New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 537038 - NYC: 193875

FINDINGS OF FACT AND DECISION

Case Number: 193875

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

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter the “Parent”)

Record Close Date: November 5th, 2020

Date of Hearing: November 5th, 2020

Hearing Officer: Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 5th, 2020

For the Student:

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

The Parent

REDACTED (hereinafter referred to as the “Parent’s Witness 1”)

For the Department of Education:

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

REDACTED

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of the Parent of the Student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).

BACKGROUND

On or about May 14th, 2020, the Parent filed a due process complaint (“DPC”) against the District under case number 193875 (Exhibit P-A) pursuant to the IDEA. I was appointed on October 7th, 2020 to conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC.

At the main hearing, after confirming that there were no objections from the District’s representatives as to the Parent’s proposed exhibits, namely Exhibits P-A to P-E and these were admitted into evidence. Although there was an initial objection by the Parent’s representative to the District’s representative’s proposed exhibit, this was withdrawn, and the said exhibit was subsequently admitted into evidence as Exhibit DOE-1.

POSITIONS OF THE PARTIES AND EVIDENCE PRESENTED

District’s case:

The District’s representative indicated that the District is not disputing the fact that the Student requires services but is objecting to the enhanced rate (transcript: pg. 11, lines 18-21) and the SETSS Provider’s certification (transcript: pg. 37, lines 4-9).

After entering Exhibit DOE-1 into evidence, the District’s representative rested the District’s case and indicated that the District requests to cross examine the Parent and the Parent’s Witness 1 (transcript: pg. 14, lines 24-25; pg. 15, line 1).

Parent’s case:

The Parent’s representative did not make an opening statement. In closing, the Parent’s representative however argued that it is the Parent's contention that the Department of Education (“DOE”) failed to provide a Free Appropriate Public Education ("FAPE") for the Student for the 2019-2020 school year, more specifically that it failed to provide the Student with the 10 hours of SETSS he was entitled to receive (transcript: pg. 39, lines 1-6).

The Parent’s representative called the Parent to testify. The Parent testified:

• • In examination in-chief^[1] that:
• • The Student was entitled to 10 hours of SETSS for the 2019-2020 school year and that the DOE did not provide someone who could provide the SETSS (transcript: pg. 15, lines 21-25; pg. 16, lines 1-3).
• • She attempted many times to try and find a provider for her son on her own around approximately January 2020 by calling providers the DOE has listed on its website (transcript: pg. 17, lines 13-25).
• • None of the providers she called were able to provide the SETSS to her son (transcript: pg. 18, lines 24-25; pg. 19, line 1-2).
• • She eventually found the SETSS Provider who was able to provide the SETSS for her son through the Agency (transcript: pg. 19, lines 3-12).
• • She agreed to pay the Agency for the services that they would be providing (transcript: pg. 19, lines 13-16).
• • She agreed to “take care of it”, although she thought they would be getting the funding from the DOE and they agreed to wait for the outcome of the case before billing (transcript: pg. 20, lines 11-15).
• • In cross-examination, that:
• • She made the calls referenced in Exhibit P-C during or about January 2020 (transcript: pg. 24, lines 12-22).
• • In September, the Student only received partial SETSS as due to availability of the provider, the school was aware of this, and the school did not have a provider that could take the additional periods that the Student was mandated for in September (transcript: pg. 25, lines 20-25; pg. 26, lines 1-6).
• • She did try to contact the DOE, but was not sure how many times, that it wasn't so easy to reach the DOE but she did try, and that she did not remember the exact dates. She also did not recall who she tried to contact (transcript: pg. 26, lines 7-19).

The Parent’s representative called Parent’s Witness 1 to testify. Parent’s Witness 1 testified:

• • In examination in-chief (Exhibit P-D), that:
• • The Agency agreed to provide the Student with ten periods of SETSS per week for the 2019-20 school year, starting from “01/06/2019”^[2] (sic) and ending on 06/30/20 at a rate of $150.00 per hour, which is commensurate with other SETSS agencies in New York City (Exhibit P-D-1).
• • In addition to the amount paid to the SETSS providers, the remainder of the fee is used by the Agency to pay for overhead, including office staff, materials, training, supervision, assessments etc. (Exhibit P-D-1) [The breakdown was further elaborated on during cross-examination (transcript: pgs. 32-33)].
• • The SETSS Provider was the provider for the Student for the 2019-2020 school year and that he is a certified special education teacher (Exhibit P-D-1).
• • In total, the Agency provided 199 hours to the Student for the 2019-2020 school year totaling $29,850.00 and the Agency has received $0 for such services (Exhibit P-D-2).
• • The SETSS Provider was assigned to the Student for the 2019-2020 school year but that she did not know what his certifications were as she is not a clinician and did not have that information (transcript: pg. 29, lines 17-25).
• • The SETSS Provider was assigned by the Agency to be a SETSS provider for the Student as the Agency has a team that assigns the teacher to the student using the teachers' past experience of who they worked with and their expertise in certain subjects. Further, that if a child needs more help or just to see if the child would work well with that specific teacher. There is a lot that goes into the decision of which teacher is assigned to a child (transcript: pg. 30, lines 1-13).
• • The Agency always has an agreement in place before it takes on the case. They have the parent sign an agreement and that although she did not have the agreement in front of her for this specific case, she knows that it is the Agency’s policy (transcript: pg. 30, lines 14-25; pg. 31, lines 1-2).
• • In cross-examination, that:
• • The Agency has a team, when asked if there was a reason that the SETSS provider was paired up with a student that was in the 11th grade when his license is only birth to grade two, which is nine grade levels below, of people that assign the teachers to the students. Furthermore, the provider’s experience and who they have worked with in the past, at what age levels, if they have the proper skills to teach an older child or a younger child, is considered (transcript: pg. 31, lines 15-25; pg. 32, line 1-2).
• • That even though the SETSS Provider’s certification may be for a younger age, his experience in the last years has been working with older children (transcript: pg. 32, lines 2-5).
• • The SETSS Provider received $65 an hour (transcript: pg. 32, lines 11-13).
• • On top of the cost paid to the SETSS Provider and the payroll taxes associated with the provider, the Agency also has a cost for its overhead, rent, utilities, phones, in-house staff that do coordination, hiring, supervision, back-end accounting work, and things like that. In addition, the Agency has supplies that is bought for kids specifically when the provider requests it and supplies at the Agency that the providers come and utilize. The Agency also purchased in the year 19-20 a new software that is for notes for the “NPRAs” and it is on that platform that the teachers get continuing education that they pay for through that platform. There are “tons of materials” on the platform that they can utilize and purchase when needed, working with each kid individually. During COVID, the Agency bought “tons of devices” for both the teachers and students to get services (transcript: pg. 32, lines 18-25; pg. 33, line 1-11).
• • The software that the Agency is using, NPRA, is used for all its providers and students across the board, but that they do pay individually when the provider utilizes it to get continuing ed. classes or certain materials that they take off the software, which is paid on an individual level (transcript: pg. 33, lines 12-22).
• • The Agency serviced approximately 150 students during the 2019-2020 school year (transcript: pg. 33, lines 23-25; pg. 34, lines 1-2).
• • The services given for the Student were provided in school, but she (the Parent’s Witness 1) did not know what curriculum the SETSS Provider followed as she is not a clinician and cannot answer that question (transcript: pg. 34, lines 3-9).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE^[3]. 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”)^[4]. 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^[5].

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”^[6]. 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^[7].

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^[8]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”^[9].

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^[10]. 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^[11]:

“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^[12].

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 did not provide a SETSS provider and did not provide the Student with 10 hours of SETSS for the entire 2019-2020 school year.
• • The District, although it challenges the enhanced rate and the SETSS Provider’s qualifications, did not put on a case to establish that it did comply with its affirmative obligation to provide the mandated services set out in the Student’s IESP for the 2019-2020 school year.
• • Given where the burden of proof, including the burden of persuasion and burden of production, lies, I find that the District has not established that a FAPE was provided for the Student for the 2019-2020 school year in that it failed to “provide personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (my underlining).

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 challenges both the rate being claimed by the Parent, namely the enhanced hourly rate in the sum of $150.00, and 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”^[13].

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.'"^[14].

The Parent submitted into evidence a call log of her attempts made to locate a district teacher/provider for SETSS (Exhibit P-C). 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^[15].

Further it has been held that "a board of education lacks authority to provide instructional services through an independent contractor"^[16] 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^[17]. A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student^[18].

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"^[19].

Parent Witness 1 testified that the cost of services provided by the Agency to the Student during the 2019-2020 school year amounted to $29,850.00 and that the Agency had received $0 for such services (Exhibit P-D-2, paragraphs 8 and 9).

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"^[20].

The Parent however testified as to an obligation to pay for the SETSS provided by the Agency to the Student. Both the Parent and the Agency confirmed such an agreement (transcript: pg. 20, lines 11-15) (transcript: pg. 30, lines 14-25; pg. 31, lines 1-2). I therefore find proof of an agreement between the Parent and the Agency that delivered SETSS providing that the Parent would ultimately be responsible for the costs of the SETSS services for the 2019-2020 school year.

The District’s representative challenges the rate being claimed as being “extremely excessive”. Parent Witness 1 provided detailed testimony as to the breakdown of the rate of $150.00 per hour, which included some expenditure by the Agency of a capital nature and, as argued by the District’s representative, materials that are sharable with other SETSS providers of the Agency. I find that the rate being claimed, being more than double the amount paid to the SETSS Provider (which is understandable given the SETSS Provider’s certification – which I deal with more fully below), is excessive and not what I would consider to be reasonable rate for the 2019-2020 school year.

SETSS Provider’s Certification:

In the present case, I find that the District has established on a balance of probabilities that the SETSS Provider, who provided SETSS services to the Student from January 2020, only held certification for “Student with Disabilities (birth-grade 2) internship Certificate”.

The Parent’s Witness 1 testified that she does not know what the SETSS Provider’s certifications were as she “is not a clinician and did not have that information” (transcript: pg. 29, lines 17-25), which does not appear to align with her statement in her affidavit (Exhibit P-D-1) where she states that the SETSS Provider “is a certified special education teacher”. Even allowing for a generous interpretation of such a title, possession or holding an internship certificate would be a far cry from being a certified special education teacher.

It is apparent from Exhibit P-E that the SETSS Provider’s internship certificate is only effective from January 9th, 2020. I should also point out that the internship certificate is not a “Professional Certificate”, and no evidence was proffered as to whether any of the services provided by the SETSS Provider were provided under the presence of a certified SETSS Provider holding a professional certificate, or whether any were available and retained some level of supervision over him.

I find that the evidence establishes that the SETSS Provider was not certified for a child in eleventh grade, being the Student’s grade at the time.

The District’s representative requested that I should take into account that New York State Education Law section 3001 (2016) states the fact that a provider should be licensed in the area of the grade of the child (transcript: pg. 38, 8-11). I will however point out that this applies to teachers being employed in public schools.

The Parent’s representative argues that Parent is not held to the same standard as the DOE in terms of the qualifications of a SETSS provider that she was ultimately able to secure for her child, especially since it is clear that providers are not easily able to be found. Further, he argues, that the DOE did not provide a provider, which indicates the scarcity of the available providers that can be found for students (transcript: pg. 40, 3-10).

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^[21], 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^[22].

Parent’s Witness 1 provided evidence of a general nature as to how the Agency assigns a SETSS provider to a student (transcript: pg. 30, lines 1-13) (transcript: pg. 31, lines 15-25; pg. 32, line 1-2), but their subjective assessment as to suitability or compatibility does not translate into “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”.

Parent Witness 1 testified that she did not know what curriculum the SETSS Provider followed as she is not a clinician and cannot answer that question (transcript: pg. 34, lines 3-9). Parent Witness 1 did testify that even though the SETSS Provider’s certification may be for a younger age, his experience “in the last years” has been working with older children (transcript: pg. 32, lines 2-5). No age range or grade levels was specified.

The SETSS Provider was not called as a witness and no evidence is before me to make a finding that the SETSS Provider, although not correctly certified for Student’s grade, was reasonably qualified.

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. On the other hand, to allow an excessive rate to be claimed, especially where the agency utilizes a service provider that is not certified for the student’s specific grade (and potentially benefits by paying a lower rate for a provider holding an internship certificate compared to one holding a professional certificate), could ultimately lead to students not receiving mandated services by appropriately qualified service providers, while simultaneously permitting agencies to benefit financially from employing underqualified providers.

The Parent's request a determination that the services should be funded at the enhanced rate of $150.00 must therefore be denied in part due to equitable considerations. The “Proposed Solution” in Exhibit P-A-2 is seeking SETSS be awarded at an enhanced rate commencing February 3rd, 2020. The evidence however supported SETSS being provided by the Agency possibly even as early as January 2020.

Furthermore, the “Proposed Solution” seeks missed SETSS be authorized during the months of July and August 2020, although this claim was not expressly pursued at the hearing. This case was only finalized after August 2020, after those months passed and the record does not establish any specified number of any missed periods. The Parent confirmed that once the Agency took over, the Student received the full hours weekly (transcript: pg. 25, lines 10-16). The award shall therefore cover the period the Agency provided SETSS to the Student from 01/09/2020, being the effective date of the SETSS Provider’s certification, through to 06/30/2020.

ORDER

IT IS THEREFORE ORDERED:

• • THAT, the DOE is directed to fund the Student’s SETSS for the 2019-2020 school year commencing on 01/09/2019 through to 06/30/2020 at the enhanced rate of $90.00, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to the Student during that specified period, up to a maximum of 199 hours.

SO ORDERED.

DATED: November 13th, 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

05/14/20

Request for Due Process Proceeding and Notice of Appearance

4

P-B

09/01/19

Authorization for Independent SETSS (9/1/2019-6/30/2020)

P-C

Undated

Parent’s Call List

1

P-D

10/29/20

Affirmation of Parent Witness 1/The Agency

P-E

10/29/20

Certificate Information for SETSS Providers

1

District’s

Exhibits:

DOE-1

11/06/19

Authorization for Independent SETSS

IHO Exhibits:

None

-

-

-

Footnotes

[1] Due to my omission, I only placed the Parent under oath right before cross-examination and requested the Parent’s representative to ask his client, once she was under oath, whether the information she had provided during examination-in-chief was true and correct. The result of the case would not be any different even without any of the answers provided during examination-in-chief, which were subsequently verified by the Parent under oath as being true and correct and also dealt with in cross-examination and/or re-examination.

[2] It was clarified in re-examination that the year “2019” was a typographical error and should read “2020” (transcript: pg. 34, lines 16-24).

[3] U.S.C. § 1400 [d][1][A].

[4] C.F.R. § 300.13.

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

[6] 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).

[7] 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].

[8] U.S.C. § 1415[f][3][E][i].

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

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

[11] 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.

[12] NYS Educ. Law § 4404(1)(c).

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

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

[15] 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.

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

[17] 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].

[18] Educ Law § 3602-c[2][a].

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

[20] 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.

[21] 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.

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