NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
In the Matter of [REDACTED] (hereinafter referred to as) the “Parent”), on behalf of his son, [REDACTED])
(hereinafter referred to as the “Student”)))
Petitioners,) Jeffrey J. Schiro, Esq.
) Impartial Hearing Officer
-against-)
) IHRS
BOARD OF EDUCATION OF THE)
[REDACTED] UNION FREE)
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Parent, pro se
For the School District:
[REDACTED], Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON NOVEMBER 4, 2021
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED FOR PHC ON JANUARY 24, 2022
For the Student:
[REDACTED], Parent, pro se
For the District:
[REDACTED], Esq., Attorney
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. On October 21, 2021, the school district received a due process complaint which initiated this matter (i.e., IHRS ). In that complaint, the parent asserts that the school district sabotaged an age-variance application it was ordered to file in a separate proceeding involving the same student with a disability (i.e., IHRS Case No. 552797). Among other relief, the parent seeks an Order directing the student’s placement in a special class within the school district, or alternatively, an Order directing the school district to file a renewed age-variance application (Ex. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On October 21, 2021, the Board of Education of the [REDACTED] (the “District”) appointed the undersigned to serve as the IHO in this matter (IHRS ). See 8 NYCRR § 200.5(j)(3)(i). On November 3, 2021, the District served the parent with a combined answer and motion to dismiss the complaint (Ex. IHO-II). See 8 NYCRR §§ 200.5(i)(4)-(5).
On November 4, 2021, a pre-hearing conference was held with the parties to clarify the hearing issues and discuss possible consolidation of IHRS with IHRS Case No. 552797. See 8 NYCRR §§ 200.5(j)(3)(ii)(a), (j)(3)(xi). The District opposed consolidation of IHRS with IHRS Case No. 552797 because of the presence of a parallel Article 78 proceeding initiated by the parent in New York State Supreme Court seeking similar relief to that articulated in the due process complaint which initiated IHRS (R. 7-10, 15-16, 22-25; Ex. IHO-II ex. F ex. C). After noting that consolidation of IHRS with IHRS Case No. 552797 would potentially delay scheduled proceedings in IHRS Case No. 552797, and/or prejudice the District by introducing new issues shortly before proceedings in IHRS Case No. 552797 were scheduled to start, decision on consolidation of IHRS with IHRS Case No. 552797 was reserved (R. 27-32).
On November 24, 2021, the District consented in writing to an amended due process complaint filed by the parent (Exs. IHO-III, IHO-VIII). On December 9, 2021, the District served the parent with a combined answer and motion to dismiss the amended complaint (Ex. IHO-IV). See 8 NYCRR §§ 200.5(i)(4)-(5). On January 24, 2022, a pre-hearing conference was held with the parties to set a briefing schedule on the District’s motion to dismiss (R. 35-44). Consistent with that briefing schedule, the parent filed his response in opposition to the District’s motion to dismiss on February 7, 2022 (Ex. IHO-V) and on February 22, 2022, the District filed its reply in support of its motion (Ex. IHO-VI).
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the amended due process complaint, which was received by the District on November 24, 2021, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. IHO-I, IHO-III, IHO-VI ex. L).[2] See 8 NYCRR § 200.1(zz)(7).
The student in this case has been the subject of twelve prior State-level administrative appeals.[3] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
At an August 19, 2021, pre-hearing conference in IHRS Case No. 552797, the parent was authorized to submit a written application for interim relief; namely, a motion for an Order directing the District to apply for an age-variance for a newly formed 12:1+1 special class within its middle school/high school, which would facilitate the student’s placement in that special class (Ex. IHO-VI at ¶¶ 1-2 ex. K at 33-35). On September 2, 2021, the parent filed his application for interim relief in IHRS Case No. 552797 (Exs. IHO-IV at ¶ 12, ex. E, IHO-VI at ¶ 3). On September 9, 2021, the District served its papers in opposition to the parent’s application (Exs. IHO-IV at ¶ 14, ex. F, IHO-VI at ¶ 4). On September 14, 2022, the undersigned issued an Interim Order in IHRS Case No. 552797 which granted the parent’s motion, stating that:
The District is ordered to initiate an application for an age waiver to the New York State Education Department with parental input; and
If the New York State Education Department approves the waiver, a CSE meeting should be held including the 12:1+1 special class teacher and the Student’s educational consultant to facilitate the student’s attendance in the class.
(Ex. IHO-IV at ¶ 15, ex. A at 15).
At an evidentiary hearing held on September 21, 2021, in IHRS Case No. 552797, the parent raised concerns about, and discussion with the parties was conducted on, the content and timing of the District’s age-variance application to the New York State Education Department (Ex. IHO-IV at ¶ 16, ex. B at 121-198). On October 1, 2021, the District submitted an age-variance application to the New York State Education Department, which included a 300-page addendum from the parent (Exs. IHO-IV at ¶ 17, ex. C, H, IHO-VI at ¶ 8). On October 14, 20221, the New York State Education Department denied the District’s age-variance application, stating:
Based on the district’s assertion that the discrepancy of the ages that would result from this variance are not in the best educational interests of any of the involved students and the lack of an educational justification that supports exceeding the age range, NYSED does not support approval of this application. Therefore, this 12:1+1 middle/high school special class age range variance is denied.
(Ex. IHO-IV at ¶ 43, ex. D).
On October 21, 2021, the District received a due process complaint from the parent asserting that the District violated the September 14, 2021, Interim Order and sabotaged the age-variance application (Exs. IHO-I at ¶ 17, IHO-II at ¶ 44, exs. A, D). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The District The District’s motion to dismiss the parent’s amended due process complaint should be granted. The parent’s due process complaint fails to meet the sufficiency requirements set forth in State law and regulations. The parent has also failed to state a claim upon which relief can be granted and the IHO lacks subject matter jurisdiction over the parent’s dispute. The District did not violate the September 14, 2021 Interim Order or the IHO’s subsequent implementation directions. The District did not sabotage the Ordered age-variance application (Exs. IHO-II, IHO-IV, IHO-VI).
B. The Parent The District’s motion to dismiss should be denied in its entirety. The District violated the letter and spirit of the September 14, 2021 Interim Order. The District also violated the IHO’s implementation directions, articulated at a September 21, 2021 hearing held in IHRS Case No. 552797. The District sabotaged the age-variance application in an effort to secure a denial of the application; preventing the student’s inclusion in the District’s 12:1+1 special class at its middle school/high school for the 2021/22 school year (Exs. IHO-I, IHO-III, IHO-V).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General IDEA Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
B. Motion to Dismiss
As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA; however, they should be used with caution and are appropriate in instances in which “the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify a genuine issue of material fact.” See J.D. v. Pawlet Sch. Dist., 224, F.3d 60, 69 (2d Cir. 2000); Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application of a Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011).
On November 3, 2021, the District moved to dismiss the parent’s due process complaint (Ex. IHO-II). Decision on the District’s motion was reserved until after a pre-hearing conference with the parties was held on November 4, 2021, and until after the parties’ submission of documentary evidence supporting their respective positions, as an evidentiary record must be established to provide an adequate record for review (Exs. IHO-IV, IHO-V, IHO-VI). See 8 NYCRR § 200.5(j)(3)(xii); Application of a Student with a Disability (Ardsley Union Free Sch. Dist.), Appeal No. 18-104 at 7 n.6 (SRO Nov. 14, 2018). Having reviewed the content of those submissions, I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the District’s motion to dismiss.
1. Subject Matter Jurisdiction The District correctly asserts that I lack subject matter jurisdiction over the dispute raised in the parent’s amended due process complaint (Exs. IHO-III, IHO-IV at ¶¶ 63-64, IHO-VI at ¶¶ 27-28). State regulations provide that “a parent or school district may file a due process complaint with respect to any matter relating to the identification, evaluation, or educational placement of a student with a disability,... or the provision of a free appropriate public education to such student.” 8 NYCRR § 200.5(i)(1). The age-variance application at issue here concerns the student’s eligibility for placement in the District’s newly created 12:1+1 special class in its middle school/high school, not the relative merits of his actual placement in that class.
To clarify the student’s eligibility for that class, the District was ordered, in a parallel proceeding involving the same student with a disability (i.e., IHRS Case No. 552797), to initiate an age-variance application to the New York State Education Department with parental input (Ex. IHO-IV at ¶ 15, ex. A at 15). To the extent that the amended complaint asserts that the District failed to implement the September 14, 2021 Interim Order rendered in IHRS Case No. 552797, I find that I lack the necessary jurisdiction to enforce that Order. It is well settled that the enforcement of an IHO’s order can only be properly sought by filing an administrative complaint with the State Education Department’s Office of Special Education pursuant to applicable federal and state regulations, or in federal court under 42 U.S.C. § 1983. See 34 C.F.R. §§ 300.151-300.153; 8 NYCRR § 200.5(l); A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7 (E.D.N.Y. 1998); Blazejewski v. Bd. of Educ., 560 F. Supp. 701 (W.D.N.Y. 1983); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 11-060 at 8 (SRO July 28, 2011); Application of a Child with a Disability (Wappingers Cent. Sch. Dist.), Appeal No. 06-130 (SRO Dec. 8, 2006); see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 78 n.13 (2d Cir. 2005) (noting that impartial hearing officers have no enforcement mechanism of their own).
Alternatively, even if I were to conclude that I possess the necessary jurisdiction to enforce the September 14, 2021, Interim Order, I would find that the District complied with that Order. The evidence contained in the hearing record demonstrates that on October 1, 2021, the District submitted an age-variance application to the New York State Education Department, in the format prescribed by the Commissioner of Education, along with over three hundred pages of parental input (Ex. IHO-IV at ¶ 17, exs. C, H, I).
2. District Compliance with Implementation Directions The crux of the parent’s complaint is that the District violated the “spirit” of the September 14, 2021 Interim Order, by failing to adhere to implementation directions given it at a hearing held on September 21, 2021 in IHRS Case No. 552797 (Exs. IHO-III, IHO-IV ex. B).[5]
After a lengthy discussion at the September 21, 2021, hearing about the content and timing of the District’s age-variance application to the New York State Education Department, I summarized my implementation directions to the District as follows:
Again, at this point I think I’m satisfied with the points discussed today, that the variance is going to be filed in an appropriate manner and to the extent that the School District has been directed to file this variance as opposed to it being sort of an organically generated request, I’ve clarified with [redacted] on the record sort of the scope of that and am satisfied that we have reached an understanding that certainly, the School District can communicate, but this is an order[ed] variance request as opposed to one that is generated from the School District organically, but otherwise the School District will be supplying the factual information requested for the SED application template and SED will make its analysis based on that factual perspective and picture.
(Ex. IHO-IV ex. B at 197-198).
From my review of the redacted age-variance application admitted into the hearing record, I find that it was prepared in a manner consistent with the implementation directions given at the September 21, 2021, hearing (Ex. IHO-IV ex. H). In its October 1, 2021, cover letter, the District noted that the age-variance application has been ordered by the undersigned, rather than an independent determination by the District that it was in the student’s best educational interests to secure such a variance (Ex. IHO-IV exs. B at 189-191, H at 1). The language contained in the October 1, 2021, cover letter is similar to that used in an August 22, 2018, cover letter to an age-variance application ordered by a different IHO in an earlier proceeding (Ex. IHO-VI exs. B at 189-191, H at 1, M). The categories contained in the Commissioner’s age-variance application form required the District to submit factual information about the student, the 12:1+1 special class at the District’s middle school/high school and alternate program and/or placement options (Ex. IHO-IV at ¶ 19 ex. I). This District’s responses in those categories did not run afoul of the implementation directions articulated at the September 21, 2021, hearing (Ex. IHO-IV at ¶¶ 19-37 ex. H).
Alternatively, in that section of the age-variance application form which prompted to District to set forth a plan of correction for the following year, whereby the student would attend a program with other students within his age range, the District included an analysis of why the 12:1+1 special class as its middle school/high school was not appropriate to meet the student’s unique needs (Ex. IHO-IV at ¶ 39, ex. H at 14). As that analysis was similar to those arguments it raised in opposition to the parent’s motion for interim relief in IHRS Case No. 552797 (Ex. IHO-IV exs. F, G), and did not include new factual information that had been withheld from the undersigned when the motion was pending (Ex. IHO-IV ex. B at 181, 186-187), I decline to find any violation of my implementation directions.
3. Remedies
Among other relief, the parent seeks an Order directing the student’s placement in a 12:1+1 special class within the District’s middle school/high school, or alternatively, an Order directing the school district to file a renewed age-variance application (Ex. IHO-III at 3). The District opposes these proposed remedies on sufficiency and jurisdictional grounds (Ex. IHO-IV at ¶¶ 21-24).
At the September 21, 2021 evidentiary hearing in IHRS Case No. 552797, I indicated to the parties that should I find that the student was denied a FAPE for the 2021/22 school year, and should I further find that the District argued against the age-variance within the submitted age-variance application, by asserting facts that were withheld when the motion for interim relief was pending, then I would consider the District’s noncompliance with my implementation directions in fashioning equitable relief (Ex. IHO-IV ex. B at 186-187).
Having determined in a January 28, 2022, Findings of Fact and Decision (in IHRS Case No. 522797) that the program recommended in the June 2021 IEP offered the student a FAPE in the LRE (Ex. IHO-VI ex. L), and having determined above that the District neither violated the express terms of the September 14, 2021 Interim Order (Ex. IHO-IV ex. A) nor subsequent directions given on the implementation of that Order (Ex. IHO-IV at ¶ 16, ex. B at 121-198), none of the parent’s proposed remedies are warranted here.
I have considered the parent’s remaining claims and have concluded that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The District’s motion to dismiss the parent’s complaint in IHRS Case No. 564303, as amended, is GRANTED and the amended complaint is hereby DISMISSED.
Dated: March 9, 2022
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to a State Review Officer (“SRO”) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plan to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
None
SCHOOL DISTRICT
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint (IHRS ), undated (rec’d 10/21/21), 3 pgs.
II. District’s Combined Answer & Motion to Dismiss, November 3, 2021, 14 pgs.
Ex. A – Interim Order (IHRS Case No. 552797), 9/14/21, 16 pgs.
Ex. B – Transcript of Proceedings (IHRS Case No. 552797), 9/21/21, 176 pgs.
Ex. C - Parental Input w/ attachments, 9/30/21, 322 pgs.
Ex. D – Letter to Superintendent from SED (variance denial), 10/14/21, 1 pg.
Ex. E – Parent’s Application for Interim Relief (IHRS Case No. 552797), undated, 19 pgs.
Ex. F – District’s Affidavit in Opposition (IHRS Case No. 552797), 9/9/21, 13 pgs.
Ex. A – Statement of Educational Justification, undated, 2 pgs.
Ex. B – Letter to Superintendent from SED (variance denial), 9/19/18, 1 pg.
Ex. C – Order, NYS Supreme Court, IAS Part 10 - Suffolk Co., 8/26/21, 1 pg.
Ex. G – Affidavit of PPS Director (IHRS Case No. 552797), 9/9/21, 5 pgs.
III. Amended Due Process Complaint (IHRS ), undated (rec’d 11/24/21), 3 pgs.
IV. District’s Combined Answer & Motion to Dismiss (IHRS ), 12/9/21, 24 pgs.
Ex. A – Interim Order (IHRS Case No. 552797), 9/14/21, 16 pgs.
Ex. B – Transcript of Proceedings (IHRS Case No. 552797), 9/21/21, 176 pgs.
Ex. C - Parental Input w/ attachments, 9/30/21, 322 pgs.
Ex. D – Letter to Superintendent from SED (variance denial), 10/14/21, 1 pg.
Ex. E – Parent’s Application for Interim Relief (IHRS Case No. 552797), undated, 19 pgs.
Ex. F – District’s Affidavit in Opposition (IHRS Case No. 552797), 9/9/21, 13 pgs.
Ex. A – Statement of Educational Justification, undated, 2 pgs.
Ex. B – Letter to Superintendent from SED (variance denial), 9/19/18, 1 pg.
Ex. C – Order, NYS Supreme Court, IAS Part 10 - Suffolk Co., 8/26/21, 1 pg.
Ex. G – Affidavit of PPS Director (IHRS Case No. 552797), 9/9/21, 5 pgs.
Ex. H – Redacted Variance Application, 10/1/21, 95 pgs.
Ex. I – SED Variance Request Format, undated, 7 pgs.
Ex. J – Article 78 Petition (Index No. 620459/2021), 10/29/21 (filed), 14 pgs.
V. Parent’s Affidavit in Opposition to District’s Motion to Dismiss, undated, 17 pgs.
VI. District’s Reply Affirmation in Support of Motion to Dismiss, 2/22/22, 27 pgs.
Ex. K – Transcript of Proceedings (IHRS Case No. 552797), 8/19/21, 30 pgs.
Ex. L – Individualized Education Program (IEP), 6/9/21, 22 pgs.
Ex. M – Variance Application Cover Letter, 8/22/18, 1 pg.
VII. Extension Order, 2/7/22, 1 pg.
VIII. Email to parent from school district attorney (District consent to amended DPC), 11/24/21, 1 pg.
Footnotes
[1] References to the transcript of the pre-hearing conference are noted as “R.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.” or “ex.”
[2] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[3] See Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.
[4] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[5] I interpret the parent’s phrasing of this part of his argument as a tacit acknowledgment that the implementation directions given at the September 21, 2021, hearing are not enforceable, since they were not reduced to a written Order.