New York City Department of Education, Impartial Hearing Decision

NYSED # 577795 NYC# 230017

FINDINGS OF FACT AND DECISION

Case Number: 230017

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.,

Rep. District REDACTED

REDACTED

Impartial Hearing Officer: Dr. Oren Varnai, Esq.

Date of Filing: 8/23/2022

Hearing Requested by: Parent

Dated of Hearing: 10/28/2022

Record Close Date: 7/17/2024

Date of Decision: 7/17/2024

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:

For the Student:

1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
2. REDACTED, Parent (hereinafter referred to as “the Parent”).

For the Department of Education (“DOE”):

1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)

List of Terms

Private School - REDACTED

Director of Education - REDACTED

Director of Therapy - REDACTED

Psychologist - REDACTED

ABA Director - REDACTED

Special Education Teacher - REDACTED

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 FINDINGS OF FACT AND DECISION

against Case # 230017

THE NEW YORK CITY Dr. Oren Varnai, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

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 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

1. Due Process Complaint Notice

Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 8/23/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). During the school year in which Parent filed the DPC, Student was diagnosed with Autism, and was found eligible for an extended school year, 12-month, program.^[1]

The undersigned IHO was appointed to preside over the case on 8/25/2022, and a Prehearing Conference was held on 9/22/2022; the DOE did not hold a resolution session as required under 8 NYCRR 200.5(j)(2)(i) or submit Prior Written Notice (“PWN”) or a Due Process Response (“DPR”) to the DPC as required under 8 NYCRR 200.5[i][4]. A Due Process Hearing (“DPH”) was scheduled for 10/13/2022, but DOE’s Attorney requested an adjournment of the DPH due to a medical emergency. The hearing was held over the course of two days on 10/20/2022 & 10/28/2022.

The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022^[2]; 2022-2023 school year(s), by, among other things, failure to provide an appropriate education placement, failure to identify appropriate methodologies, failure to include Physical Therapy as part of Student’s program, failure to provide Student with appropriate post-secondary goals, and failure to develop appropriate educational goals.^[3]

DOE presented documentary evidence and the testimony of DOE’s Special Education Teacher. Parent presented documentary evidence and the testimony of Parent, Director of Education, Director of Therapy, Psychologist, and ABA Director.

III. Finding of Facts and Decision

1. FAPE and Unilateral Placement
2. The DOE Deprived Student of a FAPE for the 2021-2022^[4] and 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.^[5] 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.^[6]

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.^[7] "[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."^[8] 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."^[9]

"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"^[10] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.^[11] 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.^[12]

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"^[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"^[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"^[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,^[18] 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.'"^[19]

The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"^[20] and designed to be provided in the least restrictive environment (“LRE”).^[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,^[22] 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^[23] through the use of appropriate special education services.^[24] 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."^[25]

1. The DOE Failed to Provide Student with an Appropriate Education Program or Placement

In its closing brief, DOE argues in conclusory fashion that it had provided Student with a FAPE. Aside from reciting the relevant caselaw on the provision of a Free and Appropriate Public Education, there are no substantive arguments as to why Student’s IEP was appropriate or the manner in which the DOE arrived at this conclusion. In addition, although the undersigned IHO is cognizant of the similarities in many special education cases and the propensity to use stock language in briefs and motions, DOE’s closing brief included language and arguments that were not part of the present case and were merely cut-and-paste from another proceeding referring to the wrong student and the wrong school years:

“…the testimony and exhibits introduced at hearing clearly establish that the DOE provided a FAPE for redacted. for the 2013-2014 as well as 2014-2015 school years”^[26]

DOE’s Attorney further cited State Appeal Nos. 06-132, and 07-007 instead of the numerous, more recent, SRO opinions, and misspelled the name of its own witness, Special Education Teacher. Undoubtedly, any person is susceptible to the occasional scrivener’s error, to include the undersigned IHO, but greater care should be taken in any judicial or administrative proceeding to ensure minimal adherence to sound legal practice, especially when the educational needs of a child and substantial public expenses are at stake. The hearing concluded on 10/28/2022, and IHO granted additional time to prepare closing briefs while transcripts were pending and to accommodate Parent’s counsel request for additional time due to a personal issue. DOE timely submitted its closing brief on 12/8/2022, and the intervening 5 weeks would have been more than sufficient for the submission that did not include the aforementioned errors.

Substantively, the DOE failed to show how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. DOE did not meet its burden with respect to Student’s toileting needs and did not rebut Parent’s testimony on the matter.^[27] Similarly, DOE failed to rebut Parent’s claim that there was no appropriate postsecondary transition plan and that DOE failed to develop appropriate goals.

Neither DOE’s direct examination of it sole witness, Special Education Teacher, nor DOE’s cross-examination of Parent’s witnesses shed light on DOE’s mandate to provide Student with a FAPE. In short, the DOE did not “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] I find the testimony of Parent’s witnesses persuasive, credible, and unrebutted. Specifically, Psychologist’s testimony was unequivocal in that “[she] did not think the [DOE placement] was appropriate…[and] that it did not meet [Student’s] specific needs. [She] felt that [the program] was also trying to water down a common core curriculum in a way that was not…viable.”^[29]

I find that the DOE failed to meet its burden by failing to present its own persuasive case on the appropriateness of its placement or rebut Parent’s witnesses’ testimonies, and I find that the DOE substantively deprived Student with a FAPE in its program and placement determination.

1. The CSE was Properly Constituted

Contrary to Parent’s assertion that the CSE did not include a Physical Therapist^[30] in conformity with 8 NYCRR §200.3(a), there is no such requirement in State or Federal statutes. Members of the CSE could have interpreted the evaluative materials presented in front of them without a Physical Therapist in attendance, and therefore, the CSE was properly constituted.

1. The DOE Denied the Student a FAPE by its Failure to Include Physical Therapy

The IDEA does not require that specific instructional methodologies be included in the IEP.^[31] Further, generally, unless there is evidence that a specific methodology is required, teachers are authorized to use their discretion regarding the methodology to be employed.^[32] However, when reports and evaluative materials “yield a clear consensus,” an IEP that fails to provide those services is not “reasonably calculated to enable a child to receive educational benefits,” thereby substantively denying a student a FAPE.^[33] In at least one case, an IEP was found to be substantively inadequate where there was "clear consensus" that student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee” of the use of this methodology.^[34]

The CSE is not bound by the evaluative material it has in front of it when making a program recommendation for Student, and it can decide alternative methods by which to provide tailored instruction to the Student if it reasonably believes that the needs could be addressed differently. However, despite having Student’s Physical Therapy Report^[35] the DOE presented no evidence as how Student’s deficits would be addressed in other ways.

Therefore, I find that Student requires Physical Therapy, and the DOE’s failure to consider and provide such service substantively deprived the Student of a FAPE.

1. Conclusion

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden that it provided the Student with a FAPE for the 2021-2022 and 2022-2023, 12-month, school years. Therefore, I find that the DOE failed to offer the Student FAPE for the 2021-2022 and 2022-2023, 12-month, school years. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE.

1. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)

A private school placement must be "proper under the Act."^[36] This means that the private school must offer an educational program which met the student's special education needs.^[37] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."^[38] 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.'"^[39]

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."^[40] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[41]

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.^[42]

The DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate. Parent provided the Private School program description,^[43] academic schedule,^[44] Student’s Individualized Transdisciplinary Education Plan Private School developed,^[45] Student’s attendance record,^[46] and Student’s progress report.^[47]

Psychologist testified that although it was not typical for a Student with Autism to be placed in a residential program as the one Student is enrolled in “…as a statistician, looking at the raw numbers, will indicate there’s a small number of children on the autism spectrum that need residential. But in this particular case…it was the only appropriate option…”^[48] and that “…[Student was] a very unique child…”^[49] I found the testimony of Psychologist and Parent’s other witnesses persuasive, credible, and unrebutted.

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."^[50]

1. The Equities Are in Parents’ Favor (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."^[51] 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.^[52]

By way of relief, Parent seeks reimbursement^[53] for their private school tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and Parent 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.”

It is well established that a Parent must inform the CSE during the most recent CSE meeting, or notify the District at least ten days prior to the Student’s removal "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."^[54] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."^[55] “Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.”^[56]

Here, Parent fulfilled the statutory requirement to provide the DOE with a Ten-Day Notice (“TDN”)^[57] for each of the school years in Parent’s DPC detailing their specific concerns and giving 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, or that the IEP was reasonably calculated to provide the Student with meaningful educational benefit. Parent testified of her inability to pay the tuition.^[58]

The tuition at Private School is significant.^[59] Nevertheless, having found that the placement was appropriate and met Student’s needs, and without a contrary view or position from DOE other than to summarily object to the unilateral placement, I find that the tuition costs are reasonable. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement.

1. Compensatory Education

The IDEA applies to children between the ages of 3 and 21, but States have leeway with respect to eligibility age.^[60] New York law entitles children with disabilities to special education services until they receive a high school diploma or complete the school year following their twenty-first birthday,^[61] at which point, a child is no longer entitled to the protections of the IDEA.^[62] Nevertheless, a child who is above the age of eligibility can receive "compensatory education," which is "prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education."^[63]

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case,^[64] with the purpose of providing an appropriate remedy for a denial of a FAPE.^[65] In fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place."^[66] An award of compensatory education should be designed so as to "appropriately address[] the problems with the IEP,"^[67] “place children in the position they would have been in but for the violation of the Act, "^[68] "replace[] educational services the child should have received in the first place"^[69] and "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA."^[70]

New York State Law places the ultimate burden of production and persuasion^[71] on the District to express its views as part of the evidentiary record on the issue of the appropriate compensatory education which would place the Student in the position he would have been but for the denial of a FAPE.^[72]

Although Parent’s Attorney requested in her closing brief that Student be awarded a bank of 280 hours for the deprivation of FAPE for the portion of the 2021-2022 school year spanning January 2022 through May 2022 (the month when Student was moved to the unilateral placement at Private School) Psychologist testified that, qualitatively, “…the educational literature indicate that you need about 200 remedial hours to close one grade level gap,”^[73] and since the deprivation of FAPE alleged for the 2021-2022 school year covered the months of January-April 2022, Psychologist “…would take the 200 hours and divide it by…one fourth of that because three months is a quarter of the year, and so that would be [] 50 hours but it would be 50 hours in three of the core subject areas. Fifty hours in math, 50 hours in written language, 50 hours in reading.”^[74] I find Psychologist’s testimony persuasive, credible, and unrebutted, and find that Student is entitled to 50 hours of compensatory education in each of the three subjects Psychologist outlined.

Finally, having found that Student is entitled to Physical Therapy, which the CSE did not provide, I find that Student is entitled to 42 hours of compensatory physical therapy as DOE presented no alternate argument as to the number of hours Student was owed.

IV. Orders

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:

1. ORDERED that the DOE shall, within 30 days of receipt of proof of attendance, invoices, and receipts, reimburse Parent for the cost of tuition already paid to Private School for the 2021-2022 school year, and directly fund Private School for any remaining balance in a total amount not to exceed $75,949.17;
2. ORDERED that the DOE shall, within 30 days of receipt of proof of attendance, invoices, and receipts, reimburse Parent for the cost of tuition already paid to Private School for the 2022-2023 school year, and directly fund Private School for any unpaid balance due, in a total amount not to exceed $455,695.00.
3. ORDERED that the DOE shall fund Student’s private remediation tutoring for a total of 150 hours (50 hours in math; 50 hours in written language; 50 hours in reading), to be provided by a qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered, not to exceed $110 per hour; the award may be used for up to three (3) years from the date of this order.
4. ORDERED that the DOE shall fund 42 hours of Physical Therapy to be provided by a qualified provider of the Parent’s choosing, at the prevailing reasonable market rate existing on the date that services were rendered, not to exceed $210 per hour; the award may be used for up to three (3) years from the date of this order.

DATED: SO ORDERED

7/17/2024

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 Exhibit	Date	Title	No. of Pages
P - A	08/23/2022	Demand for Due Process Hearing	7
P - B	01/24/2022	IEP	28
P - C	02/24/2021	IEP	21
P - D	02/04/2022	Prior Written Notice	11
P - E	12/07/2021	Neuropsychological Evaluation	22
P - F	11/30/2021	Vocational Assessment	20
P - G	11/10/2021	Speech Language Evaluation	5
P - H	10/21/2021	Occupational Therapy Evaluation	8
P - I	10/15/2021	Physical Therapy Evaluation	4
P - J	07/28/2021	Psychological Evaluation	6
P - K	03/19/2019	Assistive Technology Evaluation	4
P - L	06/16/2022	Ten-day Notice	1
P - M	06/16/2022	Ten-day Notice Submission	1
P - N	06/16/2022	Ten-day Notice Receipt	1
P – O	04/06/2022	Ten-day Notice	1
P – P	04/06/2022	Ten-day Notice Submission	1
P – Q	04/06/2022	Ten-day Notice Receipt	1
P - R	2022-2023	Program Description	1
P – S	2022-2023	Academic Schedule	1
P – T	08/23/2022	Tuition Affidavit - 2022-2023	1
P – U	08/23/2022	Tuition Affidavit - 2021-2022	1
P – V	06/15/2022	ITEP	27
P – W	5/24/2022	Enrollment Contract - 2022-2023	6
P – X	6/28/2022	Addendum C Payment Schedule - 2022-2023	1
P- Y	05/24/2022	Enrollment Contract - 2021-2022	6
P – Z	08/24/2022	Addendum C Payment Schedule - 2021-2022	1
P – AA	05/8/2022	Attendance Record	4
P – BB	2021-2022	Program Description	1
P - CC	2021-2022	Academic Schedule	1
P – DD	08/2022	Progress Report	15
P – EE	10/3/2022	Affidavit of Director of Education	9
P – FF	10/4/2022	Affidavit of Director of Therapy	4
P – GG	10/4/2022	Affidavit of Psychologist	9
P - HH	10/4/2022	Affidavit of Parent	7
P-II	10/5/2022	Affidavit of ABA Director	9
DOE Exhibit	Date	Title	No. of Pages
DOE-1	1/25/2022	IEP	29
DOE-2	12/8/2022	Mandated Three Year Evaluation	5
DOE-3	8/23/2022	DPC	8
DOE-4	9/27/2022	DPR	4
DOE-5	10/17/2022	Affidavit of Special Education Teacher	7
IHO Exhibit	Date	Title	No. of Pages
IHO-1	12/8/2022	DOE Closing Brief	11
IHO-2	12/11/2022	Parent’s Closing Brief	22

Footnotes

[1] Ex. P-D.

[2] Parent limited the challenge to the 2021-2022 school year to the January 2022 IEP with an implementation date of January 25, 2022. IHO2-3; Ex. PA-B. All references to the 2021-2022 school year will be assumed to be limited as described herein.

[3] Ex. P-A.

[4] Parent limited the challenge to the 2021-2022 school year to the January 2022 IEP with an implementation date of January 25, 2022. IHO2-3; Ex. PA-B.

[5] 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].

[6] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.

[7] 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].

[8] 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].

[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[10] R.E., 694 F.3d at 190-91.

[11] 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].

[12] 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.

[13] 20 U.S.C. § 1415[f][3][E][i].

[14] Rowley, 458 U.S. at 203.

[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.

[16] Endrew F., 137 S. Ct. at 1001.

[17] 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.

[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

[19] 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].

[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.

[21] 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.

[22] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].

[23] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].

[24] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].

[25] Endrew F., 137 S. Ct. at 1000.

[26] Ex. IHO 1-4; 5.

[27] Parent’s affidavit and Tr. pp. 32-33.

[28] Endrew F., 137 S. Ct. at 1002.

[29] Tr. p. 54.

[30] Ex. IHO2-13.

[31] See generally 34 C.F.R. § 300.320(d)(1) (information other than that specifically required by 614 of the Act not required to be included in a Student’s IEP); 8 NYCRR § 200.13 (no methodology included in requirements for educational programs for students with autism).

[32] See Rowley, 458 U.S. at 204; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 575-76 (2d Cir. 2014); A.S. v. New York City Dep't of Educ., 573 Fed. App'x 63, 66 (2d Cir. 2014); K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 86 (2d Cir. 2013); R.E., 694 F.3d at 192-94; M.H., 685 F.3d at 257.

[33] A.M. v. N.Y. City Dep’t of Educ., 845 F.3d at 543 quoting R.E. v. N.Y. City Dep’t of Educ., 694 F.3d at 190 (internal quotations omitted).

[34] R.E., 694 F.3d at 194.

[35] Ex. P-I.

[36] 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).

[37] 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).

[38] Gagliardo, 489 F.3d at 112.

[39] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[40] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.

[41] 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).

[42] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

[43] Ex. P-R; P-BB

[44] Ex. P-S; P-CC.

[45] Ex. P-V.

[46] Ex. P-AA.

[47] Ex. P-DD.

[48] Tr. p. 55.

[49] Tr. p. 56.

[50] Frank G., 459 F.3d at 364.

[51] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).

[52] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[53] The entitlement created by the law is exclusively the package of rights to a free appropriate public education in the least restrictive environment. While the statute creates a broad power on the part of decision-makers to devise remedies when that entitlement has been denied, those powers are discretionary and do not yield a right to receive reimbursement; reimbursement is merely an option, at the discretion of the decision maker, as he or she balances the equities of the individual case. To call a case a ‘reimbursement’ case is, therefore, to mischaracterize the parties’ rights and responsibilities by treating a discretionary remedy as though it were an inviolable right. For that reason, there is no such thing as a ‘reimbursement’ or ‘prospective payment’ case under the IDEA. There is, simply, no right or entitlement to receive either of those remedies under the statute.

[54] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

[55] State Appeal No. 22-050 quoting Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st 29 Cir. 2004].

[56] Id, citing Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68

[57] Ex. P-L – P-Q.

[58] Ex. P-HH-007.

[59] Ex. P-T; P-U.

[60] 20 U.S.C. §1412(a)(1).

[61] N.Y. Educ. Law § 4402(5).

[62] See Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 113 (2d Cir. 2008).

[63] Id, at 109 n.2.

[64] Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].

[65] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123.

[66] Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005].

[67] Newington, 546 F.3d at 123.

[68] Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008].

[69] Reid, 401 F.3d at 518.

[70] Id.

[71] Educ. Law § 4404[1][c].

[72] E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524

[73] Tr. p.58.

[74] Tr. pp. 58-59.