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NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
RESPONDENT
Dr. Oren Varnai, Esq., Impartial Hearing Officer
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 7/6/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year(s).
During the school year in which Parent filed the DPC, Student was classified with Traumatic Brain Injury.
A Pendency Hearing took place on 7/29/2022, and an IEE limited Hearing took place on 8/16/2022. Despite the ordering of an IEE, the Neuropsychological report was unavailable at the DPH, and no evidence was presented therefrom.
The Due Process Hearing (“DPH”) 1 took place on 3/9/2023 wherein the DOE presented documentary evidence but did not present the testimony of any witnesses. 2 Parent presented documentary evidence and the affidavit testimony of Parent 3 and Private School’s Director of Special Education.
1 A transcript of the proceeding was unavailable at the time of the drafting of the FOFD but will be included in the official record upon receipt. 2 DOE had several subpoena requests prior to the hearing but did not respond to IHO’s questions related to the subpoenas in email exchanges. DOE subsequently withdrew all subpoena requests on the record at hearing. 3 Parent’s English language affidavit was not officially translated from Parent’s native language. DOE did not object to the introduction of the document, which was construed as a waiver for the need to have an official translation on the record. IHO accepts Parent’s Attorney’s representation that the English language affidavit is a faithful and accurate translation of Parent’s affidavit from her native language.
III. Findings of Fact and Decision
A. The DOE Deprived Student of a FAPE for the 2022-2023, 12-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) that students with disabilities have available to them a 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) that the rights of students with disabilities and parents of such students are protected.[4] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. [5]
A free and appropriate public education can be said to be 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.[6] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[7] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[8]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[9] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[10] Under the IDEA, if procedural violations are alleged, an IHO 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. [11]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[12] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[13] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[14] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[15] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[16] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[17] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[18]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[19] and designed to be provided in the least restrictive environment (“LRE”).[20] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[21] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[22] through the use of appropriate special education services.[23] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[24]
As an initial matter, on the one hand, Parent’s Attorney in his closing brief argued that the DOE’s failure to introduce any witness amounts to a concession that it had denied Student with a FAPE.[25] DOE’s failure to call witnesses does not necessarily mean that it could not meet its burden as the SROs have determined that they “…cannot generally endorse the [] findings on the issue of the district's obligation to produce a witness…and the [IEP] document speaks for itself.”[26] This general view does not hold in every situation, but an IEP’s introduction into evidence has weight and is evidence of DOE’s actions or lack thereof. The IEP’s weight, persuasiveness, completeness, deficiencies, appropriateness, etc., are other issues that need to be reviewed holistically, and the DOE’s failure to produce a witness, in and of itself, cannot amount to a concession of FAPE in every instance. On the other hand, DOE’s assertions in its closing brief[27] makes conclusory assertions about the appropriateness of the IEP, the level of support it had recommended to Student, and a bevy of other recommendations, without providing details as to how the CSE arrived at its recommendations. This is an important part of a school district’s ability to defend the provision of FAPE, which should have been articulated in the IEP itself, or provided in the form of testimony. This is not a case of the IEP being able to “speak for itself” as the SROs noted, but rather a case where the IEP is mute on these issues, and therefore incomplete for DOE to show that it had provided Student with a FAPE.
A review of the IEP, however, offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” [28]
As to Prong I of the Burlington/Carter standard, although the DOE did not concede that it had denied the Student with a FAPE for the 2022-2023, 12-month, school year, DOE presented no witnesses and failed to meet its burden at hearing. In addition, none of Parent’s claims in the DPC alleging multiple violations that DOE engaged in were rebutted at any point and will therefore be presumed to be factually true.
Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 12-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE.
B. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[29] This means that the private school must offer an educational program which met the student's special education needs.[30] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[31] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" [32]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and when determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[33] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [34]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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. [35]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate. Private School Director of Special Education testified via affidavit that she is familiar with Student[36] and Student’s needs, placed Student in a classroom that would address those needs, and described the services Student was receiving at the Private School. Parent submitted Private School’s IEP, 37 Private School enrollment contract, 38 Private School transportation agreement,[39] and Parent’s affidavit.[40] I find the testimony credible, and that the Private School provided Student with instruction specially designed to meet Student’s unique needs.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [41]
1. Transportation
DOE objected to the funding of specialized transportation, which was provided under a separate contract for services.[42] Under the IDEA, transportation and any modifications or accommodations necessary to assist a student to benefit from his or her special education
37 Ex. P-G.
38 Ex. P-K.
are included in the statute’s definition of related services. 43 New York State Education Law44 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." 45 Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. 46 If the provision of FAPE is dependent on the transportation as a related service, then the CSE must ensure that the student receives the necessary transportation at public expense. 47 An IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate." 48 “Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” [49]
The DOE argues that since Student’s Private School’s own IEP requires limited transportation of 60 minutes,[50] the unilaterally obtained transportation services would not be appropriate if the transportation contract allows for up to 90-minutes of travel. [51] Nevertheless, the DOE acknowledged that the DOE IEP which Parent challenges, has no limited transportation time provision.[52] This is a case of the DOE arguing two opposite
43 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]. 44 Educ. Law §§ 4401[1]; 4402[4][a]. 45 State Appeal No. 21-057; Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]. 46 State Appeal No. 03-053. 47 Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]. 48 ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
positions. If Student requires limited transportation time, then that service should have been indicated on the DOE IEP; it was not. Therefore, the DOE’s position is that limited transportation time is not what Student requires. If it is DOE’s position that because Private School believes that Student requires limited transportation time, then that belief should form the basis of inappropriateness of the unilaterally obtained service. This question, however, seems to relate to equity under Prong III of Burlington-Carter and not Prong II as the purported disagreement about what Student needs is a substantive one.
In addition, DOE’s Attorney could not affirmatively state on the record whether DOE was able to implement Student’s transportation, so Parent’s unilateral contract with a transportation company was not based on speculation that the DOE could not implement that provision of the DOE’s IEP even if the transportation did not require a 60-minute time limit. Irrespectively, there was no evidence that the transportation contract’s allowance of limited transportation time of ‘up to 90’ minutes factually resulted in that upper limit being reached and inappropriate, or whether there was a subsequent agreement between Parent and Private School that raising the transportation time to 90 minute was inappropriate. To summarize, a Private School IEP does not need to conform to the same stringent procedural requirements that DOE needs to follow under the IDEA and New York law. Therefore, I find that the transportation Student received as a related service was appropriate.
C. The Equities Favor the Parent (Burlington/Carter Prong III)
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[53] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [54]
Here, Parent provided the necessary Ten-Days’ Notice[55] of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns, whereby Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter other than a determination letter that Parent must file a DPC. [56]
DOE’s contention in its closing brief that Parent had no intent to enroll Student at a Public School[57] is without merit even if supported by the record, which it is not. "[T]he issue of parental intent vis-à-vis the child's enrollment is not dispositive of whether a school district has a FAPE obligation to a disabled child,"[58] and the Second Circuit has indicated that parents' pursuit of a private placement would not be a basis for denying tuition reimbursement, even assuming they never intended to place the student in a public school. [59] In addition I find that DOE’s assertion[60] that Parent was not obligated to pay the tuition costs because the Private School contract does not contain the signature of a Private School representative unpersuasive; if Parent’s signature were not affixed to the document there could have been an argument to support that contention, but this is not the scenario presented at hearing. DOE had the opportunity to cross-examine any of the witnesses presented at hearing and could have subpoenaed other witnesses if there were concerns with respect to Parent’s obligation to pay. Although DOE initially requested the subpoenaing of several witnesses prior to the hearing, that request was summarily withdrawn at hearing.[61] The equity considerations are ones that IHO must evaluate when deciding whether to grant tuition to a unilateral placement. Nevertheless, DOE has an obligation to develop the record and assert challenges to potential equitable considerations that would warrant an IHO to deny such tuition award.
Finally, although I agree with DOE in its closing brief[62] that a delay in the hearing did occur because of a lengthy neuropsychological evaluation period that should have been completed earlier, there is no evidence in the record that the delay was intentional or otherwise due to Parent’s obstruction. DOE’s contention appears to revolve around Student’s pendency rights that were being enforced during the lengthy delays, thereby necessitating DOE’s payment for Student’s Private School throughout the pendency of the proceedings. It should be noted, however, that even if I were to agree with DOE’s contention, DOE itself failed to implement the Pendency Order the undersigned IHO issued on 7/29/2022 for more than 2 months. This lack of implementation of IHO’s order resulted in patent unnecessary delays that DOE alleges Parent engaged in, but without support for that allegation in the record.
By way of relief, Parent seeks direct funding of Private School tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so;” Parent testified that she does not have the ability to pay.[63] The tuition at the Private School is $175,000, 64 with supplementary tuition in the form of related services provided at Private School in the amount of $104,361.60, for a total of $279,361.60. In addition, special transportation costs amount to $405 per trip, or $810 per day, for a total of 219 days for the 12-month school year, as defined in the transportation service agreement[65] totals $177,390.00. Equity demands that the DOE reimburse Parent for the tuition already paid, and directly fund Student’s remaining Private School tuition and special transportation costs all totaling $456,751.60. Nevertheless, since Parent’s obligation to pay the special transportation ceases upon termination of the transportation contract,[66] the DOE
64 Ex. P-K.
may provide materially similar transportation to Student.[67] Until such time as DOE implements special transportation, DOE shall continue to reimburse Parent for the unilaterally obtained transportation. The DOE’s responsibility to reimburse Parent for special transportation shall cease on the first day that the provisions of the transportation agreement release Parent from any future financial obligations and DOE implements special transportation.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School, to include the contracting of specialized transportation. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement, and direct funding.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that DOE shall directly fund Private School tuition in the amount of $175,000 and related services supplemental tuition in the amount of $104,361.60, for a total of $279,361.60.
2. ORDERED that, until such time as DOE actually provides special transportation materially similar to the one currently being provided unilaterally through Parent, and Parent can exercise her right to terminate the unilaterally obtained special transportation pursuant to the transportation agreement (exhibit L), DOE shall directly fund special transportation costs pursuant to that agreement in an amount of $405 per trip, or $810 per daily round-trip, for a total of 219 days for the 2022-2023 12-month school year, for a total of $177,390.00.
3. ORDERED that, pursuant to the agreement of the Parties on the record, the CSE shall reconvene within 30 days of receipt from Parent the completed independent Neuropsychological evaluation previously ordered by the undersigned in this case.
DATED: SO ORDERED
March 13, 2023
Dr. Oren Varnai, Esq., IHO
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 proceedings 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.
EXHIBITS
PARENT EXHIBITS
A. Due Process Complaint IH # 228467 2022-2023 School Year 07/06/2022 8 pages
B. NYC DOE Bilingual Psychological Evaluation 01/11/2022 5 pages
C. Affidavit of Neuropsychologist 08/10/2022 2 pages
D. Excerpt from NYC DOE Standard Operating Procedures Manual re: request for an Independent Assessment at DOE Expense 11/16/2021 1 page
E. Email regarding Bilingual Psychoeducational Evaluation 12/17/2021 1 page
F. NYC DOE Bilingual Social History Update 12/23/2021 3 pages
G. Private School IEP 02/09/2022 48 pages
H. NYC DOE IEP 02/10/2022 57 pages
I. PWN 03/21/2022 10 pages
J. Findings of Fact and Decision IH # 210869 03/23/2022 9 pages
K. Private School Enrollment Contract 06/15/2022 14 pages
L. Transportation Agreement 06/17/2022 5 pages
M. TDN 06/17/2022 2 pages
N. Determination Letter 07/06/2022 1 page
O. Affidavit of Parent (English Version) 03/07/2023 3 pages
P. Affidavit of Parent (Original Language Version) 03/07/2023 3 pages
Q. Affidavit of Director of Special Education 03/07/2023 4 pages
DOE’S EXHIBITS
1. IEP 2/10/2022 58 pages DOE
2. IEP Meeting Minutes 2/10/2022 9 pages DOE
3. Psychological Evaluation 1/11/2022 5 pages DOE
4. Classroom Observation 1/25/2022 2 pages DOE
5. Social History Update 12/23/2021 3 pages DOE
6. PWN 6/20/2022 19 pages DOE
IHO’S EXHIBITS
I. Parent’s Closing 3/10/2023 19 pages
II. DOE Closing 3/10/2023 13 pages
Footnotes
[4] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[5] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[6] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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].
[7] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[8] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[9] R.E., 694 F.3d at 190-91.
[10] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[11] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[12] 20 U.S.C. § 1415[f][3][E][i].
[13] Rowley, 458 U.S. at 203.
[14] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[15] Endrew F., 137 S. Ct. at 1001.
[16] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[17] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[18] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[19] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[20] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[21] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[22] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[23] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[24] Endrew F., 137 S. Ct. at 1000.
[25] Ex. IHO-I-2.
[26] State Appeal No. 22024, FN 5.
[27] Ex. IHO-II.
[28] Endrew F., 137 S. Ct. at 1002.
[29] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[30] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[31] Gagliardo, 489 F.3d at 112.
[32] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[33] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[34] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[35] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[36] Ex. P-Q.
[39] Ex. P-L.
[40] Ex. P-O-P.
[41] Frank G., 459 F.3d at 364.
[42] Ex. P-L.
[49] State Appeal No. 21-057 citing Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997].
[50] Ex. P-G46.
[51] Ex. P-L1.
[52] Ex. DOE-1-53.
[53] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[54] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[55] Ex. P-M.
[56] Ex. P-N.
[57] Ex. IHO-II-4.
[58] E.T. v Bd. of Educ. of the Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *15 [S.D.N.Y. Nov. 26, 2012].
[59] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 [2d Cir. 2014]. See State Appeal No. 22-144.
[60] Ex. IHO-II-6.
[61] See transcript.
[62] Ex. IHO-II.
[63] Ex. P-O.
[65] Ex. P-L.
[66] Ex. P-L3 paragraph 7.
[67] This case is substantively different from Abramas v. New York City Dep’t of Educ. 2022 U.S. Dist. LEXIS 31105 (February 22, 2022) which deals with the same private transportation provider as the one in this case and appears to contain the same language in the transportation agreement. That case dealt with pendency rights, and the District Court determined that the Parent should not be expected to terminate the transportation contract to mitigate costs to the DOE even though she could have exercised that right. The rationale was that due to the uncertainty surrounding the COVID-19 pandemic, “[i]t was entirely unclear when schools would reopen,” and the parent needed to have a transportation agreement in place to shuttle the student to school if and/or when the unilateral placement reopened. In this case, if DOE can implement special transportation, there would be no doubt that Student would receive special transportation, and Parent can remediate the expenses DOE would be responsible for by electing to terminate the contract. In addition, the District Court focused on the contractual obligation under the terms of the contract irrespective of whether the student used the transportation services.