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CASE NUMBER: 571216 - NYC: 225326
FINDINGS OF FACT AND DECISION
Case Number: 225326
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 03/21/2022
Hearing Requested by: [REDACTED]
Date of Hearing: 06/16/2022
Record Close Date: 06/16/2022
Date of Decision: 06/25/2022
Names and Titles of Persons Who Appeared June 16, 2022
For the Student
[REDACTED], Parents’ Attorney
For the New York City Department of Education
No appearance
BACKGROUND
On January 8, 2022, the Parents, by and through the Parents’ Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 225326, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1).
The DPC asserts that the Student was denied a free and appropriate public education (FAPE) after the Committee on Special Education (CSE) developed an individualized education program (IEP) on August 9, 2021, recommending an Integrated Co-Teaching (ICT) class with four periods per week of special education teacher support services (SETSS), notwithstanding that the Parents’ neuropsychological evaluation recommended “instruction at a special education school that provides a small classroom with instructors who have extensive experience in teaching children with language-based difficulties and ADHD.”[1] The Parents assert that the subject IEP is “substantially inappropriate for” the Student and “not based upon [his] unique and special education needs, but instead based upon the limited program options that are available within the Department of Education.”[2] In addition, the DPC alleges procedural flaws in the development of the IEP.[3] The Parents therefore unilaterally placed the Student in a private school program, and they now seek reimbursement of the tuition they paid for the 2021-2022 school year, as well transportation.[4]
PROCEDURAL HISTORY
On March 28, 2022, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On April 22, 2022, I conducted a pre-hearing conference with the Parents’ attorney[5]; the Department did not appear. I issued an Order of Extension on May 18, 2022,[6] and the Due Process Merits Hearing was held on June 16, 2022. The Department did not appear. At the hearing, the Parents’ Attorney relied upon eleven exhibits that were admitted without objection, as well as the Parents’ arguments offered in support of the claims in the DPC. A list of the documentary evidence in this proceeding is appended to this decision.
FINDINGS OF FACT
None of the following was disputed, as the Department did not appear or otherwise present a case at the hearing. The Student is an [REDACTED] year-old child with a history and diagnoses of Attention-Deficit/Hyperactivity Disorder (ADHD) (Combined Inattentive and Hyperactive), a specific learning disorder with impairments in reading (i.e., Dyslexia), and a specific learning disorder with impairments in writing.[7] He attended public school classes for pre-kindergarten through the second grade and began to exhibit a lack of progress in reading, even after extra support.[8] In July of 2020, before the beginning of the Student’s second grade, his Parents had a neuropsychological evaluation performed, which resulted in the aforementioned diagnoses.[9] The report specifically recommended “special education services and accommodations” that could “be developed for him at his current elementary school[.]”[10] The neuropsychological report was shared with the CSE that developed an IEP for the Student’s second grade. [11] The Student thereafter continued to struggle, despite being placed in an ICT class pursuant to that IEP.[12]
Concerned with the Student’s continuing difficulties, the Parents had a second evaluation by the same doctor who, on April 24, 2021,[13] issued an addendum to the neuropsychological report that included the following observations and recommendations. As compared to the scores achieved by the Student at the July 2020 evaluation, the Student’s “reading skills are much lower than one would expect given his age and are, roughly speaking, lower than that of a child who hasn’t yet started 1st grade. His word reading, reading comprehension, and reading speed are weak. His word reading skills have even declined.”[14] The Student’s “struggles with reading and writing will be best treated with direct academic interventions,”[15] and he therefore “requires dedicated, intensive special education instruction” from “a special education that provides a small classroom with instructors who have extensive experience in teaching children with language-based difficulties and ADHD.”[16]
The Student’s Parents shared the addendum report with the Department,[17] and they attended the August 9, 2021 IEP meeting.[18] The CSE recommended continuing ICT, but now with the addition of SETSS four periods per week.[19] The Parents felt “this was not sufficient, given [the Student’s] struggles in the ICT class already as well as the findings of the two evaluations [they] had conducted.”[20] The neuropsychologist had, in fact, suggested the Private School to the Parents, and they informed the IEP team at the meeting that they intended to provide that school’s program for the Student, and that they had already reserved a seat for the Student at the Private School for the 2021-2022 school year.[21] The Student has attended the Private School since the beginning of the 2021-2022 school year.[22]
The Private School is a not-for-profit institution that specializes in educating children with learning disabilities.[23] Students are grouped into “homeroom” classes based on, inter alia, learning styles, with a student/teacher ratio of anywhere between 12:2 to 9:2,[24] that are then broken down further into smaller groups of 5:1 to 2:1 for reading and math,[25] with additional “modifications and accommodations in all classes based on their additional needs.”[26] Each student’s progress is evaluated “using curriculum-based assessment tools” that check “the effectiveness of our interventions for the student, which enables us to continually modify a program or method for a particular student as well as circle back to review and reteach when necessary.”[27] A student’s progress is memorialized twice per year, first in a “Mid-Year Report” and then in an “End of Year Report.”[28]
The Private School’s School Psychologist, who testified via affidavit, knows the Student through having held student group meetings with the Student, as well as having observed the Student in the program, having consulted with the Student’s teachers, and having reviewed the Neuropsychologist’s report and addendum and the Student’s Mid-Year Report.[29] The Mid-Year Report describes the progress the Student has been able to achieve in core subjects, including reading,[30] writing,[31] and math.[32] He has also improved in other areas, such as geography.[33] The report notes that the Student specifically “benefits from the structured multisensory review focused for a small group of students” within the Private School’s program.[34] Having observed the Student and assessed the reports, the School Psychologist agrees with the Mid-Year Report’s findings, testifying in her affidavit that the Student “has made progress in learning and remembering new blends and suffixes when encoding and decoding” and that while in “the Fall of 2021 [the Student] scored an independent level ‘H’ and an instructional level ‘I’ (1st grade level)” in oral reading, decoding, fluency and comprehension, by “the Spring of 2022” his “independent reading level is ‘I’ and his instructional level is ‘J,’ which is considered the end of 1st grade/beginning of 2nd gr[ade] level.”[35] It is her professional opinion that the Private School is an appropriate placement for the Student for the 2021-2022 school year.[36]
The Parents also placed into evidence a copy of the March 1, 2021 Enrollment Contract with the Private School for the 2021-2022 tuition, in the amount of $73,174.00,[37] and an invoice showing that the Parent’s paid the tuition amount in full as of January 6, 2022.[38]
Upon my review of the evidence, I find that the affidavits offered by the Parents are credible, in that they are sufficiently detailed and consistent, both with the other exhibits and with each other. I note also that the Department was not present and therefore offered nothing to challenge the veracity of the witnesses. Finally, I credit the remaining exhibits as well, as they are likewise relevant, reliable, consistent, detailed, and undisputed.
LEGAL FRAMEWORK
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[39] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[40] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[41]
The U.S. Supreme Court has determined that a board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) there is no FAPE, in that the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[42] These three prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.[43] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.[44] The standard required is a preponderance of the evidence.[45]
As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.[46] Still, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[47] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[48] and then provides for the utilization of sufficient special education services,[49] and then is properly implemented.[50] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[51] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[52]
If the Department proves that the recommended program in the IEP offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.[53] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”[54] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.”[55] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.[56] In fact, 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.”[57]
With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable,[58] whether the parents failed to make their child available for evaluation by the district,[59] or whether actions taken by the parents were unreasonable.[60] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needs-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent of the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.[61] “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”[62] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement.[63]
Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.[64] It is an important step, because the notice “gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections – all before the parents enroll their child in a private school and file a due process complaint.”[65] In a case where "parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement,"[66] as the parents of students enrolled in private school are not exempted from ten-day notice requirements.[67]
It is against this backdrop that I analyze the admitted evidence, including the Parent’s unilateral placement and equitable factors. If the factors weigh in favor of the Parents, an award is warranted, including any related services requested. In considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[68] with the only limitations being that the remedy “be appropriate in light of the purpose of the Act,”[69] and that damage awards are not available under the IDEA.[70]
ANALYSIS
Prong 1 – FAPE
In this case, the Department did not appear; nor did it present any witnesses or documentary evidence, including the IEP. The Department therefore failed in its burden to prove, by a preponderance of the evidence, that the program recommended by the District was “reasonably calculated to provide some ‘meaningful’ benefit.”[71]
In addition, “the parent is entitled to a presumption as to the truth of the asserted facts underlying” the IDEA claims, although they are “not necessarily entitled to ‘default’ relief,” as issuing an award on a DPC “without further inquiry . . . is a disfavored outcome, even in cases where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[72] Thus, while I will avoid rendering a decision on the DPC alone, I note that in failing to appear, the Department offered nothing to dispute the Parent’s assertions that (1) the Department’s recommendation for the 2021-2022 school year of ICT with SETSS at a community school was inadequate,[73] and (2) that the Student instead “requires placement in a small, supportive and highly structured, full-time special education program within a small school setting, with students of similar cognitive strengths as well as needs.” For the above reasons, I find that the Department did not demonstrate it provided the Student with a FAPE for the 2021-2022 school year, and I turn to the Parent’s evidence offered in support of Prong 2.
Prong 2 – Appropriateness of Unilateral Placement
Having determined that the Department did not offer the Student a free and appropriate education, I must next turn to the Parents, who “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[74] A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a [disabled] child.’”[75]
The Parents rejected the recommendation of the CSE and instead enrolled the Student in the Private School. In support, the Parents offered into evidence the Private School’s program description, the 2021-2022 class schedule, the Student’s Mid-Year Report, the contract and proof of payment, and the testimony of the Private School’s School Psychologist. Consistent with the Neuropsychologist’s recommendation that the Student be placed in “a special education school that provides a small classroom with instructors who have extensive experience in teaching children with language-based difficulties and ADHD,”[76] the Private School “is a K-12 college preparatory program dedicated to the success of students with learning disabilities” that “us[es] a multi-sensory approach to learning.”[77] It also provides a small-class approach to teaching, with a student/teacher ratio of no more than 12 students per two teachers, and as low as two students per teacher in core subjects.[78]
The School Psychologist’s affidavit and the Mid-Year Report document how the Student has benefitted from the Private School’s program since the beginning of the school year. When the Student was first assessed, he had difficulty with reading word groups, writing within designated spaces, estimating amounts, and regrouping numbers for addition and subtraction.[79] With the assistance of the teachers utilizing the Private School’s program, the Student has now increased the amount of text he can read aloud, and is writing smaller and clearer letters, has increased his number sense with more accurate estimations, and can complete three-digit addition problems with regrouping, as well as subtraction with regrouping.[80] Moreover, his oral reading, decoding, fluency and comprehension have increased from a first grade level to a beginning-of-second grade level this year.[81] The report also includes that the Student has more than doubled the number of geography questions he answers correctly.[82]
It has been held that while “evidence of academic progress . . . does not itself establish that the private placement offers adequate and appropriate education,”[83] a record of progress is relevant to the inquiries into whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child” and whether “the child . . . benefit[s] from instruction,”[84] which are both indicators of appropriateness. Given the degree to which the Private School’s program is designed to address the learning needs of students such as the Student, and the resulting academic progress shown by the Student this school year, all of which was undisputed by the Department, the Parents’ evidence proves that the Student has benefitted from the Private School’s program, and that it was specially designed to address the Student’s unique needs. On this record, therefore, I conclude that the placement chosen by the Parents is appropriate to meet their child’s needs,[85] and that Prong 2 of the Burlington/Carter analysis is satisfied.
Prong 3 – Equitable Considerations
Finally, I must weigh pertinent equitable factors. The Parents introduced evidence that they attended the August 9, 2021 IEP meeting, that they informed the CSE at that meeting of their disagreement with ICT and SETSS, and that they were holding a seat at the Private School for the Student.[86] They also properly served the Department with a ten-day notice, complete with their rejection of the CSE’s proposed placement and their intent to enroll the Student in the Private School.[87] They also assisted the CSE in July of 2020 by providing it a copy of the first neuropsychological evaluation for its consideration,[88] and they shared the April 2021 addendum to the neuropsychological report with the CSE before the subject IEP was developed in August of 2021.[89] Nothing in the record indicates that “the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”[90] In fact, the evidence reflects that the Parents were cooperative with the Department throughout the process, which is “[i]mportant to the equitable consideration[s]” analysis,[91] and works to balance the equities in their favor.[92] There is also no evidence of fraud or collusion,[93] and no allegations or evidence that the tuition amount was unreasonable.[94] Finally, one of the Parents testified that despite signing the enrollment contract with the Private School in March of 2021, they “remained open to considering DOE options . . . if something appropriate had been offered within the public system.”[95] On this record, and taken in their totality, the equitable considerations favor the Parent and do not favor the Department. I therefore find that the third prong of the Burlington/Carter standard has been established for the Parent, and that remedies are therefore warranted in this case.
Remedies
Tuition
The Parent offered into evidence proof that the cost of tuition for the 2021-2022 school year is $73,174.00.[96] The Parent also demonstrated that they paid the entirety of that amount themselves.[97] Given that the Parents have satisfied the Burlington/Carter test, which allows for the reimbursement of tuition paid, I therefore find that the Parent shall be reimbursed for the entirety of the tuition, in the sum of $73,174.00.
Transportation
The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[98] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’”[99] In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”[100]
Here, the Parent is not seeking the cost of transportation, only that the Student was entitled to it. While there was no evidence of the distance the child travelled to and from school, I note, consistent with the law as stated above, that special education includes transportation “at no cost to the parents,”[101] and I therefore conclude that the Student was entitled to transportation for the 2021-2022 school year.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall directly reimburse the Parents for the entirety of the tuition that the Parents paid for the cost of the 2021-2022 school year at the Private School, in the amount of $73,174.00; and it is further,
Ordered and declared, that the Student was entitled to round-trip, door-to-door special education transportation services to enable the Student’s attendance at the Private School for the 2021-2022 school year.
So Ordered.
Dated: June 24, 2022
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Officer
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.
PARENT EXHIBITS
Exhibit | Title | Date | Pages |
A | Ten Day Notice | 08/24/ 2021 | 2 |
B | Impartial Hearing Request (DPC) | 01/08/2022 | 4 |
C | Confidential Neuropsychological Assessment Report | 08/09/2020 | 21 |
D | Confidential Neuropsychological Assessment Report Addendum | 04/30/2021 | 6 |
E | Private School Program Description | Undated | 2 |
F | 2021-2022 Enrollment Contract | 03/01/2022 | 5 |
G | [REDACTED] 2021-2022 Schedule | Undated | 1 |
H | Mid-Year Report | 01/31/2022 | 17 |
I | Affidavit of [REDACTED] School Psychologist | 06/06/2022 | 9 |
J | Affidavit of Parent | 06/07/2022 | 3 |
K | Tuition Statement | 06/07/2022 | 1 |
IHO EXHIBITS
Exhibit | Title | Date | Pages |
I | Pre-Hearing Conference Summary and Order | 04/28/ 2022 | 2 |
II | Order of Extension | 05/18/2022 | 1 |
Footnotes
[1] See Ex. B-2.
[2] Id.
[3] See id.
[4] See id. at B-3. While the DPC includes the proposed resolution “that transportation be provided,” the Parents’ Attorney clarified at the hearing that the Parents now seek only a declaration that the Student was “entitled” to transportation for the 2021-2022 school year.
[5] See Ex. I.
[6] See Ex. II.
[7] See Exs. C-11, C-12, and D-1 through D-3.
[8] See Ex. J ¶¶ 6-7.
[9] See Ex. C; see also Ex. J ¶¶ 7-8.
[10] Ex. C-13.
[11] See Ex. J ¶¶ 9.
[12] See Ex. J ¶¶ 9-10; see also Ex. D-1.
[13] See Ex. J ¶ 10; see also Ex. D-1.
[14] Id. at D-2. The only exceptions were that “his math and listening comprehension skills remain in the expected range for his age,” that “his writing abilities have improved but remain poor,” and that “his spelling skills have improved, but his ability to write sentences and use correct capitalization and punctuation remain weak when compared to his peers.” Id.
[15] Id. at D-3.
[16] Id.
[17] See Ex. J ¶ 13.
[18] See Ex. J ¶ 14.
[19] See id. ¶ 14.
[20] Id.
[21] See id. ¶¶ 14-15.
[22] See Exs F and I ¶ 2.
[23] Seeid. ¶¶ 8 and 10.
[24] See id. ¶ 17.
[25] See id. ¶ 18.
[26] Id. ¶ 19.
[27] Id. ¶ 21.
[28] See id. ¶¶ 22-23.
[29] Seeid. at ¶¶ 2 and 24; see also Ex. H.
[30] One of the Student’s struggles has been “reading groups of words with meaningful pauses,” where the Student would read “every two or three words and occasionally word by word.” Utilizing the “Orton-Gillingham Preventing Academic Failure (PAF) program,” the Private School has helped the Student “develop his fluency skills” through “supports such as practicing different types of reading... repeated readings, scooping, explicitly teaching how to annotate a text, reading aloud for homework, and slowly increasing the amount of text read aloud in class.” Ex. H-4 through H-5.
[31] “Earlier in the semester, most of [the Student’s] letters were outside or larger than the designated space on primary lined paper. More recently, his letters are smaller and clearer[,]” although he still struggles with writing letters that “are close together and too small, with unclear differentiation between upper and lower case letters.” Ex. H-5. The program will address this with “immediate feedback on handwriting, visual supports... worksheets that include the primary lined format and assigning specific handwriting homework.” Id.
[32] The Student “works hard in math group and is acquiring the skills and understanding to complete math problems that he was previously unable to solve independently.” Ex. H-6. “In the beginning of the year it was hard for [the Student] to make an estimation” and as the year went on, he “has become much more accurate in his estimations and he makes his estimations more quickly,” which “demonstrates that he has a stronger grasp of number sense than he had at the start of the year.” Ex. H-6. Also, on his “pre-assessment on addition he was unable to complete problems that required regrouping” but on “post-assessment on addition he accurately completed three-digit addition problems with regrouping.” Id. He achieved similar results with subtraction. See id.
[33] The Mid-Year Report states that, with respect to his geography pre-assessment, the Student was able to answer only 15 out of 39 question correctly, “and after direct, multi-sensory instruction on various aspects of geography, he answered 35 of 39 questions on the post-assessment.” Ex. H-2.
[34] Ex. H-5.
[35] Ex. I ¶¶ 28-29.
[36] Ex. I ¶ 35.
[37] see Ex. F-1.
[38] See Ex. K-1.
[39] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[40] See 34 C.F.R. § 300.13.
[41] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[42] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[43] See id.
[44] See NYS Educ. Law § 4404(1)(c).
[45] See 20 U.S.C. §1415(i)(2)(C)(iii); seealsoWalczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[46] 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 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[47] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[48] See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii].
[49] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[50] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[51] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[52] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[53] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G.,459 F.3d 356 at 364).
[54] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007).
[55] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[56] See id. at 364 (citing Carter, 510 U.S. 7 at 14).
[57] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[58] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[59] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[60] Seeid.
[61] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[62] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[63] SeeMr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[64] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
[65] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[66] Id.
[67] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[68] See Doe v. East Lyme, 790 F.3d at 454.
[69] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[70] SeePolera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[71] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[72] Application of a Student with a Disability, Appeal No. 19-061, pp. 18-19 (Sept. 6, 2019) (citing Branham v. Gov’t of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[73] See Ex. B-2.
[74] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).
[75] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[76] Ex. D-3.
[77] Ex. E-1.
[78] See Ex. I ¶¶ 17-18.
[79] See Ex. H-5 through H-6.
[80] Seeid. at H-5 through H-6.
[81] See Ex. I ¶¶ 28-29.
[82] See Ex. H-2.
[83] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[84] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[85] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G.,459 F.3d 356 at 364).
[86] See Ex. J ¶ 14.
[87] See Ex. A.
[88] See Ex. J ¶¶ 7-9.
[89] See id. ¶¶ 10-13.
[90] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[91] See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[92] SeeMr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[93] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[94] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[95] Ex. J ¶ 20.
[96] See Ex. F.
[97] See Ex. K.
[98] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).
[99] Id. at 1375 (internal citations omitted).
[100] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww).
[101] See id.