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FINDINGS OF FACT AND DECISION
Case Number: 229214
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Home District #REDACTED
Service District #REDACTED
Impartial Hearing Officer: Elana Soleimani
Date of Filing: July 5, 2022
Hearing Requested by: Parent
Date of Hearing: August 26, 2022
Record Close Date: October 14, 2022
Date of Decision: October 14, 2022
NAMES AND TITLES OF PERSONS WHO REQUESTED EXTENSION:
For the Student:
REDACTED Attorney for the parent REDACTED on behalf of the student, (hereinafter referred to as “Parent” and/or “Parent’s representative “respectively)
For the Department of Education (“DOE”):
REDACTED, Esq., and REDACTED, Esq., jointly appeared on behalf of the DOE (hereinafter referred to as the “District’s Representatives”)
BACKGROUND AND PROCEDURAL HISTORY
The Parent, through counsel, filed a Due Process Complaint(“DPC”) on or about July 5, 2022. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer the Student a free and appropriate public education (“FAPE”) for the 2022-2023 school year.[1]
I was appointed IHO on July 22, 2022. I wrote to the parties on July 25, 2022, scheduling a settlement conference and pre-hearing conference (PHC). On August 5, 2022, the parties appeared for a WebEx settlement and pre-hearing conference. The parties indicated that the issues presented for determination were the following: Pendency for the student, the last agreed upon placement should revert to an FOFD from 2020; and declassification of student from 12-month service program to 10-month service program with a decrease in SETSS from 8 hours per week to 5 hours per week. Parent is seeking the following relief: Implementation of 8 Session per week of 1:1 SETSS at an enhanced rate; Pendency as of the October 2020 FOFD; funding or payment to the Student’s SETSS provider; and a finding of a denial of FAPE. On August 26, 2022, both parties appeared for a virtual combined pendency/impartial hearing on the merits.
District’s Case:
The District asserted in their opening statement that the DOE provided the Student with a FAPE.[2] That the Parent will not meet their burden with regards to appropriateness but there are no prong 3, or equities issues that the District is asserting.[3] Pendency lies in the most recent un-appealed FOFD dated May 6, 2022 from complaint number 203131.[4] Accordingly, pendency should vest in the last agreed upon IESP dated July 30, 2014 which was the basis for the FOFD in May 2022.[5] The DOE submitted 4 exhibits into the record without objection, but presented no witnesses for direct testimony. (hereinafter referred to as D-1, D-2 etc…) The District did cross-examine Parent’s witnesses. Lastly, the District declined to give a closing statement.[6]
Parent’s Case:
The Parent’s Representative made a short opening statement setting out inter alia, the case the Parent intended to put on and the conclusions that the evidence would support, specifically that the findings sought in the Due Process Complaint (DPC”) would be appropriate and support the relief contained therein. The Parent’s Representative entered exhibits A-L into evidence. (hereinafter referred to as P-A, P-B, etc…)
Parent’s Representative specifically asserted the following in his opening statement:
Student is entitled to an extended 12-month school program with 8 periods of SETSS (special education teacher support services) per week.[7] Parent is seeking an enhanced rate for their provider of choice at $195/per hour.[8] The DOE failed to develop an appropriate program for the Student.[9] In addition the DOE failed to provide a SETSS provider and left the parent to choose a provider and bear the financial burden.[10] The Parent also disagrees that the Burlington/Carter analysis should apply in this matter as this is not a tuition reimbursement case but did provide arguments in the alternative.[11] In addition the Parent disagrees with the Districts position on pendency and maintains that pendency lies with an FOFD from 2020 which provided for 8 periods of SETSS per week.[12] In short Parents are seeking a 12-month school year, 8 periods per week of SETSS, Pendency as of the 2020 FOFD, an order that the DOE failed to provide a FAPE for the 2021-2022 school year, and direct funding/reimbursement of enhanced rate SETSS.[13]
Parent’s closing argument was limited to arguments not presented in the opening statement. Parent concluded that the District’s cross examination of their witness did not yield information that would go against Parent’s claims.[14]
JURISDICTION
The hearing and decision in this matter are authorized pursuant to the Individuals with Disabilities Education Act (hereinafter, IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and Article 89 of the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. §200.5 et seq.
LEGAL FRAMEWORK
Pendency The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.[15]
Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.[16]
Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement.[17] Although not defined by statute, the phrase “then-current placement” has been found to mean either:
(1) the placement described in the student’s most recently implemented IEP;
(2) the operative placement actually functioning at the time when the due process proceeding was commenced; or
(3) the placement at the time of the previously implemented IEP.[18]
Educational placement is "the general type of educational program in which the child is placed,"[19] and "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers."[20] If there is an agreement between the parties with respect to placement during the due process proceedings, it would serve to supersede other agreements, and a new IEP need not be created.[21] Finally, a prior un-appealed IHO decision establishes a student's pendency as his current educational placement.[22]
Enhanced Rate; SETSS
Pursuant to New York’s “dual enrollment” statute under the Education Law, Educ. Law § 3602-c, the CSE must make special education available to students with disabilities in nonpublic schools on an equitable basis as compared the services provided to other students with disabilities attending public schools and nonpublic schools and develop an IESP for such students. § 3602-c also enables a parent to initiate an impartial hearing pursuant to Educ. Law § 4404 in order to review the CSE’s recommendations.
Under the IDEA, where there is a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.[23] Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.[24] Failure to timely implement an IEP is likely to result in a deprivation of educational benefits.[25]
Tuition Reimbursement (Burlington/Carter)
Burden
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.[26]
Prong I The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").[27] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[28] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[29] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[30]
Prong II
A private school placement must be "proper under the Act."[31] This means that the private school must offer an educational program which met the student's special education needs.[32] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[33] 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.'"[34]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[35] 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."[36] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[37]
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.[38]
Equities
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."[39] 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. [40]
FINDINGS OF FACT AND DECISION
Pendency
At the combined hearing, the Parent Representative asserted that pendency should be based on a prior Findings of Fact and Decision (FOFD) issued on October 9, 2020, by a different IHO[41]. The issues in the previous FOFD were limited to the 2019-2020 school year: whether the DOE provided the Student with a FAPE, and is the Student entitled to 12 months of services consisting of 8 hours of SETSS per week at an enhanced rate of $150 per hour. After a complete hearing on the merits, the IHO in 2020 found that the Student was entitled to 12-months of SETSS services at the rate of $150 per hour, for remote learning.
The DOE Representative asserted that pendency should be based on the most recent un-appealed FOFD dated May 6, 2022, Case #203131, issued by another IHO.[42] The May 2022 FOFD deals with issues relating to the 2020-2021 school year. In the 2022 DPC (Case #203131) the Parent asserted that the 2019 IESP was inappropriate, and that the Student requires an Extended 12-Month School Year (ESY) and that Student should receive 8 periods of SETSS at an enhanced rate of $175 per hour. The IHO in 2022 found that the DOE failed to meet its burden in showing that they provided the Student with a FAPE for the 2020-2021 school year and that the 2019 IESP was not appropriate. Although the DOE did not meet their burden with regards to a FAPE, the Parent did not provide sufficient basis to grant the relief requested. “Although the record shows that Student’s pendency entitlement was 8 periods of SETSS, and that its basis was an FOFD dated October 19, 2020, that alone does not prove that Student should have been mandated for 8 periods of SETSS per week in the 2019 IESP. Without any testimony from a person present at that meeting, I cannot conclude that the CSE was on notice that Student required either eight hours of SETSS or a twelve-month school year.”[43] “Because there is no objective evidence of substantial regression in the record, I am unable to find that Student needed twelve-month services. Similarly, because there is no objective evidence that Student required eight periods of SETSS in order to make appropriate progress in light of [his] circumstances, I am unable to find that Student should have been recommended eight periods instead of five in the 2019 IESP.”[44] The IHO in 2022 does not deal with the issue of the enhanced rate.
The Parent presented a prior Pendency Agreement signed on October 4, 2021 for a prior case (210370).[45]
State Review Officer decisions—although not precedential—are illustrative and logically consistent in that pendency orders are not based on the merits of the case and cannot serve as the basis for a subsequent pendency determination. “As there was no final determination in [the proceeding], the interim order decision issued cannot be considered as [a] binding unappealed determination.”[46]
As clearly outline in de Paulino, “it is the [District], not the Parents, that is authorized to decide how (and where) the Students' pendency services are to be provided.”[47] “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."[48]
On this record, I find that pendency should be based upon the most recent un-appealed FOFD issued on May 6, 2020, providing for a 10-month school year and 5 hours of SETSS per week. As to the issue of rate I will provide that analysis in its totality below.
Enhanced Rate SETSS:
This matter concerns the Parents’ challenge, in a due process complaint filed on July 5, 2022, to the District’s alleged failure to implement an IESP for a student with a disability, for the 2022-2023 school year.
In addition to the District disagreeing with the amount or frequency of the services that the DOE has been unable to provide at the standard rate, it is also disputing the enhanced rate of $195 per hour for the SETSS services. The DOE rested its case on documents and cross-examination alone and did not proffer any additional witness testimony. The Parent provided the testimony of the Educational Director of the Agency.
Parents witness testified via affidavit as follows: (P-G)
Witness is an Educational Director at Agency.[49] The Agency charges $195/hour of SETSS.[50] The rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs, interest loans and overhead costs.[51] Student currently receives 8 hours of SETSS for the 2022-2023 school year starting on July 1, 2022 with the agency.[52] Student has already shown signs of progress, however his academic and social delays as well as severe attention difficulties warranted the need for a significant increase in services.[53]
The District had an opportunity to cross examine the witness. Upon cross-examination the District sought information as to how the Agency came to the enhanced rate of $195. Witness testified that many factors including qualifications of the teacher come into the calculation of the rate.[54] Redirect examination of the witness was conducted by Parent attorney but yielded no new or additional information.
I credit the Educational Director’s testimony as to the rate charged and services provided to the Student.
As to the fairness of the enhanced rate of $195 per hour for services, the record is silent as to the search or research the Parent undertook to find a DOE provider, or any other provider. There is no indication in the record that she notified the CSE that she was engaging a private provider at $195 per hour prior to the filling of the DPC on July 5, 2022. However, the District provided no evidence or testimony to rebut the reasonableness of the enhanced rate. Based on the above, and in view of the DOE’s failure to prove the unreasonableness of a rate of $195per hour, I find that in this case a rate of $195 per hour for the mandated SETSS services is fair and reasonable.
Tuition Reimbursement The District takes the position that the Burlington/Cater analysis used for tuition reimbursement cases should be applied in this matter. That since Parent sought a private SETSS provider, this is analogous to a unilateral placement in a non-approved or private school setting and the burden should be shifted to Parent to prove the appropriateness of the placement.[55] In this case, a remedy for a deficiency on the part of the DOE to provide agreed to services from an IESP under State Law should be similar to a remedy for deficient services under the IDEA.[56] Although the District did proffer documentary evidence, this record is insufficient to defend its provision of services to the Student. The District entered two IESPs, one FOFD and the prior written notice (PWN) packet into evidence.[57] The District did not deny that the Student was entitled to SETSS. They offered no evidence during the hearing and did not otherwise argue that the DOE either did not have the obligation to deliver services, that the DOE delivered all or most of the services that the Student was entitled to receive or that any lapse in service did not amount to a substantial and material deviation from the services mandated. Where the District fails to provide Student with appropriate special education services, the deficiencies alleged by the parent in the DPC are, for purposes of crafting relief, deemed true to the extent not contradicted by the hearing record.[58] Therefore I do not believe the Burlington/Carter analysis the appropriate standard in this case.
However, in the alternative I offer the following analysis:
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the DOE submitted evidence into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the 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.”[59] Therefore, I find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
I find that Parent has met their burden in proving that the Agency offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard as per the testimony of Educational Director.[60]
In reviewing the evidence and testimony, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Agency and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[61] I note that the DOE offered no arguments challenging the equities in this action. I further note that the DOE did object to any document accepted into the record.[62] Under these circumstances, I find that the Parent’s witness and evidence are credible.
I find no issue with the reasonableness of the costs or rate associated with the Agency and its providers. Student attended the Agency since July 2022. 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 Student.[63] Overall and after considering the record at hearing, I find that the equities support Parent’s claim for an enhanced rate for the SETSS provider and direct funding.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
- • That the DOE shall, provide Student with services retroactive to the first day of the 2022-2023 10-month school year during the pendency of this matter, consisting of SETSS, Direct Group Service in English, five (5) periods per week with the Parents preferred licensed provider at an enhanced rate of $195/hr. to be paid directly to provider within 14 days unless Parent provides proof of payment within 10 days for reimbursement; and
- • That the DOE shall pay the cost of the mandated services of SETSS, Direct Group Service in English, five (5) periods per week with the Parents preferred licensed provider at an enhanced rate of $195/hr. for the remainder of the 2022-2023, 10-month school year paid directly to provider; and
- • That the DOE shall re-evaluate Student in all areas of suspected need and/or disability within 60 days of this order; and
- • The CSE shall re-convene and hold a meeting to develop a new IEP/IESP for Student to address the full range of Student’s issues and disabilities in accordance with the requirements of 34 C.F.R.Sec.300.320 & 300.324(a)(1)&(2); 8NYCRR Sec 200.4(d)(2)&(3), within 30 days of the completion of the evaluations ordered above.
Dated: October 14, 2022
_____________________
Elana Soleimani, 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 appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1.
IESP
7/30/2014
9
2.
FOFD
5/6/2022
11
3.
IESP
3/4/2022
10
4.
PWN
3/4/2022
7
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A Impartial hearing Request 7/5/2022 6
B IEDP 3/4/2022 10
C FOFD 10/19/2020 13
D Letter from Dr [REDACTED] 5/14/2021 3
E Education Report 1/18/2022 5
F Provider Certifications Various 3
G Affidavit of Education Director 8/19/2022 3
H Agency Agreement Contract 7/1/2022 1
I NYS Benefits Card 2/20/2022 1
J Pendency Agreement 10/04/2021 2
K Email Authorizing Billing 1/19/2022 5
L Invoices Various 23 APPENDIX Redacted Information
Term Used In Order
REDACTED
Student
REDACTED
Date of Birth
REDACTED
Student’s I.D. Number
REDACTED
Parent(s)/Guardian(s)
REDACTED
Parent Representative
REDACTED
District Representative (1)
District Representative (2)
REDACTED
Agency
REDACTED
Director at Agency or Director or Education Director
Footnotes
[1] P-A
[2] Tr. P.15 L19-20
[3] Tr. P.15 L22-25 and P.16 L1
[4] Tr. P.16 L4-7 Referencing D-2
[5] Tr. P.16 L8-10
[6] Tr. P.44 L18-20
[7] Tr. P. 16 L19-21
[8] Tr. P.16 L21-5 and P.17 L1
[9] Tr. P. 17 L2-4
[10] Tr. P. 18 L1-6
[11] Tr. P.18 L25 and P.19 L1-8
[12] Tr. P.19-P.21
[13] Tr. P.21 L22-25 and P.21 L1--14
[14] Tr. P45 L1-4
[15] U.S.C. § 14159(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.
[16] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).
[17] Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906.
[18] Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 (holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).
[19] Concerned Parents, 629 F.2d at 753, 756.
[20] T.M., 752 F.3d at 171.
[21] see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].
[22] Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197.
[23] U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.
[24] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).
[25] Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[26] (NYS Educ. Law § 4404(1)(c)).
[27] (20 U.S.C. § 1400 (d)(1)(A)
[28] (34 C.F.R. § 300.13)
[29] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)
[30] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017)
[31] 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)
[32] 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)
[33] Gagliardo, 489 F.3d at 112
[34] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
[35] Frank G., 459 F.3d at 364-65.
[36] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[37] U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of duc. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[38] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65)
[39] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)
[40] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[41] P-C
[42] D-2
[43] D-2-7
[44] D-2-8
[45] P-J
[47] F.3d 534 (2d Cir. 2020).
[48] Id, at 527. Emphasis added.
[49] P-G (5)
[50] P-G (8)
[51] P-G (9)
[52] P-G (11) (12)
[53] P-G (20)
[54] Tr. P.32
[55] 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)
[56] See generally, DOE v. E. Lyme Bd.of Educ., 262 F. Supp. 3d 11, 27 [D.Conn.2017]
[57] D-1-4
[58] Application of a Student with a Disability, Appeal No. 20-023; [see also Application of a Student with a Disability, Appeal No. 19-038; Application of a Student with a Disability, Appeal No.15-050; Application of a Student with a Disability, Appeal No. 15-011; Application of a Student with a Disability, Appeal No. 14-079]
[59] Endrew F., 137 S.Ct. at 1002
[60] P-G
[61] Frank G., 459 F.3d at 364
[62] An initial objection to D-L was made with regards to the date, upon explanation the objection was withdrawn.
[63] Based on parent participation and attendance in IESP meetings.