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FINDINGS OF FACT & DECISION
Case Number: 547322 – NYC: 203829
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 24, 2022
For the Student:
[REACTED], ESQ., Attorney
[REACTED], Associate Director, Private School
For the District:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 7, 2022
For the Student:
[REDACTED], ESQ., Attorney
For the District:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 9, 2023
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
For the District:
NONE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the attorneys for the student and the parents in a due process complaint dated November 6, 2020. The primary issue to be determined at this hearing is whether the School District offered the student a free appropriate public education ("FAPE") for the 2019/20 school year (Ex. IHO-I). [1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program ("IEP"), which is delegated to a local Committee on Special Education (the "CSE") that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student." See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer ("IHO") typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer ("SRO"). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
On November 16, 2020, the School District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). Hearings on the merits of the matter were thereafter held on: June 24, 2022; September 7, 2022; and March 9, 2023.[2] Appended to this list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the November 6, 2020 due process complaint, the student was [REDACTED] years old and diagnosed with an attention deficit hyperactivity disorder ("ADHD") (Ex. IHO-I at 1). The student struggles to focus and complete assignments independently. He also has auditory processing issues (Ex. P-L at 4). For the 2019/20 school year, the student was enrolled by his parents for instruction at the [REDACTED] (hereinafter referred to as the "Private School") (Exs. P-M, IHO-I). The Commissioner of Education has not approved the Private School as a nonpublic school with which public school districts may contract to instruct students with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with a disability is not in dispute in this hearing (Exs. P-L, IHO-I). See 8 NYCRR § 200.1(zz). [3]
According to the complaint, the CSE convened on February 7, 2019 to develop an IEP for the student through February 2020. The CSE reportedly recommended that the student receive the majority of his instruction in at 12:1+1 special class in a community school. The CSE also recommended that the student receive related services of: counseling, occupational therapy, my review of the hearing record taken on the extensive issues raised in the parents' due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 67-68, 81-82; Exs. IHO-II – IHOXXXI). physical therapy, and speech and language therapy (Ex. IHO-I at 2).
The parents object to the recommended IEP for the student on a number of procedural and substantive grounds and assert that the School District denied the student a FAPE (Ex. IHO-II at 2). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The School District
At the hearing, the School District declined to make any presentation that it offered the student a FAPE for the 2019/20 school year (R. 13).
B. The Parents
The School District should be ordered to reimburse the parents, and/or directly pay, for the student's unilateral placement at the Private School for the 2019/20 school year. The School District denied the student a FAPE during the 2019/20 school year. The student has made significant progress while placed at the Private School, which is a private, full-time special education program designed to address the learning and social and emotional needs of enrolled students. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services (R. 12-14; Ex. IHO-I).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). [4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
"'[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. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"); Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment ("LRE"). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). [5]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); 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).
B. Recommended Public Program
In general, the IDEA and state regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012). Although not explicitly stated in federal or state regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to, or contemporaneous with, the date of initiation of services under the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Application of the New York City Dep't of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).
The School District declined to make a presentation at the hearing. There is no evidence contained in the hearing record that the CSE developed an IEP for the student for the 2019/20 school year, nor is there any evidence that the School District offered the student an educational placement for that school year. Accordingly, I find that the School District denied the student a FAPE during the 2019/20 school year.
C. Appropriateness of the Private School Given my finding that the School District failed to provide the student with a FAPE during the 2019/20 school year, I turn to the appropriateness of the parents' private program. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be "proper under the Act," see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student's special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student's potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent's unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." Id. at 364; see also Gagliardo, 489 F.3d at 115. A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of the Associate Director of the Private School and the parent, I find that the Private School was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs, along with necessary related services (R. 19-60, 74-79; Exs. P-D, P-E, P-F, P-J, P-K).
D. Relevant Equities
The final criterion for a reimbursement/direct payment award is that a parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). "Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable." Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement and/or direct payment may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student's placement at the Private School for the 2019/20 school year. In a letter dated August 16, 2019, the parents provided the School District with adequate prior written notice of their intent to make a unilateral placement of the student at the Private School for the 2019/20 school year at public expense (Ex. P-M). There is also no evidence indicating that the parents were uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student's tuition to the Private School unreasonable given the severity of the student's educational needs (Exs. P-A, P-B, P-L), see Carter, 510 U.S. at 16.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The parents' claim that the student was denied a free appropriate public education (FAPE) for the 2019/20 school years is SUSTAINED; and
2. Within thirty (30) days of its receipt of this Order, the School District shall reimburse the parents, and/or directly pay the Private School, for all costs associated with the student's placement there during the 2019/20 school year.
Dated: July 5, 2023
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Tuition Contract (2019/20), 12/26/18, 1 pg.
B. Tuition Affidavit (2019/20), 6/9/20, 1 pg.
C. Proof-of-Payments, various dates, 22 pgs.
D. Program Description, undated, 1 pg.
E. Elementary School Program Description, undated, 1 pg.
F. Distance Learning Plan, 2019/20, 1 pg.
G. Attendance Record, 6/8/20, 1 pg.
H. Attendance Record (final), undated, 1 pg.
I. Class Schedule, 12/27/19, 1 pg.
J. Remote Learning Schedule, 5/3/20, 3 pgs.
K. Comprehensive Student Plan, 2019/20, 33 pgs.
L. Psychoeducational Evaluation, 1/16/20, 6 pgs.
M. Ten Day Notice, 8/16/19, 3 pgs.
SCHOOL DISTRICT
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint/Impartial Hearing Request, 11/6/20, 6 pgs.
II. Extension Order, 1/26/21, 1 pg.
III. Extension Order, 2/25/21, 1 pg.
IV. Extension Order, 3/27/21, 1 pg.
V. Extension Order, 4/26/21, 1 pg.
VI. Extension Order, 5/26/21, 1 pg.
VII. Extension Order, 6/25/21, 1 pg.
VIII. Extension Order, 7/25/21, 1 pg.
IX. Extension Order, 8/24/21, 1 pg.
X. Extension Order, 9/23/21, 1 pg.
XI. Extension Order, 10/23/21, 1 pg.
XII. Extension Order, 11/22/21, 1 pg.
XIII. Extension Order, 12/22/21, 1 pg.
XIV. Extension Order, 1/21/22, 1 pg.
XV. Extension Order, 2/20/22, 1 pg.
XVI. Extension Order, 3/22/22, 1 pg.
XVII. Extension Order, 4/21/22, 1 pg.
XVIII. Extension Order, 5/21/22, 1 pg.
XIX. Extension Order, 6/20/22, 1 pg.
XX. Extension Order, 7/20/22, 1 pg.
XXI. Extension Order, 8/19/22, 1 pg.
XXII. Extension Order, 9/18/22, 1 pg.
XXIII. Extension Order, 10/18/22, 1 pg.
XXIV. Extension Order, 11/17/22, 1 pg.
XXV. Extension Order, 12/17/22, 1 pg.
XXVI. Extension Order, 1/16/23, 1 pg.
XXVII. Extension Order, 2/15/23, 1 pg.
XXVIII. Extension Order, 3/17/23, 1 pg.
XXIX. Extension Order, 4/16/23, 1 pg.
XXX. Extension Order, 5/16/23, 1 pg.
XXXI. Extension Order, 6/15/23, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as "R." References to exhibits admitted into evidence are noted as "Ex."
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times to accommodate the availability of the parties' respective witnesses and to allow for adequate time for decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a
[3] Student with a disability means a student with a disability as defined in section 4404(1) of the Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the [education] department. 8 NYCRR § 200.1(zz).
[4] The term "free appropriate public education" means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.