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CASE NUMBER: 565062 - NYC: 220526
FINDINGS OF FACT AND DECISION
Case Number: 220526
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 10/28/2021
Hearing Requested by: REDACTED (“Parent”)
Date of Hearing: 06/09/2022
Record Close Date: 06/09/2022
Date of Decision: 06/20/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 09, 2022:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
Parent
REDACTED (hereinafter referred to as “Parent’s Witness”)
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s representative”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old child 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 October 28, 2021, the Parent, through the Parent’s representative firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on March 23, 2022, 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 claims in the DPC relate to the Student’s special education program and the provision of related services for the 2021-2022 SY, asserting inter alia that: based on the delay in convening a new Individualized Education Program (“IEP”) meeting to recommend a free and appropriate public education (“FAPE”) or services; the March 29, 2017 Individualized Education Services Program (“IESP”)[1] is now outdated and expired; the delay in convening an IEP meeting and recommending a proper placement and implementing the services is a denial of a FAPE (Exhibit P-A-2). Parent is seeking an order, inter alia, that the DOE continue to fund the program outlined in the IESP dated March 29, 2017 at the Provider’s prevailing rate (Exhibit P-A-3).
On Order on Pendency was granted on April 13, 2022 (Exhibit IHO-I)
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA[2], and its implementing regulations[3], and the New York State Education Law[4], and its implementing regulations[5].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At the IH held on June 09, 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 or submitting any documentation in support of the District’s case.
In an opening statement District’s representative asserted: that the Parent is agreeing with the mandated Services as per the Student’s IESP; the issues for the record, namely: i) the special education teacher support services (“SETSS”) and related services are based upon 36 weeks, based on 180-days vs 40 weeks as claimed by the Parent’s representative; ii) from the DOE’s notes, the Student had been receiving occupational therapy since the beginning of the school year, it is believed that the Student had been receiving speech and language therapy (“S/L”) based on there being a speech progress report (none was disclosed by either party), and that the DOE is unsure if physical therapy (“PT”) has been provided; and iii) the DOE is objecting to the enhanced rate in this matter.
In a closing statement District’s representative asserted that: the DOE and the Parent are agreeing with the number of SETSS and related services mandated in the IESP; the Student was receiving OT, but did not receive S/L and PT and is entitled to 36 hours for each service; the DOE is objecting to the enhanced rate which is excessive – referencing Parent’s Witness’s evidence; also referencing the absence of a call list and contract in evidence that she signed with the Agency.
Parent:
Parent, through the Parent’s representative, submitted 6 documents in support of the Parent’s case. The proposed exhibits were admitted to the record (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence. The deponents to the affidavits (Exhibits P-D, and P-E) were required for cross-examination purposes and/or clarifying questions.
In an opening statement Parent’s representative asserted, inter alia:
That the Student was mandated for the Services (defined on page 21) in the Student’s IESP dated March 29, 2017 and that the DOE has failed to hold an IEP meeting since then, despite the District’s obligation under the IDEA to do so yearly; that the DOE failed to provide the Services; the Parent sent a 10-day notice (referencing Exhibit P-C); the DOE did nothing, so the Parent did what she said she would do and sought to implement the IESP on her own; the Student has not received S/L and PT; that the Parent was seeking an order that the DOE be directed to fund the program at the reasonable market rate; and issue a bank of hours as set forth in the Parent’s affidavit.
In a closing statement Parent’s representative asserted that: the DOE presented no evidence; that the burden is on the DOE; the Student did not receive any S/L and PT; OT is not part of the mandate and therefore it is not relevant; there is no evidence as to why the DOE objects to the rate; the DOE was given 10-day notice. Parent’s representative reiterated the relief sought, but added that the DOE should also be directed to reconvene. District’s representative stated in response that this latter relief could be included in the order.
PREVAILING PARTY
Parent is the prevailing party, and an award or Order is granted in her favor.
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[6].
If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits[7].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[8], and default judgments are disfavored by the federal courts[9]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[10].
School districts are not required to “maximize” the potential of students with disabilities[11], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[12]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[13].
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement, which exception does not apply in this case[14].
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[15].
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE[16].
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA[17].
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
This case involves a parentally placed student with an IESP rather than an IEP. Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them[18].
The IDEA does not confer entitlement to students enrolled in nonpublic schools to all the special education programs or related services such students would receive if they attended public schools.[19] Instead, the IDEA requires school districts to participate in a consultation process for making special education services available to students in nonpublic schools,[20] and to “allocate a proportional share of federal IDEA funds to provide special education and related services to parentally-placed private school children” with disabilities.[21] These “more limited services provided to parentally-placed children in private schools is commonly known as equitable participation, and is distinct from the FAPE requirement.”[22] The IESP must be developed in the same manner and with the same contents as an IEP is developed. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document[23]:
“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student...”
Where it is determined that IESP services were not appropriately provided on an equitable basis, the New York State Education Law permits a hearing officer to redress the violation under the same broad authority available for violations of the IDEA.[24] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act”[25] and damage awards are not available under the IDEA.[26]
The hearing officer “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[27]
FINDINGS OF FACT AND DECISION
The DOE did not produce any exhibits, put on any witnesses or attempt to defend its provision of the equitable equivalent of a FAPE to Student for the 2021-2022 school year. The DOE has failed to meet its burden of showing that it provided Student with a FAPE for the 2021-22 school year. Based on the record and the concessions made by the DOE, I find that the DOE’s failure to implement the IESP was tantamount to the denial of a FAPE, and that the IESP services were not appropriately provided on an equitable basis.
Claim for Recovery at an “Enhanced Rate” and compensatory services:
Notwithstanding my finding that the Student was denied the equivalent of a FAPE, and that the IESP services were not appropriately provided on an equitable basis, during the 2021-2022 school year, that is not the end of the enquiry. The District challenged the rate being claimed by the Parent, namely the enhanced hourly rate in the sum of $185.00, speaking to the calculation and the credentials/certification of the SETSS providers, as well as the number of weeks which should be used in the calculation.
Rate Being Claimed:
It has been held that in approaching the dispute as to the recoverability of an enhanced rate, such disputes should as a practical matter be “effectively examined using a Burlington/Carter unilateral placement framework” and that “attempts that … do not use a Burlington/Carter analysis have tended to lead to chaos”[28].
Further that "parents who are dissatisfied with their child's education can 'unilaterally change their child's placement during the pendency of review proceedings' and can, for example, 'pay for private services, including private schooling.' They 'do so,' however, 'at their own financial risk.'
They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington-Carter test. A parent can obtain such reimbursement if: '(1) the school district's proposed placement violated the IDEA' by, for example, denying a FAPE to the student because the IEP was inadequate; (2) 'the parents' alternative private placement was appropriate'; and (3) 'equitable considerations favor reimbursement.'"[29].
Parent submitted into evidence an affidavit by the Parent (Exhibit P-D) and the Provider’s representative (Exhibit P-E), as well as a printout of “Certificate” (Exhibit P-F). District’s representative cross-examined both affiants.
A district is required by State law to locate and assign the student's publicly provided teachers for a dually enrolled student[30]. It has been found that the District's system for providing SETSS that requires the parent to seek out and arrange for a student's instruction by a special education teacher based on information the Parent acquired online is a violation of State law[31].
It has been held that "a board of education lacks authority to provide instructional services through an independent contractor"[32] and that the application of State law requiring that core instruction provided by a school district must be performed either by teachers who are employees of the district or pursuant to a contract for special education services that a district is specifically authorized by law to enter into[33].
It has also been held that “any notion of a public rate for independent SETSS instruction for this student that may be sanctioned in a policy of the district is flawed and cannot be reasonably relied upon by either party, because the district was not authorized to contract for the provision of an independent special education teacher” and that while “districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA"[34].
Parent’s Witness stated in her affidavit inter alia that: She is in charge of finances at the agency (“Agency” – defined on page 22); Service Provider 1 (also defined on page 22) “services” the Student 5 periods of SETSS a week; and that the Agency charges $185.00 per hour of SETSS.
Parent’s Witness was called to testify[35] and stated under oath that, inter alia: She has a master’s in education and has been working in education for twelve years; she is the director at the Agency; she is familiar with the Student and described some of his difficulties, namely how he gets distracted very easily; difficulties with math; how he cannot focus for long; he struggles socially; he has gone through a lot of providers who find him very difficult and challenging; the services that the Agency provides for the Student is 5 hours a week of SETSS and charges $185.00 per week; the provider gets paid $100.00, and the balance is for all the expenses, overheads, training, the app. and supervision, and “everything that goes along with that”.
In cross-examination Parent’s Witness testified that, inter alia:
The majority of services were provided at school; the Student was below grade level in reading; there were different providers for this Student, and the Student got a separate “psych-eval” to figure out the root of the issue and since February he has been with the same provider, with each provider going through different trainings, therefore it was difficult for her to answer how many trainings the providers took.
This child “is very difficult and came along with a lot”; the credentials of the current provider (“Service Provider 2” – defined on page 22) has a special education master’s; Service Provider 1 worked with the Student until February, and is no longer working with the Student as she found it too difficult; the SETTS providers followed the curriculum of the school; the Agency services around 80 students, or somewhere in that region.
Parent’s Witness stated in response to my clarification question regarding the number of hours provided that the Agency had provided for this Student that the Agency started in September 2021 and that services continued and that there was not really any breaks in between, if so, it would have been no more than a week.
Parent testified (Exhibit P-D) as to:
The Student’s struggles in many academic and social/emotional areas and that he required “a lot of extra assistance”; that she believed that without the extra assistance he would not be able to maintain his mainstream placement; the weekly services mandated pursuant to the Student’s IESP dated March 29, 2017; her inability, despite her best efforts, to locate a SETSS provider for the Student; the many phone calls made to independent SETSS providers on the list that is published on the DOE website, and how none of them were available to service her child at the standard DOE rate; and how the DOE did not make available any SETSS provider.
How she contacted the Agency, which agency facilitated SETSS for the Student, providing 5 hours of SETSS per week for the duration of the 2021-2022 school year; the contract that she signed which obligated her to pay for these services in the event that the DOE did not pay the Agency for services provided; how paying for these services up front would pose extreme financial hardship for her; and that she would not be able to pay for these services without outside financial support from friends and family.
Her request that the Student’s SETSS periods be reimbursed at a reasonable market rate, again confirming that she was unable to locate providers for the related services which the Student was recommended to receive as part of the most recent IESP and that the DOE did not make available any providers for the related services.
The relief sought was also specified in her affidavit, namely an order that the related services be funded as a bank of hours to be utilized over the next two school years, including a bank of 40 hours of S/L and 40 hours of PT.
In cross-examination Parent testified that, inter alia: The Student received OT, but not S/L or PT; that she received a copy of the contract she signed with the Agency, as far as she can remember; she does not recall calling the CSE prior to sending the 10-day notice to inform that she had no provider for her child; and that she was not sure if she had received a SETSS authorization form from the DOE.
Since the Parent has not actually paid any money for which she must be reimbursed, this matter is “in a subset of more complicated cases in which the financial injury to the Parent and the appropriate remedy are less clear”. “The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework"[36].
I have no reason to doubt, based on the record, that the Parent in fact made the attempts she testified about to find a provider and was unsuccessful in finding one willing to provide the mandated services at the District’s standard rate. Parent also testified as to an obligation to pay for the SETSS provided by the Agency to the Student. Even though the contract was not disclosed, this testimony is proof of an agreement between the Parent and the Agency that delivered SETSS providing that the Parent would ultimately be responsible for the costs of the SETSS. No cross-examination by the District’s representative revealed another possibility.
District’s representative’s challenge to the rate being claimed as being “excessive”, has some merit, which I address as part of the equitable considerations applicable to this case, some which favor the Parent and some the DOE.
In the present case, I find that the District has established on a balance of probabilities that the Service Provider 1, who provided SETSS services to the Student from sometime in September 2021 until February 2022, only held certification for “Early Childhood Education (Birth-Grade 2) Professional Certificate” and “Student with Disabilities (Birth-Grade 2) Professional Certificate” (Exhibit P-F). No evidence was provided regarding the certifications, if any, of Service Provider 2, who provided SETSS services to the Student from sometime in February 2022 for the remainder of the 2021-2022 school year.
I find that the evidence establishes that Service Provider 1 (and possibly Service Provider 2) was not certified for a child in fourth grade, being the Student’s grade at the time according to Parent’s Witness’s testimony. New York State Education Law section 3001 (2016) states that a provider should be licensed in the area of the grade of the child, however, this applies to teachers being employed in public schools. The certification, or lack thereof, is however relevant when it comes to determining a reasonable rate for the services provided.
This is not the first time that such an issue has been before a hearing officer. Generally, teachers at a unilateral placement need not be State-certified[37], there must however be objective evidence of special education instruction or supports that are specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits[38].
Parent’s Witness provided evidence of a general nature as to how the Agency assigned SETSS providers to the Student, having to find Service Provider 2 after Service Provider 1 found it too difficult to work with the Student, but there was no “objective evidence of special education instruction or supports specially designed by the student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits” provided on record (my emphasis).
The SETSS providers were not called as witnesses and there is no evidence on record to make a finding that the SETSS providers, one of which based on the evidence is not correctly certified for the Student’s grade, were reasonably qualified and provided such specially designed supports.
It was the DOE’s obligations to provide the Services mandated on the Student’s IESP for the 2021-2022 school year. Had the Parent done nothing, the Student would likely not have received any services. Parent sent the DOE the mandatory 10-day notice, although as pointed out by District’s representative, this was sent almost two months into the school year (Exhibit P-C).
Based on the above factors, I find that a reasonable rate in the circumstances of this case for the SETSS to be funded to be an amount of $165.00.
As to the compensatory services claimed, given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the quantitative approach.
Since providing the Student with mandated Services on an "equitable basis" means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district”, and since no school calendar was provided for the Attending School evidencing the number of school weeks applicable to that school, the DOE’s 36-week calculation has been used in calculating the award.
Neither the DOE nor the Parent provided any evidence of a reasonable rate for S/L and/or PT.
In the circumstances, the Parent is entitled to an Order for payment of the SETSS provided during the 2021-2022 school year at an enhanced rate, but adjusted due to the above equitable considerations, as well as an order for the missed related services, it being common cause that these had not been provided, for 36-weeks. District’s representative did not object to Parent’s representative’s request to include, as part of the order, that the CSE be ordered to reconvene.
Costs:
If the proposed relief is seeking an award for costs and fees as part of this decision (Exhibit P-A-3), only a court can determine who is entitled to attorney’s costs, fees, and expenses, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled thereto.
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 is directed (subject to #3 of this Order) to fund the Student’s SETSS for the 2021-2022 school year commencing on 01/09/2021 through to 06/30/2021 at:
- • The DOE’ standard rate up to November 07, 2021[39]; and
- • The enhanced rate of $165.00 from November 08, 2021, by issuing payment directly to the Agency, upon the submission of invoices for the SETSS rendered to the Student during the 2021-2022 school year, together with an affidavit referencing the Agency’s invoices and attesting to the provision of the SETSS provided to the Student for the period covered by each invoice, up to a maximum of 180 (5 x 36-weeks) hours in total for the 2021-2022 school year.
- • FURTHER ORDERED that, the DOE shall fund (subject to #3 and #4 of this Order) the following compensatory services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parent’s own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #4 of this Order for each of the services:
- • 36[40] compensatory hours of S/L (individual service; English) by a New York State licensed speech pathologist; and
- • 36[41] compensatory hours of P/T (individual service; English) by a New York State licensed physical therapist, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
- • FURTHER ORDERED that, the DOE’s obligation to fund the Student’s SETSS and the compensatory services as set out in #1 and #2 of this Order, respectively, shall be reduced by any payments and/or hours of services provided for SETSS, S/L and/or P/T already made and/or provided by the DOE to, or for and/or on behalf of, the Student during for the 2021-2022 school year under or in terms of the Order on Pendency issued on April 13, 2022 (Exhibit IHO-I).
- • FURTHER ORDERED that, the bank of compensatory services set out in #2 of this Order shall not expire until the expiration of 18 (eighteen) months from the date of this Order and that the amount payable by the DOE for each of the services to the provider(s) of the Parent’s own choosing shall be limited as follows:
- • Compensatory S/L at a rate not to exceed $150 per hour.
- • Compensatory P/T at a rate not to exceed $150 per hour.
- • FURTHER ORDERED that, the DOE shall fund the necessary transportation costs to and from the service provider(s) providing the awarded compensatory services by issuing the Student and the Parent a Metro card each.
- • FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
- • FURTHER ORDERED that, if the CSE has not reconvened since the hearing on June 09, 2022, it shall do so within 21 (twenty one) days of the date of this Order in order to comply with its obligation under the IDEA to review the Student’s educational program and revise his IESP, as appropriate[42].
SO ORDERED.
DATED: June 20, 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’S EVIDENCE
Exhibit
Title
Date
Pages
1.
None
-
-
PARENT’S EVIDENCE
Exhibit
Title
Date
Pages
A.
DPC
10/28/2021
6
B.
IESP
03/29/2017
8
C.
TDN
10/28/2021
2
D.
Affidavit of Parent
06/09/2022
3
E.
Affidavit of Provider
04/11/2022
1
F.
Provider Credentials
05/01/2022
1
IHO’S EVIDENCE
Exhibit
Title
Date
Pages
I
Order on Pendency
04/13/2022
9
APPENDIX
REDACTED
Footnotes
[1] The DPC erroneously refers to “IEP” in the DPC, instead of “IESP”.
[2] U.S.C. § 1400 et seq.
[3] C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[8] U.S.C. § 1415[f][3][E][i].
[9] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[10] Rowley, 458 U.S. at 203.
[11] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[12] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[13] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[14] NYS Educ. Law § 4404(1)(c).
[15] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[16] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[17] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[18] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[19] See 34 C.F.R. § 300.137(a).
[20] See 34 C.F.R. § 300.134.
[21] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a)(10)(A)(i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[22] E.T. and D.T. ex rel. E.T., supra., at 11 (internal quotations and citations omitted); c.f. Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020) at pg. 4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated... as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” (internal citations omitted)).
[23] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.
[24] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[27] See Doe v. East Lyme, 790 F.3d at 454.
[28] Application of a Student with a Disability, Appeal No. 20-140.
[29] Ventura de Paulino v New York City Dept. of Educ., 959 F3d 519, 526-27 [2d Cir 2020] [citations omitted].
[30] Educ Law § 3602-c[2][a].
[31] See Application of a Student with a Disability, Appeal No. 20-115; Application of a Student with a Disability, Appeal No. 20-087; Application of a Student with a Disability, Appeal No. 20-140.
[32] Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeal of Woodarek, 46 Ed Dept Rep 1, Decision No. 15,422).
[33] See Bd. of Co-op. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 [3d Dep't 2007].
[34] Application of a Student with a Disability, Appeal No. 20-140.
[35] At the time of writing this decision the transcript of the hearing was not available.
[36] See Application of a Student with a Disability, Appeal No. 20-140 citing E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] this latter case finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, had not done so due to a lack of financial resources. See also Application of a Student with a Disability, Appeal No. 20-087.
[37] See Carter, 510 U.S. 7, 14, noting that unilateral placements need not meet state standards such as state certification for teachers. See also Application of a Student with a Disability, Appeal No. 12-125.
[38] Application of a Student with a Disability, Appeal No. 20-140.
[39] Expiry of the period specified in the Parent’s 10-day notice (Exhibit P-C).
[40] x 30 minutes as per the Student’s mandate (Exhibit P-B-6), multiplied by 36-weeks.
[41] x 30 minutes as per the Student’s mandate (Exhibit P-B-6), multiplied by 36-weeks.
[42] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].