NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBERS: 551856 - NYC: 208069
(CONSOLIDATED): 563869 - NYC: 219532
FINDINGS OF FACT AND DECISION
Case Number: 208069 (incorporating case # 219532)
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 04/27/2021 (and 10/14/2021)
Date(s) of Hearing: 10/31/2022
Actual Record Closed Date: 11/09/2022
Date of Decision: 11/14/2022
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 31, 2022
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
REDACTED (hereinafter referred to as “Parent”)
REDACTED (hereinafter referred to as “Parent’s Witness”)
For the Department of Education:
REDACTED (hereinafter referred to as “District’s representative”)
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”). Student’s eligibility for special education supports and services is not in dispute.
On April 27, 2021, Parent, through Parent’s representative firm, filed[2] a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Exhibit P-A) (hereinafter referred to as “DPC 1”). A subsequently filed DPC was filed for and on behalf of the Parent on October 14, 2021 (Exhibit P-B) by Parent’s representative under case number 219532 regarding the same Student (hereinafter referred to as “DPC 2”).
I was appointed to preside over both cases on August 4, 2022, following the recusal of the previously appointed hearing officer(s), to preside over the claims in the DPCs in terms of New York State regulations, and to conduct an impartial hearing(s) (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the two DPCs concerning the special education program(s) of the Student.
After considering the factors included under section 200.5(j)(3)(ii)(a)(4) and the representations from the parties’ representatives, I found that for the convenience of the parties (including, the Student) and in the interest of judicial efficiency, consolidation should be ordered to consolidate DPC 1 and DPC 2 pursuant to the New York State Regulations section 200.5(j)(3)(ii), namely, to consolidate “in the interests of judicial economy and the interests of the student”. On September 13, 2022 I granted an order consolidating the two matters (Exhibit P-C) and the IH took place on October 31, 2022.
It is asserted in DPC 1 and DPC 2 that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”) for the 2020-2021 and 2021-2022 school years (“SYs”), respectively. Parent is seeking, inter alia, a finding that the DOE denied Student a FAPE for the two SYs at issue and tuition reimbursement/funding for the cost of Student’s placement at the Attending School (defined on page 17) for the two SYs (Exhibit P-A-2; P-B-2).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[3] and its implementing regulations,[4] and the New York State Education Law[5] and its implementing regulations.[6]
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was: not putting on a case; neither calling any witnesses nor proposing any documents for admission to the record; and conceding Prong I, namely that it failed to provide Student with a FAPE for both SYs at issue (T. P20, L11-23). District’s representative made an opening statement confirming the concessions regarding Prong I and noting that the District would question Parent’s witnesses (T. P22, L13-25) and a closing statement emphasizing the equitable factors relied upon (T. P51, L1-20).
Parent, through the Parent’s representative, submitted seventeen documents in support of the Parent’s case, which proposed exhibits were admitted to the record at the IH (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 (T. P21, L4-9).
Parent’s disclosure included two ‘tuition affidavits’ affirmed by the Affiant (defined on page 16) (Exhibits P-F; P-M). These affidavits were admitted to the record as the Affiant’s attendance at the IH was not required for either cross-examination or clarifying questions (T. P21, L9-18). Parent (T. P47, L15-25; P48-49; P50, L1-13). Parent’s Witness testified at the IH (T. P27, L19-25; P28-46).
In an opening statement, Parent’s representative addressed, inter alia: how the DOE failed to provide Student with a FAPE (which has been conceded); that Parent enrolled Student in the Attending School after providing the required advanced notice; how the Attending School is an appropriate program for Student; Parent’s request for direct tuition funding based upon need; and the amounts claimed (T. P23, L4-25; P24-25; P26, L1-2).
In a closing statement, Parent’s representative addressed, inter alia: how the DOE failed to meet its burden to show that it provided Student a FAPE for the two SYs at issue; how the testimony and documentary evidence establishes that the Attending School was an appropriate placement; and the equities (T P51, L24-25; P52-53; P54, L1-21).
PREVAILING PARTY
Parent is the prevailing party, and an award or Order is granted in favor of Parent.
LEGAL FRAMEWORK
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.[7]
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.[8]
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,[9] and default judgments are disfavored by the federal courts.[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]
School districts are not required to “maximize” the potential of students with disabilities,[12] 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.’”[13] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[14] The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.[15]
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 applies in this case.[16]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[17]
FINDINGS OF FACT AND DECISION
Prong I - Denial of a FAPE:
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.”[18]
Instead, the DOE made a concession that it failed to provide Student with a FAPE for the 2020-2021 and 2021-2022 SYs. Given the DOE’s election to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for those SYs. Parent has accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding.
Prong II - Appropriateness of the Parent’s 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.”[19] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[20] 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.”[21] 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”[22] (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 on Record:
Parent’s representative presented detailed testimony by Parent’s Witness, the school supervisor at the Attending School and submitted documentary evidence in support of the Parent’s position that the Attending School placement was an appropriate placement for the two SYs at issue.
Parent’s Witness 1 testified as to:
Witness’s educational background, credentials, title, and job responsibilities during the two SYs in question; how the Attending School was founded, providing a description of the program, where the school is housed, and how it provides for opportunities for special education students to engage with general education peers, noting the three opportunities during the school day; how the program is designed for students with behavioral challenges, academically delayed, and who are usually language deficient; how the school has careful data collection procedures on a consistent hourly basis for all students that have behavior plans to make sure they are receiving data-driven instruction, and that “we are moving forward based on … the development and response to instruction”.
Witness’s familiarity with Student during the two SYs at issue, including observing Student in and out of the classroom, coordinating with Student’s staff, overseeing Student’s individualized plan and data collection, making sure Student made adequate and significant progress; the grades Student was in, and the number of students in the classrooms; the teacher-to student ratios in the classrooms; the names and qualifications of Student’s teachers; Student’s behavioral challenges both in and out of the classroom, including inter alia difficulty with organizational skills, responding to and following through with any kind of direction, processing information, and self-regulating.
Witness’s familiarity with Student’s social or emotional challenges; how social challenges lead to physical manifestations and other inappropriate behavior; Student’s academic challenges, including details of Student’s performance levels relating to math, language, reading and writing, decoding, as well as Student lack of content area instruction or experiential knowledge; how the programs for the two SYs were designed to address Student’s particular needs, including conducting a functional behavior assessment to identify Student’s challenging behaviors and developing a behavior intervention plan to include, inter alia, instructional communicative replacements, with examples provided of the various interventions included in the “treatment plan”, which were individualized and incorporated a “great comprehensive list of small incremental goals for each targeted area, language, communication, social behavior, as well as the content area of math, reading, and writing”.
The meaningful progress which Student made for the 2020-2021 and 2021-2022 SYs, providing information how Student progressed behaviorally, socially, and emotionally, as well as academically in language, math, reading and literacy, written expression, with examples provided; the related services that Student received from “appropriately licensed and certified professionals in their respective fields”; and the Attending School’s program being an accredited program.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, including those with learning disabilities, behavioral issues and attention deficit disorders, requiring a small class size with a low student-to-teacher ratio. The entire program, including the learning methodologies and the supports provided were all designed to meet the needs of this class or category of student. The Student falls in this class or category.
The detailed evidence presented by Parent’s Witness substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs, was uncontested and credible. The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parent’s Witness, supports the Parent’s assertion that the Attending School was an appropriate placement for Student for those two SYs.
The testimony of Parent’s Witness, and the Parent’s documentary evidence (Exhibits P-E, P-G, P-H, P-I, P-L, P-N, P-O, and P-P) establishes that the Attending School was appropriate and provided Student with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by such services that were necessary to permit Student to benefit from instruction, for the 2020-2021 and 2021-2022 SYs.
I find that, based on the Student’s attendance at the Attending School for the two SYs in question, as testified to by Parent’s Witness and detailed in the progress reports, Student made progress. Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding/reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA.[23]
The IDEA also provides that reimbursement/funding 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.[24]
The IDEA allows that reimbursement/funding 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 ten 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.”[25]
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.”[26]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision[27].
The hearing record reflects that Parent notified the CSE by letters dated March 3, 2021 (Exhibit P-K) and August 16, 2021 (Exhibit P-Q), of Parent’s intention to enroll Student at the Attending School and seek public funding for the 2020-2021 and 2021-2022 SYs, respectively.
I find that in these letters Parent offered information to put the DOE on notice about Parent’s concern regarding the CSE’s failure to make “proper or adequate” placement recommendations and informed of Parent’s intentions of enrolling Student in a private special education program and to seek public funding therefore, giving the DOE an opportunity to cure any deficiencies (subject to what is addressed below regarding the first ten-day notice), which is the intent underlying the ten-day notice requirement.[28]
Although it is apparent from the record that Parent signed a contract enrolling Student in the Attending School prior to the start of the 2020-2021 and 2021-2022 SYs, namely on August 20, 2020 and August 18, 2021, respectively (Exhibit P-L-2), 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.”[29]
I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parent’s claim for the 2021-2022 SY and the relief being granted. This notice was sent prior to the start of the 2021-2022 SY and the DOE was put on notice.
Parent however only provided the ten-day notice for the 2020-2021 SY at the beginning of March 2021, after approximately two-thirds of the SY had passed. Parent however had already signed the enrolment contract back in August 2020, prior to the start of the SY, yet gave no advance notice to the DOE.
Parent sent a letter to the CSE on September 16, 2021 (Exhibit P-J-1), almost four weeks after Parent signed the enrolment contract, namely on August 20, 2020, informing the CSE that the academic, social, and behavioral needs of Student could no longer be met in the general education classroom. In this letter, which is dated August 28, 2020, Parent requested that the DOE evaluate and place Student in a full-time special education classroom (Exhibit P-J-2). No mention was made in this letter of any intention to place Student at the Attending School, and to seek public funding, notwithstanding Parent’s actions enrolling Student at the Attending School approximately four weeks prior to it being sent. Parent was not forthcoming with this information.
I find that the delay in notifying the CSE until March 3, 2021 is an equitable factor warranting a deduction of the amount claimed for the 2020-2021 SY, also factoring in time for the DOE to have responded to Parent’s notice if it were to have done so. The 60-day period reference by District’s representative (T. P51, L10-12) expired in the middle of November 2021, yet Parent still waited more than three and a half months before sending the CSE the ten-day notice, even though Student was enrolled at the Attending School prior to the start of the SY.
Total denial of Parent’s claim for the 2020-2021 SY is however not warranted, especially since the DOE conceded that it failed to provide Student with a FAPE for the SY at issue, however I do not accept Parent’s representative assertions that it would be inequitable under the specific facts of this case to reduce funding (T. P52, L24-25; P53, L1-13; P54, L7-10). An appropriate adjustment has been made to the amount awarded.
Amounts Claimed:
Affiant, employed at the Attending School as school director, confirmed, as of October 24, 2022, the total contracted annual tuition rate of $100,000.00, inclusive of all related services, owing to the Attending School for the 2020-2021 SY for Student’s enrolment from September 10, 2020 through June 14, 2021, less the $0.00 paid by Parent leaving a balance of $100,000.00 due to the Attending School (Exhibit P-F). Affiant also confirmed, as of October 24, 2022, the total contracted annual tuition rate of $100,000.00, inclusive of all related services, owing to the Attending School for the 2021-2022 SY for Student’s enrolment from September 2, 2021 through June 17, 2022, less the $0.00 paid by Parent leaving a balance of $100,000.00 due to the Attending School (Exhibit P-M). Affiant confirmed that for both SYs an amount of $5,000.00 of the tuition rate was applied towards Hebrew studies. A reduction for this is factored into the award.
No additional equitable factors were raised by the DOE. I also do not find any other factors applicable to warrant a reduction of the claims for tuition funding based upon equitable factors.
After factoring in the above equitable factors, I find the following amounts are to be awarded to Parent for the DOE’s denial of a FAPE for the 2020-2021 and 2021-2022 SYs:
2020-2021 SY
= | School days after expiry of the period set out in Parent’s ten-day notice Exhibit P-K[30]______________ | X Tuition (less religious instruction) |
School days based on Exhibit H | ||
= | 54_ | X $95,000.00 |
163 | ||
= | 33.13% | X $95,000.00 |
= | $ 31,472.39 |
2021-2022 SY
= | Tuition less religious instruction |
=
$100,000.00
- $ 5,000.00
=
$ 95,000.00
Parent testified that Parent’s approximate income for the 2020-2021 and 2021-2022 SYs was $Redacted.00 and $Redacted, respectively (T. P49, L14-23). This evidence was uncontested (T. P50, L2-6). I find that a case for direct funding based upon need has been made out.
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Having met all three criteria of the Burlington/Carter test, Parent is entitled to reimbursement/funding for the cost of Student’s placement at the Attending School for the 2020-2021 and 2021-2022 SYs.
The tuition amounts being awarded are the amounts determined due as an equitable remedy in the circumstances of this case and should not be adjusted either up or down, as the remedial purpose of the IDEA is being served by those amounts.
DPC 2 included as part of the proposed solution a request for an order for the development and implementation of a behavioral plan for the 2021-2022 SY (Exhibit P-B-2). Although this was not pursued as part of the relief covered in Parent’s representative’s closing statement, the evidence on record confirms that the Attending School did in fact prepare and implement such a “treatment plan”, which was thorough, comprehensive, and effective, contributing to the finding that the Attending School was an appropriate placement for the 2021-2022 SY. Accordingly, to the extent that the relief was still being pursued it would not be warranted and has not been ordered.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2020-2021 school year in the sum of $31,472.39 (Thirty-One Thousand, Four Hundred and Seventy-Two Hundred Dollars, Thirty-Nine Cents), minus any payments already made by the DOE to the Attending School for the Student’s tuition for the 2020-2021 school year under or in terms of Pendency (if applicable).
- • FURTHER ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2021-2022 school year in the sum of $95,000.00 (Ninety-Five Thousand Dollars), minus any payments already made by the DOE to the Attending School for the Student’s tuition for the 2021-2022 school year under or in terms of Pendency (if applicable).
SO ORDERED.
DATED: November 14, 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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
Exhibit | Document | Date | Pages |
P-A | Request for Due Process Proceeding and Notice of Appearance 2020-2021 | 04/26/2022 | 4 |
P-B | Request for Due Process Proceeding and Notice of Appearance 2021-2022 | 10/14/2022 | 5 |
P-C | Order of Consolidation | 09/13/2022 | 7 |
P-D | IEP | 11/18/2020 | 18 |
P-E | Student Contract, Program Description, and Curriculum 2020-2021 | 08/20/2021 | 16 |
P-F | Affirmations regarding Tuition Breakdown and Payments 2020-2021 | 10/24/2022 | 2 |
P-G | Curriculum Schedule 2020-2021 | 2020-2021 | 1 |
P-H | Student Attendance 2020-2021 | 2020-2021 | 1 |
P-I | Assessments, Plans, and Reports 2020-2021 | Various | 53 |
P-J | Request for IEP and Placement | 09/16/2020 | 2 |
P-K | Ten Day Notice from Parent to DOE | 03/03/2021 | 2 |
P-L | Student Contract, Program Description, and Curriculum 2021-2022 | 08/18/2021 | 17 |
P-M | Affirmations regarding Tuition Breakdown and Payments 2021-2022 | 10/24/2022 | 2 |
P-N | Curriculum Schedule 2021-2022 | 2021-2022 | 1 |
P-O | Student Attendance 2021-2022 | 2021-2022 | 1 |
P-P | Assessments, Plans, and Reports 2021-2022 | Various | 44 |
P-Q | Ten Day Notice from Parent to DOE | 08/16/2021 | 2 |
DOE’S EXHIBITS
Exhibit | Document | Date | Pages |
- | - | - | - |
IHO’S EXHIBITS
Exhibit | Document | Date | Pages |
- | - | - | - |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] DPC 1 appears to have been submitted at 4:49pm to the Impartial Hearing Office on April 26, 2021. The request is however reflected in IHS as having been requested on April 27, 2021. The email concerned however also reflects the latter date on the top left-hand corner (Exhibit P-A-4).
[3] U.S.C. § 1400 et seq.
[4] C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] NYCRR § Part 200.
[7] Bd. of Educ. v. Rowley, 458 U.S. 206, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 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].
[9] U.S.C. § 1415[f][3][E][i].
[10] 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.
[11] Rowley, 458 U.S. at 203.
[12] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[15] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[16] NYS Educ. Law § 4404(1)(c).
[17] 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 Bd.of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[19] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[20] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[21] Gagliardo, 489 F.3d at 115.
[22] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[23] 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"].
[24] 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].
[25] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[26] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[27] 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].
[28] Greenland Sch. Dist., 358 F.3d at 160.
[29] C.L., 744 F.3d at 840.
[30] Absent days have not been factored in.