New York City Department of Education, Impartial Hearing Decision

NYC: 230747

FINDINGS OF FACT AND DECISION

Case Number: [230747]

Student’s Name[redacted]. (“Student”)

Date of Birth: [redacted]

School District: [redacted

Hearing Requested by: Parent (“Parent(s)”)

Request Date/Date Complaint Filed: 8/31/2022.

Date(s) of Hearing: 01/10/2023

Actual Record Closed Date: 01/15/2023.

Date of Decision: 02/07/2023.

Date of Distribution if Different than Decision Date: same

Hearing Officer: Andrea R. Cohen

NEW YORK CITYL HEARING OFFICE

In the matter of

Student [redacted], a minor, by and through the Student’s Parents,

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO CASE #230747

FINAL ORDER

Andrea R. Cohen

Impartial Hearing Officer

JURISDICTION

This Final Decision And Order in the matter of [redacted] (“Student”) by and through his Parents against the New York City Department of Education is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

• • INTRODUCTION AND PROCEDURAL HISTORY

Parents filed this matter on behalf of Student on 08/31/2022. Parents and Student together shall be referred to as “Petitioners.” On 09/2/2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of Student. I conducted a hearing to determine the educational program and services to be provided by the DOE to Student during the pendency of this dispute on 11/29/2022 and issued a Pendency Order dated 01/12/2023. I convened a status conference on 01/10/2023, during which both parties requested, on the record, an FOFD providing the same terms set forth in the Pendency Order.

The record was closed on 01/15/2023.

BACKGROUND

Student is Parentally placed in a non-public school and is eligible for special education services under an IESP. Parent alleges the Department of Education (the “Department”) failed to offer to Student a free and appropriate education (FAPE) for the 2021/2022 School Year because it failed to implement services for student.

Petitioners’ Position, Relief Sought And Evidence

Petitioners allege that, for the 2022/2023 school year:

• • The DOE failed to provide Student with a FAPE: it failed develop and issue an IESP for Student, and failed to implement services for Student;
• • Student requires the following services:
• • SETSS, Direct Service, Group Service, English, 10 periods per week.

Petitioners seeks the following remedies:

• • The DOE be Ordered to provide to Student:
• • SETSS, Direct Service, Group Service, English, 10 periods per week.
• • A finding that the failure of the DOE to convene and recommend placement or services is
• • a denial of FAPE;
• • Absent an up-to-date program, an order that the DOE continue to fund the program
• • outlined in the IESP dated 5/15/2019 at the provider’s prevailing rate;
• • An order that the DOE fund a bank of compensatory periods of all services which Student
• • is entitled to under pendency for the entire 2022-2023 school year – or the parts of which
• • were not serviced;

The DOE’s Position, Relief Sought And Evidence The DOE presented no arguments to rebut Petitioners’ assertions.

ISSUES

Both Parties requested an FOFD be issued Ordering the DOE to provide the services as set forth in the Pendency Order.

• • STATEMENT OF LAW
• • FAPE
• • FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”) and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[1] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[2]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[3]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[4]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.^[5]

A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. ^[6]

Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[7] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student.

The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[8] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. ^[9]

It is the DOE’s statutory obligation to provide appropriate placement and services recommendations in the IEP. Moreover, it is the DOE’s responsibility to procure the recommended services for the student and offer an actual spot in a specified classroom. ^[10]

The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[11]

An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.” ^[12] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. ^[13]

A procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE. ^[14]

In matters alleging a procedural violation, an IDEA claim is viable only if those procedural violations affected the student's substantive rights.^[15]

A hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies--

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii)Caused a deprivation of educational benefit. ^[16]

• • FAPE - RELATED SERVICES

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”) and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[17] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[18]

• • Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

The definition is not meant to be exclusive and may cover unlisted services such as music therapy. Letter to Farbman, 34 IDELR 7 (OSEP 2000).

• • FAPE - RELATED SERVICES / PRIVATE SCHOOL ENROLLMENT

The IDEA does not confer an individual entitlement upon children enrolled in private school to receive services a child would receive if enrolled in a public school. ^[19] “In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools. Education for students with disabilities means special education programs ‘designed to serve’ students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Subdivision 2 of section 3602-c of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools.” SRO 06-069. Such a program is set forth in an individualized educational services plan or IESP.^[20] State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602-c[2][b][1]). State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.”

Education Law § 3602-c(b)(1) ensures due process rights to parents of children with IESPs consistent with the procedural safeguards in section 4404 of the Education Law, which is New York’s implementing statute of the IDEA. The Department has the burden of proving its program and placement recommendation to be appropriate. N.Y. Ed. L. § 4404(1)(c).

• • RELIEF/REMEDIES
• • REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” ^[21] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[22]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[23] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’” ^[24]

OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” ^[25] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[26]

• • REMEDIES - TUITION REIMBURSEMENT

The United States Supreme Court established a three pronged test to determine whether school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent: (1) were the services offered by the board of education inadequate or inappropriate, (2) are the services selected by the parent appropriate, and (3) do equitable considerations support the parent's claim. ^[27]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[28]

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). Parents “are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education.” Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also Carter, 510 U.S. at 12-14. An appropriate private placement need not meet state education standards or provide certified special education teachers or prepare its own IEP for the student. (see Frank G., 459 F.3d at 364; Carter, 510 U.S. at 13 (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). See Application of a Student with a Disability, Appeal No. 11-041).

In order to meet this burden, parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006]).

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” ^[29] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[30] In the Second Circuit, no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. ^[31]

• • REMEDIES - RELATED SERVICES

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, including transportation:

20 U.S.C. § 1401(26)

Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education ….

EQUITABLE CONSIDERATIONS

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Tuition reimbursement may be “reduced or denied... upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.^[32]

The IDEA provides that the private school costs may be reduced or denied if (1) at the most recent IEP meeting, the parents did not inform the District that they rejected the District’s proposed IEP and intended to enroll their child in a private program, (2) did not provide notice to the District at least 10 business days before removing their child from the public school that they disagreed with the IEP and intended to place their child privately, (3) if the District asked the parents to evaluate during the “notice period” and the Parents’ refused or (4) if the Court finds that the parents acted unreasonably in the process. 20 U.S.C. 1412(a)(10)(C)); 34 CFR 300.148[d]. See also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246– 47, 129 S. Ct. 2484, 2496, 174 L. Ed. 2d 168 (2009) (finding “[C]ourts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.”) “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). The Second Circuit has also found, “in making that equitable determination, the district court may consider many factors, including, inter alia, whether [parent’s] unilateral withdrawal of her child from the public school was justified, whether [parent’s] provided the [the district] with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether [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 [district], or whether the arrangement with the school was fraudulent or collusive in any other respect.” E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

FINDINGS OF FACT

The findings set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.

ISSUE 1- FAPE

There is nothing in the record showing the DOE to have developed and issued an IESP or provided services to Student for the 2022/2023 school year. The DOE presented no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to develop and issue an IESP for Student and failed to implement services for student for the 2022/2023 school year.

Both Parties requested an FOFD be issued Ordering the DOE to provide the services as set forth in the 01/12/2023 Pendency Order in which I set forth the following relevant findings:

• • The educational plan set forth in the IESP dated 5/15/2019 is the educational plan to be followed during the pendency of this matter;
• • The IESP dated 5/15/2019 requires the DOE to provide to Student:
• • SETSS, Direct Service, Group Service, English, 10 periods per week.

ISSUE 2- COMPENSATORY SERVICES

The DOE has produced no evidence, and has made no argument, rebutting Petitioners’ claim that the following services have not been provided to Student during the 2022/2023 SY:

• • SETSS, Direct Service, Group Service, English, 10 periods per week ISSUE 3 – EQUITIES There are no allegations, and the record contains no evidence suggesting that Parent’s conduct calls for a reduction in any remedy awarded.
• • CONCLUSIONS of law and Discussion
• • For the 2022/2023 school year, DOE failed provide Petitioner with a FAPE in that the DOE failed to provide appropriate services to Student.

New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools. Education for students with disabilities means special education programs ‘designed to serve’ students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Such a program is set forth in an individualized educational services plan or IESP.^[33] State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602-c[2][b][1]).

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for the school year at issue. ^[34] There is no dispute that the DOE did not meet its Prong I burden. However, both Parties requested an FOFD be issued Ordering the DOE to provide the services as set forth in the Pendency Order.

• • An award of compensatory services is appropriate under these circumstances.

“Because compensatory education is a remedy for past deficiencies in a student's educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.”^[35] I have found the DOE has failed to provide Student with a FAPE for the 2022/2023 school year.

The DOE has produced no evidence showing that it has provided the following services to Student for the 2022/2023 SY:

• • SETSS, Direct Service, Group Service, English, 10 periods per week Student is to be awarded a bank of hours of compensatory services to equal the number of hours of such services that the DOE failed to provide retroactive to the beginning of the 2022/2023 School Year. I find such a calculation to be reasonable and likely to enable Student to be in the same position he would have occupied but for the school district's violations. This calculation is not to include prospective hours for sessions that have not become due.
• • Equitable considerations support a full award of remedies sought.

I find that equitable considerations favor Petitioners. Parent has been cooperative in all dealings with the DOE. There is nothing in the record that calls for a reduction of any remedy awarded.

ORDER

Upon consideration of the Findings of Fact and Conclusions of Law noted above:

• • The DOE is Ordered to immediately provide the following services to Student for the 2022/2023 School Year:
• • SETSS, Direct Service, Group Service, English, 10 periods per week
• • If the DOE does not immediately provide such services, Parent may obtain such services from appropriately credentialed providers of Parent’s choosing for which the DOE is Ordered to make direct and timely payments at the provider’s current market rate for the 2022/2023 school year. Upon receipt of timely notice from Parent to the DOE of Parent’s intent to commence such services, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement the services.
• • To the extent that Parent has obtained such services privately, at Parent’s own expense, from appropriately credentialed providers, the DOE is Ordered to reimburse Parent for all costs at the current market rate.
• • The DOE is Ordered, upon receipt of billing statements from providers, and or upon receipt of proof of payment by Parents, to rapidly complete all administrative/bookkeeping procedures and promptly issue such payment and/or reimbursement check.
• • The DOE is Ordered to provide to Petitioner a bank of hours of compensatory services for the Services set forth in this Final Order section, Paragraph 1, above, equal to the number of hours the DOE failed to provide during the 2022/2023 SY, up to the date such services commence, to be furnished by a private provider of the Parent’s choosing, at the provider’s current market rate for the 2022/2023 school year. This calculation is not to include prospective hours for sessions that have not yet become due.
• • These compensatory services are to be provided outside the course of the regular school day, costs to be borne by the DOE.
• • The scheduling of these compensatory services is to be within the sole discretion of parent. Parent control includes, but is not limited to, frequency, spacing, and length of each session.
• • There is to be no time limit within which the compensatory education must be used. Services need not be provided during the school day and are not be provided during the time Student is entitled to receive such services from his current school placement.
• • Upon receipt of timely notice from Parent to the DOE of Parent’s intent to commence any and each of these compensatory services, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement these remedies.

SO ORDERED.

This 7th day of February 2023

Impartial Hearing Officer

Andrea R. Cohen

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.

Footnotes

[1] U.S.C. § 1400(d)(1)(A).

[2] C.F.R. § 300.320.

[3] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[4] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[5] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[6] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.

[7] See 20 U.S.C. 1414(d)(3)(B)(i).

[8] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[9] C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[10] see Educ. Law 3602-c[2][a]). NYSED; State Review Office; March 31, 2014 No. 14-022; Justyn P. Bates, S.R.O.

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

[12] R.E., 694 F.3d at 185Id. at 185-86.

[13] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).

[14] See, e.g., A.C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) (the failure to complete an evaluation in a timely manner did not result in substantive harm to the child).

[15] Lesesne v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis in original; internal citations omitted).

[16] C.F.R. § 300.513 (a)(2).

[17] U.S.C. § 1400(d)(1)(A).

[18] C.F.R. § 300.320.

[19] C.F.R. § 300.137(a) (“No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school”).

[20] E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012).

[21] U.S.C. § 1415(i)(2)(C)(iii).

[22] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[23] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[24] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[25] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[26] N.Y.C.R.R. § 200.6(j)(iii)(c).

[27] (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]).

[28] (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 [2d Cir. 2007]).

[29] (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112),

[30] (Gagliardo, 489 F.3d at 365).

[31] (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[32] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[33] E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012).

[34] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[35] Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007).