New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 537037 - NYC: 193874

FINDINGS OF FACT AND DECISION

Case Number: 193874

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter “Parent”)

Date of Hearing: November 12th, 2020

Record Close Date: November 19th, 2020

Hearing Officer: Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 12th, 2020

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”)

The Parent

REDACTED (hereinafter referred to as “Parent’s Witness”)

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

This matter comes before me at the request of the Parent’s representative on behalf of the Parent, concerning the Student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

PROCEDURAL HISTORY

A due process complaint (“DPC”) was filed for the Parent on May 14th, 2020 under case number 193874 regarding the claims by the Parent pertaining to the 2019-2020 school year (“DPC 1”), which includes inter alia a claim for increased Special Education Teacher Support Services (“SETSS”) and includes a pendency motion. A second DPC was filed for the Parent on October 7th, 2020 under case number 202786 regarding the 2020-2021 school year (“DPC 2”) and includes a claim for an enhanced rate and a pendency motion.

A motion to consolidate was considered on November 9th, 2020 under case number 202786 and a written order was issued on November 10th, 2020 under that case number, ordering that DPC 2 shall not be consolidated with DPC 1 under case number 193874 but shall move forward under separate case numbers.

This case therefore only concerns the claims set forth in DPC 1.

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA^[1], and its implementing regulations^[2], and the New York State Education Law^[3], and its implementing regulations^[4].

RELIEF

The relief claimed in DPC 1 is for 6 periods of SETSS in REDACTED per week for the 2019-2020 school year at an enhanced rate of $125.00 per hour. At the hearing, the Parent’s representative confirmed that the Parent was only persisting with relief for 5 periods of SETSS at the enhanced rate (transcript: pg. 24, lines 3-18). The claim is essentially divided into two forms of relief, namely, payment to the Agency for the 3 periods of SETSS per week provided by the Agency to the Student for the 2019-2020 school year (Exhibit P-E) and 80 periods (40 weeks x 2 periods i.e. 5 minus 3 periods) of SETSS in REDACTED as compensatory relief (transcript: pg. 24, 19-25; pg. 25, lines 1-6).

At the prehearing conference on October 20th, 2020 the Parent’s representative confirmed that the Parent had received a pendency agreement signed by the District in May 2020 (Exhibit P-C), so pendency would only have been for the months of May (partial) and June 2020. Accordingly, the Parent was not seeking a separate limited hearing to deal with the question of pendency (or the pendency motion contained in DPC 1), but reserved rights in regard thereto at the prehearing conference (transcript: pg. 4, lines 15-25; pg. 5, lines 1-10). No pendency claim was pursued at the due process hearing.

EVIDENCE PRESENTED AND PARTIES’ POSITIONS

District’s case:

The District did not put on a case. The District’s representative made a closing statement asserting that the District could not agree to SETSS beyond the 3 periods per week, that it objected to the enhanced rate (transcript: pg. 70, lines 22-25; pg. 71, lines 1-18) and that the SETSS Provider’s credentials were also placed in issue (transcript: pg. 41, lines 22-25; pg. 68, lines 16-25).

Parent’s case:

The Parent’s representative made an opening statement (transcript: pg. 21, lines 16-25; pg.s 22 & 23) asserting, inter alia, that:

• • The Student had, during the 2019-2020 school year, substantial delays in reading, such as decoding, encoding, fluency, and processing, comprehension, both auditory and visual, low processing, writing skills.
• • The Student was regressing because he did not have the 5 periods of SETSS that the Parent requested at least five times during the CSE meeting on June 26th, 2019 (“the IEP meeting”).
• • The Student should have received 5 periods of SETSS in REDACTED for the 2019-2020 school year.
• • The Individualized Education Program (“IEP”) for the 2019-2020 school year was deficient.

The Parent’s representative called the Parent and the Parent’s Witness to testify. The Parent’s representative submitted twelve documents in support of the Parent’s case that were admitted into evidence as Parent Exhibits P-A through P-L (Listed in Appendix B), after it was confirmed with the District’s representative that there was no objection from the District to the admission of those documents into evidence.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE")^[5]. 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^[6].

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^[7].

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”^[8]. 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^[9].

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^[10]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[11].

This case involves a parentally placed student with an individualized education services program (“IESP”) rather than an IEP. Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them^[12]. The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document^[13]:

“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs...

… Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student...”

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement^[14].

Denial of a FAPE:

My findings regarding a denial of FAPE by the District for the 2019-2020 school year are as follows:

• • The District cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the student^[15]. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner^[16].
• • The District has an affirmative obligation to offer the student a FAPE^[17]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate^[18] (my emphasis).
• • For the 2019-2020 school year, the District had an obligation to ensure that the Student had an appropriate program and services in effect before the start of the school year^[19].
• • At the IEP meeting, the Parent was requesting increased SETSS based upon the Student’s deficits and regression, namely 5 periods.
• • The Parent testified as to the Student’s level of functioning in reading, comprehension, mathematics, and writing, as well as the testing scores/results (transcript: pg.s 28-9; 32-5; 36-7).
• • She further testified as to the inadequacy of the goals contained in the 2019-2020 IEP and the Student’s regression (transcript: pg. 38, lines 15-25; pg. 39, lines 1-9).
• • The Parent testified that her son was lagging a year and a half or even two years and that 3 periods was insufficient, that he needed more. She further testified that the specific area he regressed was primarily in reading (transcript: pg. 40, lines 6-21).
• • The Parent also testified that the Student was being taught after hours, on Sundays and Fridays, and that she saw progress when it was one-on-one, but in school, he was not doing any learning without support and was not able to learn along with the class (transcript: pg. 36, lines 4-9).
• • The Parent’s Witness testified that the Student is a highly visual learner and had fundamental comprehension problems, that he was in need of learning across all subjects, but most urgently with reading and then reading comprehension (transcript: pg. 52, lines 19-23).
• • The Parent’s Witness further testified that the Agency (and SETSS Provider) were able to make some progress, but that it was limited because the scope of the Student's needs were not being met with the mandate authorized under his IEP (transcript: pg. 52, lines 24-25; pg. 53, lines 1-2).
• • The Parent’s Witness testified that the Agency (and SETSS Provider) customized and changed the Student’s program throughout the year to include a pre-teaching, previewing of lessons prior to learning, because they noticed that the Student's motivation was falling because of the extreme academic gap in the classroom he was in and what the Student's abilities were at the time (transcript: pg. 53, lines 23-25; pg. 54, lines 1-4).
• • The Parent’s Witness testified that he clearly remembered and that “this was a big deal”, in response to the Parent’s representative’s question as to whether the goals (in the IEP) were appropriate for only 3 periods of SETSS per week, because, he testified, when the Agency starts the school year with a new student, such as with the Student, the process in the Agency’s office is to look at the most recent psycho-educational testing and then to try to understand the cognitive skills of the child, and also the academic achievement portion. They then move to the goals and try to match the student’s goals with the information that they get from the psycho-educational part (transcript: pg. 56, lines 4-18).
• • The Parent’s Witness testified that in this specific case, there was a lot of elaboration about the Student's skill deficits throughout the psycho-educational, and there was a lot of needs listed in the IESP. He testified recollecting that when they turned to the goals, they (referring to the goals) were not matching what their impression of where the Student’s skills were (transcript: pg. 56, lines 18-25; pg. 57, lines 1-2).
• • The Parent’s Witness testified that they followed up then with the Parent and with the school, and that they did not have an effective program right away because they were confused as to what the Student's true needs were (transcript: pg. 57, lines 2-7).
• • The Parent’s Witness testified that they then, throughout the year, developed their own priority of their own goals, which were much more extensive, and that this was done in collaboration with the classroom teacher, the SETSS Provider, the Agency’s supervisor, and the Parent, who is an educator herself, with a very strong understanding of her child's needs (transcript: pg. 57, lines 7-15).
• • The Parent’s Witness testified that 3 periods of SETSS was not appropriate and that the SETSS Provider could not deliver that kind of progress sought with the limited time that he had with the Student, that the Student's needs were way beyond that (the number of SETSS authorized in the IEP), and that another year had passed without enough progress being made to keep the Student, at least, on track with remediating his skills and addressing the academic gaps (transcript: pg. 58; pg. 59, lines 1-10).
• • The District argued that the IEP team determined that 3 and not 5 periods of SETSS was appropriate, after considering the Student’s current level of academic functioning, and therefore, the District cannot agree to 5 periods of SETSS (transcript: pg. 70, lines 11-24; pg. 71, lines 7-10).
• • The District also argued that although the IEP team determined that 5 periods of SETSS for the 2020-2021 school year was determined to be appropriate for the Student, that was not the year (2020-2021) in issue or an issue at this time and therefore the District could not agree to the hours or the rate (transcript: pg. 71, lines 11-18).
• • No evidence was led to support the contention that 3 periods of SETSS was appropriate for the Student for the 2019-2020 school year.
• • I find the uncontroverted evidence of the Parent and the Parent’s Witness compelling. The District’s assessment/conclusion that the Student only required 3 periods of SETSS was not supported by the assessments and current level of functioning of the Student.
• • The testimony by the Parent, especially given her educational background, as well as the Parent’s Witness’ testimony, supports the Parent’s representative’s assertion that based upon the Student’s current level of functioning at the time, the goals set forth in the IEP and the Student’s regression, the IEP developed for the 2019-2020 school year was not reasonably calculated to enable the Student to receive educational benefits.

In the circumstances, given that the Parent made out a prima facie case for the denial of a FAPE for the Student for the 2019-2020 school year, the District having not put on a case to prove/substantiate otherwise, I therefore find that the District did not discharge its burden in this regard.

Claim for Recovery at an “Enhanced Rate”:

Notwithstanding my finding that the Student was denied a FAPE during the 2019-2020 school year, that is not the end of the enquiry. The District challenged both the rate being claimed by the Parent, namely the enhanced hourly rate in the sum of $125.00 and questioned the validity of the credentials/certification of the SETSS Provider.

Rate Being Claimed:

It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos”^[20].

Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.' They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'"^[21].

The Parent submitted into evidence a call log of her attempts made to locate a district teacher/provider for SETSS (Exhibit P-F). I have no reason to doubt that the Parent in fact made such attempts and was unsuccessful in finding a provider willing to provide the mandated services at the District’s standard rate.

It has been found that the District's system for providing SETSS services that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the Parent acquired online is a violation of State law^[22].

Further it has been held that "a board of education lacks authority to provide instructional services through an independent contractor"^[23] and that the application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into^[24]. A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student^[25].

It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA"^[26].

Parent’s Witness provided comprehensive testimony as to the cost of services/the rate provided by the Agency to the Student during the 2019-2020 school year in the sum of $125.00 per hour and the make-up of that rate (transcript: pg.s 61-6). I find that the rate being claimed, particularly given the SETSS Provider provided SETSS in REDACTED, is a reasonable rate for the 2019-2020 school year and is market related.

Since the Parent has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the Parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework"^[27].

The Parent clarified in response to my clarification questions the contractual obligation she had with the Agency in terms of which she contracted the Agency to provide the SETSS to the Student. She testified as to an obligation to cover/pay for the SETSS provided by the Agency to the Student and having signed documentation (transcript: pg. 47, lines 11-25; pg. 48, lines 1-17). I therefore find proof of an agreement between the Parent and the Agency that delivered the SETSS, providing that the Parent would ultimately be responsible for the costs of the SETSS for the 2019-2020 school year.

SETSS Provider’s Certification:

This is not the first time that such an issue has been before a Hearing Officer. Generally, teachers at a unilateral placement need not be State-certified^[28], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits^[29].

In the present case, I find that the Parent has established on a balance of probabilities that the SETSS Provider held an appropriate professional certification, as testified by the Parent’s Witness (transcript: pg. 69, lines 2-14). The SETSS Provider’s credentials are reflected in Exhibit P-G. Although the first certification listed reflects that the SETSS Provider held an “Early Childhood Disabilities (birth-grade 2) Professional Certificate” effective from 11/02/2018, he does also hold a “Student with Disabilities (Grades 1-6) Professional Certificate” that was effective from 09/04/2015, which has not expired (Exhibit P-G-1).

The Parent further testified that given her background as an educator, she was satisfied that the SETSS Provider was qualified and that her son was getting the services he needed, particularly given the goals they were working towards (also that the Agency was willing, and in fact did, step in to assist where more was needed, as they had been collaborating with her on her son’s goals) (transcript: pg.s 42-3).

Given that the burden of proof and production is on the District, I am therefore unable to find that the SETSS Provider was not qualified or did not hold reasonable qualifications that are specifically related to the Student's deficits, and therefore placing the SETSS Provider’s credentials in issue does not defeat the Parent’s claim.

As the District was nevertheless obligated to pay for SETSS for the 2019-2020 school year, I find that the Parent is entitled to an Order for payment for SETSS provided during the said school year. To hold otherwise, would be to countenance the District’s actions in denying the Student a FAPE and permit the District to benefit financially from its conduct.

Compensatory Services:

Part of the relief sought by the Parent is an award for compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE. 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^[30].

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^[31].

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

The Student experienced a FAPE deprivation and denial of appropriate services during the 2019-2020 school year. Since the District’s opposition by attending the hearing was based on the assertion that it had authorized sufficient SETSS, namely 3 periods, for the 2019-2020 school year, it did not take any specific position with respect to the type or scope of compensatory education that would be appropriate in the event that a FAPE deprivation was found.

The Parent’s and the Parent’s Witness’ testimony were credible and convincing and was based on detailed and comprehensive understanding and evaluation of the Student. It was not controverted by any testimony, expert or otherwise, or other documentary evidence. Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the quantitative approach.

The link between the missing services, namely the additional 2 periods of SETSS in REDACTED, and the inability of the SETSS Provider to make the progress that they (the “team” consisting of the Parent, the Agency’s staff responsible for the Student’s case including the Parent’s Witness, the SETSS Provider, and the school personnel referenced during in hearing) had hoped to achieve during the school year in question, given the Student’s deficits, was well supported by the evidence.

The fact that 5 periods was authorized at the next IEP meeting, although not determinative, is also indicative that the higher intensity of services at 5 periods of SETSS, as opposed to 3 periods, is appropriate to provide the Student with a FAPE. As such, the Parent’s request for compensatory education is being granted.

I find that the requested services are an appropriate form and amount of compensatory education for the Student’s FAPE deprivation, without any need to adjust the award based on equitable consideration, none being proven/found. I am satisfied that the rate set out in the Parent’s Witness’ testimony is reasonable and market related and therefore I am awarding such services be compensated at the Agency’s regular rate (i.e. “an enhanced rate”).

I am mindful that the Student will be receiving SETSS during the 2020-2021 school year in terms of his latest IEP and therefore am awarding these compensatory hours to be provided at any time during the 2020-2021 extended school year, without making it location specific, so that the Student can receive the benefit of these services at a time and place that does not conflict with his 2020-2021 mandated services.

ORDER

IT IS THEREFORE ORDERED:

• • THAT, the DOE is directed to fund (to the extent not previously funded by the DOE) the Student’s SETSS for the 2019-2020 school year commencing on 09/05/2019 through to 06/30/2020 at the enhanced rate of $125.00 per hour, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS it rendered to the Student during that specified period, limited to 120 hours.
• • FURTHER ORDERED that, the DOE shall provide and fund 80 periods of SETSS in REDACTED as compensatory services for the Student, to be provided during the 2020-2021 extended school year, by a provider of the Parent’s own choosing at the providers’ regular rates (i.e. “an enhanced rate”) up to $125.00 per hour, by issuing payment directly to the selected provider within 30 (thirty) days upon the submission of invoices for services rendered.

SO ORDERED.

DATED: November 24th, 2020

____AHC____(Signed Electronically)___

Impartial Hearing Officer

Aristargos (Harry) Christodoulou

Hearing Officer’s Fact of Finding and Decision

_______________________________________________________________________

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 – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Parent’s

Exhibits:

P-A

05/12/20

Due Process Complaint

9

P-B

06/26/19

IESP

9

P-C

05/18/20

Pendency Agreement

3

P-D

07/02/19

Prior Written Notice

2

P-E

10/26/20

Affidavit

1

P-F

09/__/19

Out Reach

1

P-G

Undated

Teacher Certification and extension certificate

2

P-H

04/03/19

Psycho-educational evaluation

7

P-I

06/04/19

Classroom Observation

1

P-J

03/14/19

Progress Report

2

P-K

Undated

Student educational records

5

P-L

06/18/20

IESP

12

District’s

Exhibits:

None

-

-

-

IHO Exhibits:

None

-

-

-

Footnotes

[1] U.S.C. § 1400 et seq.

[2] C.F.R. § 300 et seq.

[3] Educ. Law Art. 89 § 4404 et seq.

[4] NYCRR § Part 200.

[5] U.S.C. § 1400 [d][1][A].

[6] C.F.R. § 300.13.

[7] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[8] Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

[9] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[10] U.S.C. § 1415[f][3][E][i].

[11] Rowley, 458 U.S. at 203.

[12] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.

[13] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.

[14] NYS Educ. Law § 4404(1)(c).

[15] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).

[16] In re: Student with a Disability New York State Educational Agency.

[17] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[18] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

[19] NYCRR §200.4[e][1][i]-[ii].

[20] Application of a Student with a Disability, Appeal No. 20-140.

[21] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].

[22] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.

[23] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).

[24] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].

[25] Educ Law § 3602-c[2][a].

[26] Application of a Student with a Disability, Appeal No. 20-140.

[27] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.

[28] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.

[29] Application of a Student with a Disability, Appeal No. 20-140.

[30] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[31] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].