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NYSED # 553111 / NYC # 209215
FINDINGS OF FACT AND DECISION
Case Number: 209215
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 06/30/2021
Hearing Requested by: REDACTED (“Parents”)
Date of Hearing: 06/01/2022
Record Close Date: 06/01/2022
Date of Decision: 06/06/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 01, 2022
For the Student:
REDACTED (hereinafter referred to as “Parents’ representatives”)
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
BACKGROUND AND PROCEDURAL HISTORY
Student is an 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 June 30, 2021, 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 June 30, 2021, to preside over the claims in the DPC in terms of 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 an IH. At a status conference (“SC”) held on April 8, 2022, it was noted that the settlement negotiations had stalled or were heading where they needed to proceed, and it was agreed to schedule the IH for June 1, and 2, 2022.
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA[1], and its implementing regulations[2], and the New York State Education Law[3], and its implementing regulations[4].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At the IH held on June 1, 2022, the District’s representative confirmed that the DOE was not putting on a case in the sense that it would not be calling witnesses, but that it intended to submit documentation for admission. I enquired 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 it was indeed being conceded by the DOE (i.e., Prong I was conceded by the DOE at the IH on the record).
Notwithstanding Parents’ representatives’ objections, noted on the record[5], the 7 documents proposed by District’s representative were admitted to the record and are listed below.
In an opening statement at the IH, District representative: confirmed it would not be putting on a case regarding Prong I; asserted that, as to Prong II, the Parents have the burden to show that the unilateral placement at the Attending School is appropriate for the Student and that any reimbursement for tuition costs, social skill groups, and high school counselling, to the extent those costs are in addition to the tuition costs, would be warranted.
The DOE waived its closing statement.
Parents:
The Parents, through the Parents’ representative, submitted 43 documents in support of the Parents’ case. All the proposed exhibits, save for proposed exhibits P-L, P-PP, and P-QQ, 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.
Exhibits P-PP and P-QQ were admitted into evidence once those witnesses were called to testify, and each witness verified the contents of their respective unsigned affidavit and the contents thereof as true and correct, after being sworn in or placed under oath.
Parent and Parent’s Witness were required for cross-examination and/or clarifying questions and appeared at the IH for that purpose. Parent provided additional direct testimony as proposed exhibit L was not being admitted to the record. Parents’ representatives chose to close the Parents’ case without calling the deponent to proposed exhibit L as a witness to testify, and therefore, in accordance with my policy pertaining to the admission of affidavits presented at the SC held on April 8, 2022, proposed exhibit L was excluded from the record.
In an opening statement at the IH, Parents’ representatives, inter alia:
Provided information regarding the school that the Student is attending for the 2021-2022 school year (“SY”); spoke to the Student’s Diagnosis and the challenges that the Student faces, as well as the program that the Student needs to make meaningful educational progress; summarized the documentary evidence proffered in support of the Parents’ case and how it supports a finding that the DOE failed to provide the Student with a FAPE, which had been conceded; mentioned the two affidavits (and supporting testamentary evidence) being proffered in support of Prong II and that the Parents had fully cooperated with the DOE (Prong III); and argued that at the conclusion of the hearing there would be more than sufficient evidence to demonstrate that the evidence is overwhelming in favor of the Student and his Parents and that they will meet their burden, and that no circumstances would deny or preclude relief from being awarded, which relief was spelled out.
PREVAILING PARTY
The 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 2021-2022 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a FAPE. Parents are seeking, inter alia, tuition reimbursement for the cost of the Student’s placement at the Attending School for the 2021-2022 extended SY (Exhibit P-A-13).
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].
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[14].
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[15].
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 parents’ claim[16].
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 2021-2022 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.”[17] There was no explanation offered, let alone a cogent and responsive one.
Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided the Student a FAPE for the 2021-2022 SY. Parents have accordingly met the first criterion of the three Burlington/Carter criteria 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”[18]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”[19].
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”[20].
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”[21] (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.
A District is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP[22].
Evidence on record:
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 (Exhibit PP) as to: His education, work experience and duties (par. 1 to 6); the program offered and the learning approach adopted at the Attending School, including related services offered (par. 7 to 12; 24); the degrees and certifications of the school’s head-teachers (all being NY State certified in Special Education) and assistant-teachers (par. 13 & 21), including those relevant to the Student (par. 21); all related service therapists being licensed and certified in their respective areas to practice in New York State (par. 13); the training, sharing and collaborative environment fostered (par. 14 to 16; 35); the enrollment and student-to-teacher ratio specific to the Student’s classroom (par. 21); how the Student’s Diagnosis impairs all areas of his functioning and his ability to access mainstream or slightly modified curriculum (par. 22, 23, 26 & 27); how the Attending School individualizes the Student’s program, from developing an individualized sensory diet to creating a 12-month educational plan upon careful consideration of the Student’s educational profile (par. 26 & 31); the evaluations that are conducted (par. 31); the related services provided (par. 32); the class schedule designed for the Student (par. 33; Exhibit M); and the Student’s progress made at the Attending School during the 2021-2022 SY (Exhibit P-OO, par. 24, 25, & 37).
Parent testified (Exhibit P-QQ) as to: The Student’s Diagnosis impacting all domains and his struggles (par. 4 & 5); the program and curriculum the Student requires (par. 6 to 8); and the many ways in which the Student has progressed during the current SY, providing seven specific examples in support (par. 29).
District representative had some limited cross-examination for Parent and Parents’ Witness, which neither availed the DOE nor prevented the Parents from meeting their burden.
I find that the Student’s program is specifically designed to cater to a class or category of students, namely those with language-based learning disabilities. The entire program, including the learning methodologies and the supports provided are all designed to meet the needs of this class or category of student. The Student falls in this class or category, or as Parents’ Witness testified “[Attending School] is the type of educational program that could help … him develop across all domains” (Exhibit P-PP-5, par. 23).
Additionally, there is detailed uncontested evidence presented by Parents’ Witness substantiating how the Student’s teachers specifically tailor/ed the already specialized program – for the 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 evaluating psychologist (“Author”) or Parents’ Witness, supports the Parents’ representatives’ assertion that the Attending School is an appropriate placement for the Student, including: being a specialized program or placement where the Student receives 1:1 instruction as part of a 12-month program; a mix of individual and small group speech and language therapy; occupational therapy services maintained weekly to address vulnerabilities in visual-spatial and visual-motor skills, sensory processing and adaptive skills; counselling (individual and small group format), to assist with social skills and development of copying skills, vulnerabilities in self-regulation and anxiety; participation in weekly social skills groups; and close communication between home and school (Exhibits P-I-11 & -12; DOE-1-42; P-PP-7).
The testimony of the Parent and Parents’ Witness, and the Parents’ documentary evidence (Exhibits P-J, P-K, P-M through P-HH) establishes that the Attending School is appropriate and provides the Student with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction, for the 2021-2022 SY.
I 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 has made progress during the 2021-2022 SY, which will likely continue for the remainder of the SY that is almost over (Exhibit P-OO, par. 24, 25, & 37; P-QQ-3, par. 29). This is also supported by the contents of the Attending School’s progress reports (Exhibits P-O, P-P, P-Q, P-Y, P-Z, and P-AA).
The Parents have therefore met the second criterion of the three Burlington/Carter criteria for tuition reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA[23].
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[24].
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”[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 is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision[27].
The hearing record reflects that the Parents notified the CSE, through their representatives, by letter dated June 15, 2021 (Exhibit P-B), emailed on June 15, 2021 (Exhibit P-C), of their intention to place the Student at the Attending School and seek public funding for the 2021-2022 extended SY (Exhibit P-QQ-3, par. 23).
I find that 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 2021-2022 extended SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement[28]. The DOE also acknowledged receipt of the Parents’ 10-day notice (Exhibit P-D-1).
Although it is apparent from the record that the Parents signed[29] a contract enrolling the Student in the Attending School prior to the start of the 2021-2022 extended SY, namely on April 08, 2021 (Exhibit P-K-4), 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”[30].
Parent attested that he fully cooperated with the DOE at all times and shared information and reports about the Student, which the DOE did not dispute (Exhibit P-QQ-3, par. 28).
Parents have therefore met the third criterion set forth 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 2021-2022 extended SY.
Amounts Claimed:
Parent confirmed the total annual tuition rate of $110,000.00 owing to the Attending School for the 2021-2022 tuition for the Student’s enrolment.
According to Parent, four amounts were paid by him totaling $110,000.00, for the Student’s tuition at the Attending School for the 2021-2022 extended SY, as more fully set out in Student Contract Form (Exhibit P-K). Proof of the Parent’s payments are admitted into the record (Exhibit P-II) and the amounts of the payments, which are reflected as electronic withdrawals on the relevant statements, match the payment amounts reflected in the payment schedule (Exhibit P-K-2).
Based upon the DOE’s program recommendation for the Student for the 2021-2022 extended SY, as more fully set out in the IEP dated February 09, 2021 (Exhibit DOE-1-43 & -48), and Parents’ Witness’ testimony (Exhibit P-PP, par. 29 & 36) there is no dispute that the Student requires and is entitled to receive the provision of school services during the summer months as a necessary element of a FAPE (i.e., a 12-month program). This is also supported by the evaluators that assessed the Student and Student’s Diagnosis (Exhibit P-H-9; P-I-12). Accordingly, tuition reimbursement for the extended SY is being awarded.
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, for the extended SY[31].
Parents’ representatives made clear that the Parents are seeking tuition reimbursement and not tuition funding in the form of direct funding. Therefore, a case for direct funding based upon need is not required to be supported by the record.
Transportation:
Parents sought, as part of the proposed solution, an award for bus transportation to and from the Attending School, and funding for such transportation if the District fails to provide it (Exhibit P-A-13).
An order for transport for the remainder of the SY is provided for in the relief granted.
Parent testified that the Student takes the bus to school but that there were two days that this did not occur as the bus matron called (telephoned) to inform that the bus driver had called (telephoned) in sick and that there was no replacement driver. Parents used Uber to take the Student to school and are seeking reimbursement in the sum of $116.19 (Exhibit P-QQ, par. 30 and 32).
Author recommended transportation services on an air-conditioned vehicle with limited travel time (Exhibit P-I-12). It is noted from Student’s IEP that the DOE recommended that the Student needs transportation from the closest safe curb location to school as a special transportation accommodation/service by reason of Student’s Diagnosis (Exhibit DOE-1-46).
As public transportation would not guarantee either recommendation, but more specifically transportation from the closest safe curb location to school, the Parents are entitled to reimbursement for using a private service.
Parents submitted Uber receipts for these costs into evidence (Exhibits P-O). The trip on March 3, 2022, was round-trip in the morning, but no evidence was presented to explain why the person accompanying the Student needed to use the same car service after dropping off the Student to return home, as opposed to public transport. Additionally, the UberX VIP service was used, and it is unclear whether the round-trip may or may not have included waiting time. Accordingly, the cost for the trip of April 8, 2022, will be used as the basis for calculating the amount to be reimbursed for dropping-off the Student on two occasions, namely $51.72 ($25.86 x 2).
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 2021-2022 extended school year in the sum of $110,000.00 (One Hundred and Ten Thousand Dollars).
- • FURTHER ORDERED that, the DOE shall continue to provide bus transportation to the Student, for the Student’s attendance at the Attending School for the remainder of the school year.
- • FURTHER ORDERED that, the DOE shall reimburse the Parents’ transportation costs in the sum of $51.72 (Fifty-One Dollars, Seventy-Two Cents).
SO ORDERED.
DATED: June 06, 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
1.
Individualized Education Program (IEP)
05/18/2021
50
2.
IEP Attendance List
05/18/2021
1
3.
Prior Written Notice (Recommendation)
06/19/2021
3
4.
School Location Letter
06/19/2021
2
5.
Mid-Year Academic Report
12/18/2020
8
6.
Speech Report
12/18/2020
7
7.
Occupational Therapy Report
12/18/2020
6
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Processed Demand for Due Process
06/30/2021
15
B.
10 Day Notice
06/15/2021
2
C.
Receipt of 10-Day Notice Letter
06/15/2021
1
D.
DOE Determination Report
06/22/2021
2
E.
Email Correspondence re: Neuropsychological Evaluation
05/07/2020
2
F.
Rejection Letter
09/01/2021
1
G.
Rejection Letter Fax Confirmation
09/02/2021
1
H.
REDACTED Neurodevelopmental Evaluation - REDACTED
12/12/2015
16
I.
Neuropsychological Evaluation – Author
07/25/2019
17
J.
Program Description
Undated
2
K.
Enrollment Contract
04/08/2021
4
L.
-
-
-
M.
Class Schedule
2021-2022
2
N.
2021-2022 Distance Learning Plan
Undated
5
O.
Occupational Therapy Report
12/18/2021
6
P.
Speech and Language Report
12/18/2021
7
Q.
Mid-Year Academic Report and Assessment Summary
12/18/2021
8
R.
Classroom Routines Academic Goals
12/__/2021
2
S.
Language Arts Goals
12/__/2021
3
T.
Literacy Academic Goals
12/__/2021
2
U.
Math Academic Goals
12/__/2021
2
V.
Writing Academic Goals
12/__/2021
2
W.
Speech Therapy Goals
12/__/2021
4
X.
Occupational Therapy Goals
12/__/2021
2
Y.
Occupational Therapy Report
12/17/2021
7
Z.
Speech and Language Report
12/17/2021
6
AA.
Academic Report and Assessment Summary
12/17/2021
7
BB.
Classroom Routines Academic Goals
12/__/2021
2
CC.
Language Arts Goals
12/__/2021
3
DD.
Literacy Academic Goals
12/__/2021
2
EE.
Math Academic Goals
12/__/2021
1
FF.
Writing Academic Goals
12/__/2021
1
GG.
Speech Therapy Goals
12/__/2021
4
HH.
Occupational Therapy Goals
12/__/2021
2
II.
Tuition Proof of Payments
Various
4
JJ.
Parents’ Witness Resume
Undated
4
KK.
Subpoena Duces Tecum
04/14/2022
2
LL.
Subpoena Duces Tecum Fax Confirmation
04/14/2022
1
MM.
Email Correspondence re: Reports for IEP Meeting
02/09/2021
3
NN.
Author Resume
Undated
10
OO.
Transportation Proof of Payments
Various
2
PP.
Parents’ Witness Testimony Affidavit
05/26/2022
8
QQ.
Parent Testimony Affidavit
05/27/2022
4
IHO EVIDENCE
Exhibit
Title
Date
Pages
IHO-I
Email from Parents’ representative to IHO and IHO’s reply
06/02/2022
1
APPENDIX
REDACTED
Footnotes
[1] U.S.C. § 1400 et seq.
[2] C.F.R. § 300 et seq.
[3] Educ. Law Art. 89 § 4404 et seq.
[4] NYCRR § Part 200.
[5] At the time of writing this decision the transcript of the IH was not available.
[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] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[15] NYS Educ. Law § 4404(1)(c).
[16] 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].
[17] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[18] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[19] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[20] Gagliardo, 489 F.3d at 115.
[21] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[22] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.
[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] Parents’ representative pointed out by email correspondence (see Exhibit IHO-I) that the contract was signed electronically (Exhibit P-K-4).
[30] C.L., 744 F.3d at 840.
[31] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).