found by me within the above decision, I hereby order The New York City Department of Education to thoroughly review it, and then promptly prepare an IEP calling for the continued placement of . at the at District expense, which is to include all required meals and bus service to and from the School for the 2019-2020 extended school year. Should there be any tuition currently owed to the School for the aforementioned extended SY, I order that it also be promptly paid by the District.
Dated: October 15, 2019
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of the decision, the parent and/or the school district has a right to appeal the decision to an SRO under Education Law Section 4404 and the IDEA. Wf either party plans to appeal the decision, a notice of intention to seek review must 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 must be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party must file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the OSE within two days after service of the request for review is complete. The rules of procedure for appeals before a SRO are found in Part 279 of the Requiations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at the Office of State Review website (http://www.sro.nysed.gov).
DOCUMENTATION ENTERED INTO THE RECORD ON August 22, 2018
PARENT
B Impartial hearing request, 7/2/18, four pages
D Findings of fact and decision, 12/16/17, 11 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON September 24, 2019
PARENT
A Ten-day notice, 8/21/19, 3 pages
B Already in evidence.
C Neuropsychological reevaluation, 10/23/18, 19 pages
D Already in evidence.
E Letter to , postmark 8/2/18, one page
F No exhibit (Letter skipped over)
G | EP, 1/18/18, nine pages
H No exhibit (Letter skipped over) | Amended hearing request, 6/17/19, five pages
J Ten-day notice, 8/21/18, 3 pages
DEPARTMENT OF EDUCATION
None
DOCUMENTATION ENTERED INTO THE RECORD ON September 25, 2019
- Though offered for identification on September 24, 2019
Appointment letter, 711/19, 1 page
CWB=ONDOP|D
psychological reevaluation 7/18/19 7 pages
Social history update 7/18/19 2 pages
CSE meeting notice, 7/24/19, three pages
Ten-day notice letter, 8/21/19, three pages
Draft IEP, undated, 15 pages
IEP, 1/18/18, 25 pages
CSE 3 meeting minutes, 1/18/18, two pages
Prior written notice,2/14/18, five pages
>© © School location letter, 2/14/18, two pages —_ —_ Prior written notice, 6/5/18, five pages
— NO School location letter, 9/5/18, two pages
IMPARTIAL HEARING OFFICER (Entered on various dates) st»:
| Order: Compliance Date Extension 8/22/18 1 page ll Order: Compliance Date Extension 10/12/18 1 page
Ill Order: Compliance Date Extension 11/14/18 1 page
IV Order: Compliance Date Extension 12/12/18 1 page
V Order: Compliance Date Extension 01/11/19 1 page
VI Order: Compliance Date Extension 02/11/19 1 page
Vil Order: Compliance Date Extension 03/13/19 1 page
VIIl Order: Compliance Date Extension 04/10/19 1 page
Order: Compliance Date Extension 05/22/19 1 page
Order: Compliance Date Extension 06/10/19 1 page
Xl Order: Compliance Date Extension 07/25/19 1 page
Xll Order: Compliance Date Extension 09/24/19 1 page
See, N.Y. Educ. Law Sec. 2(15); In re Keisha BB, 815 N.Y.S.2d 800 (3d Dep't 2006).
Footnotes
[1] See 20 U.S.C.§141 (b) (7) (B).
[3] See my discussion and rulin below re ardin the concept of “unilateral” placement in this matter.
[6] The 2004 IDEA Amendments have codified the aforementioned procedural part of the Rowley inquiry, with special emphasis on the opportunity for parental participation. Specifically, 20 U.S.C. § 1415(f)(3)(E); 34 C.F.R. § 300.513(a)(2) provides: In matters alleging a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies-- (i) Impeded the child’s right to a FAPE; (ii) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or (iii) Caused a deprivation of educational benefit. See R.E, supra at 188.
[7] As of the date of this decision, the Second Circuit has yet to definitively comment on the Supreme Court rulin . “Because we conclude that the School District failed to provide T.C. with a free and appropriate public education under the existing precedent in this circuit, we need not decide whether Endrew F. raised the bar for a free and appropriate public education or left Second Circuit precedent intact (the Supreme Court's decision certainly did not reduce the force of the requirement).” J.C. v Katonah-Lewisboro Sch. Dist., 2017 U.S. App. LEXIS 8171 [2d Cir May 9, 2017, No. 16-1838].
[8] 8 I note that Dr. agreed with an extended school for ., and testified that to mitigate regression, she needs a lot of repetition and practice with her skills.
[9] See, N.Y. Educ. Law Sec. 2(1 ); In re Keisha , 81 N.Y.S.2d 800 (3d Dep't 2006).
[10] 10 Within her oral summation, parent counsel correctly described such a recommendation as “conclusory.” Tr. 110
[13] Additionally, if tuition had been the responsibility of the parent — whose testimony I found credible - due to her receiving only about $30,000 in income last year and being currently unemployed while living within a household of four, | agree with her conclusion that she could not afford tuition at for the 2019-2020 extended SY. See Tr. 100. I therefore would have ordered prospective payments by the DOE pursuant to Connors v. Mills, 34 F.Supp.2d 795 (N.D.N.Y. 1998), and Mr. and Mrs. A. v. New York City Department of Education; 769 F.Supp2d 403, 423-430 (S.D.N.Y. 2011), holding that the I|.D.E.I.A. provides for equitable relief that is sufficiently broad to encompass retroactive, direct tuition payment relief for a parental placement where the school district denied the student FAPE.