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NYSED # 549958 / NYC # 206292
FINDINGS OF FACT AND DECISION
Case Number: 206292
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 01/26/2021
Hearing Requested by: REDACTED
Date of Hearing: 05/19/2022 and 05/27/2022
Record Close Date: 05/27/2022
Date of Decision: 06/07/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2022
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative”)
REDACTED (hereinafter referred to as “Parent”)
REDACTED (hereinafter referred to as “Parents’ Witness”)
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s representative”)
Observers:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2022
For the Student:
Parents’ representative
For the Department of Education (“DOE”):
District’s representative
Observer:
REDACTED
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old 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.
On January 26, 2021[1], the Parents, through the Parents’ representative law firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on November 30, 2021, to preside over the claims in the DPC pursuant to New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning the special education program of the Student.
The parties sought, and were afforded time, to try resolve the matter without the need for a hearing. At a status conference (“SC”) held on February 10, 2022, Parents’ representative requested an IH date, and the IH was ultimately scheduled for May 19 and 27, 2022 (T. P7, L21-22)
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations[3], and the New York State Education Law[4] and its implementing regulations[5].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At the IH held on May 19, 2022, the District’s representative confirmed that the DOE was not putting on a case and that it would not be calling witnesses or submitting any documents. I inquired from District’s representative whether the DOE was conceding that the DOE failed to provide the Student a Free and Appropriate Public Education (“FAPE”), and he confirmed that the DOE was indeed conceding that it had not provided a FAPE (i.e., DOE conceded Prong I on the record)(T. P22, L5-13; P23, L14-18).
The DOE waived its opening and closing statements.
Parents:
The Parents, through the Parents’ representative, submitted 9 documents in support of the Parents’ case. All the proposed exhibits were admitted to the record and are listed below, after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence.
In an opening statement at the IH, Parents’ representative, inter alia: Reiterated the DOE’s concession regarding Prong I; asserted that the documentary and witnesses’ testimony would establish that the Attending School that the Student attended for the 2019-2020 school year (“SY”) was appropriate, and did address the Student’s learning needs; asserted that the Student made progress, and that the equities support a finding in favor of the Parents as they cooperated with the DOE and provided the requisite legal notice; and confirmed the relief sought (T. P25, L3-25; P26, L1-11).
PREVAILING PARTY
Parents are the prevailing party and an award or Order is granted in their favor.
LEGAL FRAMEWORK
The claims in the DPC relate to the Student’s special education program and placement for the 2019-2020 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a FAPE. Parents are seeking tuition reimbursement for the cost of the Student’s placement at the Attending School for the 2019-2020 SY (Exhibit P-A-2).
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[6].
If a procedural violation is alleged, an impartial hearing 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], and default judgments are disfavored by the federal courts[9]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[10].
School districts are not required to “maximize” the potential of students with disabilities[11], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[12]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[13].
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, which exception applies in this case[14]. The parties’ representatives confirmed their mutual understanding of the burden of proof at the SC on May 4, 2022 (T. P5, L1-21).
The DOE may be required to pay for educational services obtained for a student by the student’s parent(s), if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent(s)’ claim[15].
FINDINGS OF FACT AND DECISION
Prong I - Denial of a FAPE:
The DOE did not present any testimony to substantiate a case that it offered the Student a FAPE for the 2019-2020 SY. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[16] There was no explanation offered, let alone a cogent and responsive one.
In a recent case[17] that addressed a statute of limitations issue, the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant SY; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant SY; and to produce an annual IEP by the first day of the relevant SY.
In that case, it was conceded by the DOE that the Failures had constituted the denial of a FAPE and, like this case, the DOE did not contest that it had denied the student a FAPE (in this case Prong I is being conceded by the DOE). The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE....". The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”.
In addressing the nature of the violation for failing to have a written IEP in effect by the first day of the school year (i.e., whether it is procedural or substantive), the U.S. District Judge wrote:
“Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465 (S.D.N.Y. 2015)” (my emphases).
A district cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student[18]. 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[19]. The district has an affirmative obligation to offer the student a FAPE[20]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate[21].
The DOE failed to provide the Student with a FAPE for the SY at issue, in that it failed to: Timeously offer the Student “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[22] given that the IEP developed for the prior SY in October 2018 “expired” during October 2019, and timeously provide the Student with an appropriate PWN and SLL (Exhibit P-A-1 & -2). The IEP in question would therefore not have been “in effect” for the duration of the 2019-2020 SY. In the circumstances, I find that there was a denial of a FAPE for the 2019-2020 SY, which the DOE has nevertheless conceded.
Given the DOE’s decision to concede Prong I, and my above finding, the DOE has not discharged its burden in these proceedings to establish that it provided the Student a FAPE for the 2019-2020 SY. The Parents have accordingly met the first criterion of test set out in Burlington/Carter for tuition reimbursement.
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”[23]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”[24].
The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child”[25].
The Judges in the Gagliardo case wrote that “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 the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[26] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction.
Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence:
Parents’ representative presented detailed testimony by Parents’ Witness and the Parent and submitted documentary evidence in support of the Parents’ position that the Attending School placement was appropriate.
Parents’ Witness testified (T. P30-45): As to her educational and professional background; regarding the Attending School, including the children that are served and the types of disabilities or classifications that the students have/hold, the school’s goal and overall philosophy with respect to the provision of educational services, the approximate number of students in the school during the SY in issue; the number of students (10-12) and teachers (two teachers: two head teachers; or a lead teacher and either an assistant teacher or a co-teacher) in each classroom; the professional development and teacher training provided (30-hours of Orton-Gillingham training for new staff; various types of trainings that is different from year to year; training in the school’s Writing Program; training in the school’s Math Program from time to time; training in behavior management, also for new teachers; weekly meetings, which may include professional development; training in diversity, equity inclusion and recognizing child abuse; specialists being brought in to observe teachers and to work with them to improve their practice; other outside experts being brought in to speak to the faculty; and a budget being provided to cover one or two professional development workshops that teachers can attend of their own choosing); as to her supervision of the Student’s educational program; as to how the Student presents in the classroom and her learning challenges, which were described in detail (T. P36); as to the educational program and/or instructional methodologies and how these addressed the Student’s challenges (with very detailed testimony being provided with respect to the Student’s reading, writing, and mathematics challenges and how, through the Orton-Gillingham approach to reading (and similar approach to writing) and using Singapore Math and other strategies, she was able to make progress) (T. P37-41); as to how the school and the specialists monitored the Student’s progress, including the use of work sample analysis and observation, as well as formal assessments; as to the school adapted instruction for remote learning during the pandemic, with the aim to do their best to “duplicate as much multi-sensory teaching as they could through the Google Meet platform” (T. P42-44); and that the Student benefited from the school’s program.
Parent testified (T. P47-45): As to the challenges the Student experienced; that she and her husband attended the IEP meeting in person; as to the reason why they (Parents) chose to send the Student to the Attending School, after the investigations and enquiries made; that if the DOE had offered an IEP and a school placement that they believed was appropriate for the Student, they would have “absolutely” accepted the placement at a DOE or public school; that she signed an enrollment contract for the 2019-2020 SY and paid the tuition in full in installments totaling the sum of $68,500.00 (Exhibit P-C); and that Parent’s Witness was spot on in that after laying the foundation work in the Student’s first year at the Attending School, they (the school and/or the Parents) started to see all the progress during the second year (i.e., the SY in issue).
District representative did not cross-examine the Parent or Parents’ Witness, and I had no clarification questions for either witness.
I find that the Student’s program is specifically designed to cater to various classes or categories of students, and the program specifically includes students with language-based learning disabilities. A significant focus of the program, including the learning methodologies and the supports provided, are designed to meet the needs of this class or category of student. Based on the evaluating psychologist’s (“Psychologist”) evaluations and findings, the Student falls in this class or category (Exhibit P-H-11).
Additionally, there is detailed uncontested evidence presented by Parents’ Witness substantiating how the Student’s teachers specifically tailored the already specialized program – for this class or category of student – even further for this Student’s unique and individual needs.
The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the clear recommendations of the Psychologist or Parents’ Witness, supports the Parents’ representative’s assertion that the Attending School is an appropriate placement for the Student, including: it being a full-time placement in a small, structured, and self-contained classroom within a special educational school designed for students with average to above average intellect with language-based learning disabilities; including a low student to teacher ratio so that the Student can receive daily, individualized instruction, as well as curricular and instructional modifications to meet her needs in all academic areas; daily, explicit, systematic, and research-supported literacy instruction, using Orton-Gillingham or similar methods, to address her weaknesses in decoding, spelling, sight word development, and fluency (Exhibit P-H-11 & -12).
The testimony of the Parent and Parents’ Witness, and the Parents’ documentary evidence (Exhibits P-B, P-D, through P-H) establishes that the Attending School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit her to benefit from instruction for the 2019-2020 SY.
I also find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by the Parent and Parents’ Witness, the Student made progress during the 2019-2020 SY, (T. P39-42; 51). This is also supported by the contents of the Attending School’s progress report (Exhibit P-G).
The Parents have therefore met the second criterion of the test set out in Burlington/Carter for tuition reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA[27].
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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[28].
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice 10 business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense”[29].
This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools”[30].
Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision[31].
The hearing record reflects that the Parents notified the CSE, through their representatives, by letter dated August 21, 2019 of their intention to place the Student at the Attending School and seek public funding for the 2019-2020 SY (Exhibit P-I). In response to my request that the Parents provide proof of this notice having been sent, Parents’ representative provided an email confirmation of receipt by the DOE of the Parents’ 10-day notice (Exhibit P-I-2).
I find in this letter the Parents offered sufficient information to put the DOE on notice about the Parents’ concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of the Parents’ intention to place the Student at the Attending School for the 2019-2020 SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement[32].
Although it is apparent from the record that the Parents signed a contract enrolling the Student in the Attending School prior to the start of the 2019-2020 SY, namely on January 31, 2019 (Exhibit P-B-7), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”[33].
No evidence was presented that demonstrated that the Parents did not cooperate with the DOE or failed to challenge the appropriateness of an IEP in a timely manner, or failed to make their child available for evaluation by the District or had undertaken some or other unreasonable actions or conduct.
Parent testified that, in the beginning of “this whole process”, they had hoped that they would get a solution through the public school system that would be adequate for the Student, and that it was disappointing for them when the DOE failed to provide an appropriate solution (placement) (T. P50, L9-13).
Parents have therefore met the third criterion of the test set out in Burlington/Carter for tuition funding. Having met all three criteria of the Burlington/Carter test, the Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2019-2020 SY.
Amounts Claimed:
Parents filed an affidavit by the Attending School’s Chief Financial Officer (“Affiant”), wherein the Affiant confirmed the total annual tuition rate of $68, 550.00 owing to the Attending School for the 2019-2020 tuition for the Student’s enrolment (Exhibit P-C).
According to the Affiant, nine payments were made by the Parents totaling $68, 550.00, for the Student’s tuition at the Attending School for the 2019-2020 SY, as more fully set out in the Affiant’s affidavit, wherein the Affiant detailed the date, method and amount of each payment made (Exhibit P-C).
I do not find that the aforesaid tuition rate excessive or unreasonable, given what is offered by the Attending School as part of the program[34].
As the Parents are seeking tuition reimbursement and not tuition funding in the form of direct funding, a case for direct funding based upon need is not required to be supported by the record.
Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby ORDERED that, the DOE shall reimburse the Parents the tuition payments made to the Attending School for the Student’s placement at the Attending School for the 2019-2020 school year in the sum of $68, 550.00 (Sixty-Eight Thousand, Five Hundred and Fifty Dollars).
SO ORDERED.
DATED: June 07, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
-
-
-
-
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Due Process Complaint with Receipt
01/25/2021
3
B.
Enrollment Contract
01/31/2019
7
C.
Tuition Affidavit
02/19/2020
1
D.
Program Description
Undated
2
E.
Class Schedule
2019-2020
1
F.
Attendance
07/20/2020
1
G.
Progress Report
06/17/2020
17
H.
Neuropsychological Testing
01/__/2018
19
I.
Ten Day Notice of Unilateral Placement
08/21/2019
2
IHO EVIDENCE
Exhibit
Title
Date
Pages
-
-
-
-
APPENDIX
REDACTED
Footnotes
[1] The DPC was filed after business hours on January 25, 2021. The “Date of Request” is therefore reflected as the next business day (Exhibit P-A-3).
[2] U.S.C. § 1400 et seq.
[3] C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[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] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[10] Rowley, 458 U.S. at 203.
[11] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[12] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[13] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[14] NYS Educ. Law § 4404(1)(c).
[15] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007],
[16] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[17] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. (122 LRP 8348) (U.S. District Court, Southern District of New York) (21-CV-1033 (VEC)) (03/08/22).
[18] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).
[19] In re: Student with a Disability New York State Educational Agency.
[20] (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).
[21] (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].
[22] Rowley, 458 U.S. at 203.
[23] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[24] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[25] Gagliardo, 489 F.3d at 115.
[26] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[27] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under 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 education was unreasonable"].
[28] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see 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. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[29] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[30] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[31] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[32] Greenland Sch. Dist., 358 F.3d at 160.
[33] C.L., 744 F.3d at 840.
[34] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).