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CASE NUMBER: 580326 - NYC: 232286
FINDINGS OF FACT AND DECISION
Case Number: 232286
Student’s Name: REDACTED
School District: New York City Department of Education (“District”)
Hearing Requested by: Parent
Request Date/Date
Complaint Filed: 09/06/2022
Date(s) of Hearing: 11/02/2022
Actual Record Close Date: 12/20/2022
Date of Decision: 12/20/2022
Impartial Hearing Officer: Elana Soleimani, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON:
For the Student:
REDACTED, for Petitioner (“Parent Representative”)
REDACTED Can (“Director” or “ED”)
For the New York City Department of Education:
REDACTED, Esq., Attorney for Respondent (“District”)
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (O.A.T.H.)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor by and through
His Parents, REDACTED
Petitioner,
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
FINDINGS OF FACT
AND DECISION
Elana Soleimani, Esq.
Impartial Hearing Officer
INTRODUCTION AND PROCEDURAL HISTORY
Petitioner, the student’s parent, filed a Due Process Complaint (“DPC”) on 09/06/2021 against respondent/district.[1]
The DPC alleges procedural and substantive violations of the Individuals with Disabilities Act (“IDEA”) 20 U.S.C. § 1400, et seq., 34 C.F.R. § 300.130 to § 300.147, 8 N.Y.C.R.R. § 200.5, et seq. and New York State Education Law § 3602-c, collectively resulting in a denial of a free appropriate public education (“FAPE”). It is alleged that the Committee on Special Education (“CSE”) failed to: (a) fully and timely evaluate the student in all areas of suspected disability; (b) develop an Individualized Education Service Program (“IESP”) for the 2022/2023 school year; (c)failed to implement the last agreed-upon IESP from 3/25/2019; d)afford the parent the right to meaningfully participate in the development of the student’s IESP; (d) recognize the student’s need for an enhanced, comprehensive, clinically support, individualized, bilingual, special education instructional program; and (e) provide an adequate program of services to meet the student’s [unique] needs. The DPC also requested an order of pendency based on the student’s most recent IESP dated 3/25/2019.
I was appointed as the Impartial Hearing Officer (“IHO”) on 09/21/2022. A pre-hearing conference was held on 10/13/2022, via WebEx. All parties were represented. The pre-hearing conference order scheduled the combined pendency and due process hearing for 11/02/2022. On the date of the combined hearing, the district did not contest either the request for pendency or the parent’s assertion that the IESP from 3/25/2019 was the last agreed-upon placement.
The due process hearing was conducted on 11/02/2022. All parent disclosure and exhibits were stipulated into evidence without objection. The district, requested denial of the relief demanded in the DPC based on the assertion that the agency’s requested rate of $197 per hour for SETSS services is not appropriate. The District provided no evidence to support its statements.
The District in their opening statement Contested the appropriateness of services unilaterally sought by the Parent. Given the facts of the case the services are not appropriate to meet the needs of the student.
The Parent’s Representative asserted in their opening that DOE has not developed a new IESP since 2019 in fact as per Exhibit B, the date of the annual review was to be 3/25/2020 and that date has come and gone without reevaluations or assessments. Therefore, the Parents assert that the Student continues to need the services. The Parent did not submit personal affidavit testimony or testify at the hearing. The parent submitted the affidavit testimony of the educational director of the agency.[2] The director was sworn in as a witness, and the district conducted a brief cross examination. This IHO also asked questions to clarify the director’s affidavit testimony. Both parties then rested without presenting rebuttal evidence and presented their closing statements.
In closing the District argued that based on the evidence presented and in the record the DOEs position is that the services and the rate are not proper and the relief requested should be denied.
Parent’s Representative argued in their closing that in the absence of any action by the District for the las three years the parent was left with no other alternative than to seek an outside agency to provide services for their child. The cost breakdown of the rate was provided in detail by the Educational Director of the Agency and is appropriate and reasonable. Parents are seeking a Related Services Authorization (RSA) for both the SLT and OT as well as direct funding of five hours of SETSS per week through the Agency at the rate of $197 per hour.
JURISDICTION
This due process hearing was held, and a decision in this matter is being rendered according to the IDEA and the New York State Education Law, together with their implementing regulations.[3]
BACKGROUND
As of the date of filing of the due process complaint, the student was classified as a student with a speech or language impairment. The 3/25/2019 IESP provided five (5) hours of SETSS services per week, Speech-Language Therapy (“SLT”) two times per week for 30 minutes individually, SLT once a week for 30 minutes group service and Occupational Therapy (“OT”) two times a week for 30 minutes individually.[4] A CSE meeting for the 2022-2023 school year was not convened.
ISSUES
The last CSE meeting for Student was on 3/25/2019. The CSE’s failure to produce an annual IESP by the first day of the current school year is a denial of FAPE to the student and a denial to the parents of their right to participate in their child’s special education program. The District also failed to implement the last agreed-upon IESP from 3/25/2019. Since the district, did not implement any services for the student, the parent had no choice but to unilaterally place the student with the agency to receive services.
Accordingly, the parent is seeking an award of 5 hours per week of SETSS at the agency’s enhanced rate of $197 per hour; and RSAs to fund the relates services of OT, SLT individual and SLT group as the contract with the agency does include these related services. The district argued that the rate charged by the agency was improper.
Parent is also seeking an order with regards to pendency.
FINDINGS OF FACT
Pendency is based on an IESP from 3/25/2019. The DOE did not contest that pendency lies with the 3/25/2019 IESP but asserted that since the District proffered a resolution agreement (RA) to the Parent, a pendency order is not needed. The RA was sent to parent two days before the hearing was held and the Parent did not sign or agree to the proposed resolution. Therefore, pendency is still an issue to be decided. I do not find the District’s argument compelling and find that pendency lies with the IESP from 03/25/2019.[5]
Parent proffered affidavit testimony of the Education Director (“ED”) for the Agency. (P-H) ED Testified via affidavit as follows:
Educational Director is licensed by New York State as a Special Education teacher with a bilingual extension in Yiddish. Agency is a private agency that provides special education services including special education teacher support services (SETSS) to special education students in the New York City area and mainstream settings. The Agency charges $197 per hour. ED has communicated with other agencies in the industry and this rate is within the general market rate for services in the greater New York City area. This rate includes one-on-one supervision, educational resources and support, professional development and materials, employment taxes, administrative costs and overhead costs. Agency provides 5 hours per week of SETSS to the Student for the 2022-2023 school year in his mainstream school. In addition to direct 1:1 services the provides prepare for sessions, create goals, write progress reports and meet with teachers and parents to collaborate as a team on Student’s behalf. Parent’s Exhibit E the progress report is an accurate presentation of what the providers worked on with Student including goals over the course of the 2021-2022 school year. The Student has already shown signs of progress with her SETSS service providers. He is adjusting to the new year and is showing a desire to learn and invest effort. However, the Student’s academic and social delays warrant the need for continued services of SETSS 5 times per week in a 1:1 setting for the 2022-2023 school year.
The District was provided an opportunity to cross examine the affiant who testified as follows: Agency provides SETSS for Student, this is the second school year he is receiving services through the agency. $197 is the rate for the current school year. Providers enter time into a portal and submit to the Agency. Agency holds bills/invoices into abeyance until a determination with regards to payment is made. Parent also signs a contract with the Agency. (Exhibit D)
I find the testimony of the Director credible and unrebutted by the District.
After a full review of the record developed at the hearing and the written submissions, I make the following findings of fact:
a) Preliminary Finding
I find that it is uncontested that the student resides within the City of New York and is parentally placed in a private school located in Brooklyn, New York for the 2022/2023 school year. He is currently receiving special education services as set forth in the IESP dated 03/25/2019.
- • b) Appropriate Services and Enhanced Rate I find credible the director’s testimony that the agency’s team provides uniquely tailored instruction to the student based upon observations in conjunction with a review of his IESP, with adjustments to instruction and services where needed. Additionally, the director credibly testified as to the student’s present level of performance as supported by the student’s progress as measured through assessments and meetings with providers and support staff. The Director testified that “[the student] presents with extreme delays in the areas of literacy, receptive and expressive language and attention. He has difficulty staying focused and participating in class lessons. [Student] requires a lot of high motivational materials, prompting and redirection in order to initiate an independent task.”[6] The Director further testified that, “Student has already shown signs of progress with his SETSS service providers. He is adjusting to the new year and is showing a desire to learn and invest effort. However, the Student’s academic and social delays warrant the need for continued services of SETSS 5 times per week in a 1:1 setting for the 2022-2023 school year.”[7] Concerning the appropriateness of the rate charged for services by the agency, I find that the district also failed to come forward with evidence as to the current market rate for either SETSS services or occupational therapy. The educational director credibly testified that the hourly rate SETSS services is $197, inclusive of one-on-one supervision, educational resources and support, professional development and materials for the staff and providers, employment taxes, and administrative and overhead costs for the agency. The SETSS provider is New York State certified to teach students with disabilities.
CONCLUSIONS OF LAW
a) The IDEA (20 U.S.C. §1400-§1482) and New York State Education Law § 3602-c, et seq. (“The Dual Enrollment Statute”)
The IDEA provides that children with disabilities are entitled to a FAPE, consisting of specialized education and related services designed to meet a student’s unique needs,[8] provided in conformity with a comprehensive written IEP.[9]
The mandates of the IDEA are intended to prepare a student for further education, employment, and independent living and ensure that the rights of students with disabilities and parents of such students are protected with respect to the IEP’s creation and implementation.[10] When an IEP is developed within the State of New York, the district must comply with both the procedural requirements mandated by the IDEA and the Education Law of the State of New York, [11] i.e., that its recommended placement and program are reasonably calculated to enable the student to receive educational benefits.[12] This requires that the IEP be comprehensive, consisting of specialized education and related services designed to meet a student’s unique needs.[13]
If a student is parentally enrolled in a nonpublic school, the IDEA does not confer the same entitlement to special education programs and/or related services as if they were enrolled in a public school.[14] In that instance, the IDEA mandates that the school districts must participate in a consultation process to make special education services available to parentally-placed private school children,[15] and authorizes the allocation of “a proportional share of federal IDEA funds to provide special education and related services” to these children with disabilities.[16] These services are commonly referred to as “equitable participation,” and are distinct from the FAPE requirement.[17] In New York, the district is statutorily mandated to offer on an equitable basis programs offered at other public or nonpublic schools in that district as follows,
Boards of education of all school districts of the state shall furnish services to students [with disabilities] who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent or person in parental relation of any such student”…[18] The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.[19]
Offering services on “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... and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”[20] As such, a “nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic [school] student.”[21] Therefore, once such a request is received, the district must “be reviewed by the committee on special education of the school district of location, which shall develop an individualized education service program [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program.”[22]
If a dispute arises between a parent and a school district over the provision of services under an IESP, “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil” via an impartial due process hearing, as called for by the IDEA.[23] Where it is determined that IESP services were not appropriately provided, the New York State Education Law permits an IHO to redress the violation under the same broad authority available for violations of the IDEA.[24] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[25] and damage awards are not available under the IDEA.[26] Thus, the tribunal “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[27] The foregoing criteria are essential in fulfilling the legislative intent of the IDEA that through “personalized instruction with sufficient support services”, the student will derive an educational benefit from that instruction so as “to achieve passing marks and advance grade to grade,”[28] and “enable the [student] to be involved in and make progress in the general education curriculum.”[29] This personalized instruction “must be appropriately ambitious in light of [the student’s] circumstances.”[30] An IESP must also open the door of public education to a disabled child in a meaningful way such that it is like produce progress, “not regression,” or only “trivial advancement.”[31]
Here, the parent seeks to continue SETSS at an enhanced rate in accordance with the 03/25/2019 IESP. However, the IDEA did not contemplate or address such disputes arising from the request for an “enhanced rate” for service providers. As a result, neither the IDEA nor New York State Education Law provides a legal framework within the due process system to afford an equitable remedy to students and parents to resolve enhanced rate disputes.[32] Adding to this anomaly in the law is the fact that here, the enhanced rate for related services is being determined within the context of an IESP, the terms of which are a question of New York State law, not federal.[33] Accordingly, the process to challenge an IESP is governed by Education Law § 3602-c [2][b][1] which provides that a review of an IESP may be sought under Education Law § 4404.[34] There is also little, if any, judicial case law on this issue.
As a result, the New York State Review Office (“SRO”) has addressed this question on numerous occasions by looking to the Burlington/Carter tuition reimbursement approach for guidance,[35] but held that the burden of proof and persuasion remains with the district because to hold otherwise [in the absence of statutory authority or appellate case law], would result in impermissibly shifting to the parent the district’s burden to provide and fund the statutorily mandated services.[36] There is no provision or exception in the Education Law that shifts the burden to the parent in enhanced rate disputes.
To meet its burden of proof, the district must establish that 1) it did not violate the procedural requirements of the IDEA[37]; and 2) that the rates for the services as per an IESP are excessive or otherwise should be reduced,[38] by proffering evidence as to what it believes is an appropriate market rate.[39] Then borrowing from Burlington/Carter, the SROs have held that although the burden of proof and persuasion does not shift to the parent under this scenario, the parent is not “disavowed” of the need to come forward with some evidence and establish that the rate requested is reasonable and appropriate in light of the provider’s certification, experience and education. [40] It has also been determined that it is not unreasonable for the parent to demonstrate a contractual obligation to pay the difference between the scheduled rate for the services and the rate being charged.[41] The contract need not be in writing, but the parent must establish the elements of the oral contract for the services to prevail,[42] and establish that the requested rate was the actual rate charged by an agency [emphasis added][43] as well as verify the number of service hours.[44]
It would be against public policy to either reimburse a parent without proof of payment or directly fund the services when the parent has no obligation to pay for the services. This would be tantamount to unjust enrichment not only in favor of the parent, but also the provider who may be charging an excessive rate that they would not otherwise be qualified to charge. Although the case law is silent on this issue, the State Review Office has denied direct funding and/or reimbursement absent sufficient proof by parents.[45] However, this does not relieve the district from its initial burden of proof.
In the absence of clear guidance, this IHO looks to traditional contract law for guidance. The district, to prevail on defending an enhanced rate claim, needs to establish that the parent or agency was enriched at the district’s expense and that the reimbursement or payment would be against “equity and good conscience” to grant the requested enhanced rate.[46] The district may also prevail if it initially establishes that the parent failed to request services on or before the first day of June preceding the start of the school year for which services are being requested.[47]
ANALYSIS
Here, there is no dispute that the student is entitled to services under Education Law §3602-c. The dispute arises from the following: (a) that the district without justification failed to provided services as per the IESP; and (b) the enhanced hourly rate charged by the agency to provide SETSS is egregious or excessive.
As a matter of law, the district failed on both issues by failing to come forward with sufficient evidence to sustain its burdens of proof.
Here, the district failed to comply with the procedural and substantive requirements of the IDEA and New York State Education Law – it failed to (a) conduct updated observations, and evaluations in all areas of disability (b) implement SETSS per its own recommendation dated 03/25/2019.
It was the district’s burden to establish that the termination of SEIT/SETSS services was justified; the request for services was untimely, and to present evidence of the current market rate for services for SETSS but failed to do so on all accounts. The parent did not have the burden to come forward with evidence to the contrary absent any evidentiary showing by the district. Again, this would impermissibly shift the burden of proof to the parent. Therefore, I hold that district violated the IDEA and Education Law §§ 3602-c and 4404 and the student is entitled to 5 hours per week of SETTS on a 1:1 basis at the requested enhanced rates.
Even though the burden does not shift, the parent demonstrated through the testimony of the educational director, that an award of an enhanced rate would not unjustly enrich either the parent or the agency. The parent offered into evidence the contract with the agency evidencing an unconditional obligation to pay for the services in the event an award by the IHO was denied and a breakdown of the charges which account for the services provided and the agency’s administrative costs associated with doing business as a special education service provider. [48] The District not only failed to present direct evidence on its case in chief, it also failed to offer rebuttal evidence to defeat the parent’s good faith showing of the reasonableness of the enhanced rates. The District also failed to demonstrate that the parent acted unreasonably or failed to cooperate with the CSE. Accordingly, the equities favor an award of an enhanced rate for SETSS to the parent and/or the agency.
ORDER
NOW, it is hereby
ORDERED, that the DOE shall fund Student’s program as per the 3/25/2019 IESP, retroactively to the start of the filling of the DPC on 9/6/2022; and it is further,
ORDERED, that the respondent shall issue Related Service Authorizations and directly fund 2 sessions per week of Individual Speech-Language Therapy, 30 minutes each on a 1:1 basis; 1 session per week of group Speech-Language Therapy, 30 minutes; and 2 sessions per week of Occupational Therapy, 30 minutes each on a 1:1 basis; and it is further
ORDERED, that the respondent shall implement five (5) hours per week of SETSS services within 14 days; and it is further
ORDERED, that the DOE shall directly fund and pay the SETSS provider for the SETSS Services administered to date for the 2022/2023 school year starting from 09/06/ 2022 at an enhanced rate of $197 per hour for SETSS, within 7 days of receipt of invoices or bills for services rendered; and it is further
ORDERED and that should the DOE not provide Student with a SETSS provider within 14 days of this order, the Parent shall procure services with a provider of their choosing and the District shall reimburse and/or directly fund said services, at an amount not to exceed $197/hour; and it is further
Dated: 12/20/2022 SO ORDERED,
___________________________________
Elana Soleimani, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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.
APPENDIX A
Redacted Information
Term Used In FOFD
REDACTED
Student
REDACTED
Parents/Guardians
REDACTED
Parent Attorney/Representative
REDACTED
District Attorney/Representative
REDACTED
Private School
REDACTED
Educational Director of Agency
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’s EXHIBITS
Exhibits
Title
Date
Pages
A Due Process Complaint 09/06/2022 7
B Individualized Education Program [Pre-School] 07/14/2021 15
C Letter to Chairperson June, 2022 1
D Parent Contract 09/02/2022 4
E Occupational Therapist Certificate 03/31/2022 2
F Teacher Certificate Undated 2
G Affidavit in Lieu of Direct Testimony REDACTED 10/27/2022 5 Exhibits
Title
Date
Pages
1
Clarifying email
11/2/2022
2
IHO EXHIBITS
Footnotes
[1] P-A (Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.)
[2] P-H
[3] U.S.C. § 1400 et seq. and 34 C.F.R. § 300 et seq.; New York State Education Law § 3602-c and § 4404 et seq., and 8 NYCRR § 200.5 et seq.
[4] P-B
[5] A child is entitled to remain in his or her placement at public expense during the pendency of a dispute over an IESP, The “pendency” provision of the IDEA requires a school district “to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.” {See, 20 U.S.C. § 1415[j] and Education Law 4404 [4][a]; and see Mackey ex rel. Thomas M. v. Bd. of Educ. for the Arlington Cent. Sch. Dist., 386 F.3d 158, 160 [2d Cir. 2004] and Ventura de Paulino v. New York City Dep’t of Educ., 76 IDELR 173 [2d Cir. 2020] (citing Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 [3d Cir. 1996]}.
[6] P-H (30)
[7] Id. At (36)
[8] U.S.C. § 1400 [d][1][A]
[9] U.S.C. § 1401[9]
[10] 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].
[11] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[12] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[13] C.F.R. § 300.13.
[14] See 34 C.F.R. § 300.137 (a)
[15] See 34 C.F.R. § 300.134.
[16] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at 10 (S.D.N.Y. 2012) (citing J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 665 [S.D.N.Y. 2011] [internal quotation marks omitted]); see also 20 U.S.C. § 1412(a) (10) (A) (i)-(ii); 34 C.F.R. §§ 300.131 – 300.133.
[17] E.T. and D.T. ex rel. E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist.,, supra., at 11 [internal quotations and citations omitted]; c.f. Application of a Student with a Disability, Appeal No. 20-115 [Sept. 3, 2020], p.4 (noting that in a particular case the difference in applying a FAPE standard or an “equitable services standard” is a “distinction without a difference” where N.Y. Educ. Law § 3602-c “has been routinely treated... as providing eligible students with an individual right to special education services that must be tailored to the student’s particular needs by the CSE” that are then protected “through the due process hearing system called for by the IDEA” [internal citations omitted]).
[18] N.Y. Educ. Law § 3602-c(2)(a).
[19] N.Y. Educ. Law § 3602-c (2) (b) (1) (emphasis added). This law is known as the “dual enrollment” statute. See Application of a Student with a Disability, Appeal No. 20-115 (Sept. 3, 2020), p.1.
[20] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1 (September 2007).
[21] Id.
[22] Education Law § 3602-c (2) (b) (1)
[23] Education Law § 3602-c (2) (b) (1); 20 U.S.C. §§ 1221e-3, 1415 (e)-(f); Education Law § 4404 (1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[24] See Application of a Student with a Disability, Appeal No. 20-023 (citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 [D. Conn. 2017]).
[25] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[26] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[27] See Doe v. East Lyme, 790 F.3d at 454.
[28] Id. at p.203.
[29] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 988, 100 [2017]; and See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[30] Id.
[31] See, P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2d Cir. 2008]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [citations omitted].
[32] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[33] Gabel ex rel. L.G. v. Bd. Of Educ., 368 F. Supp. 2d 313, 333 [S.D.N.Y. 2005] (“What the Commissioner's Decision 12,530 makes clear is that no court, including this Court, has jurisdiction over an appeal relating to this issue [reimbursement for related services]. IDEA confers no jurisdiction on this Court because it confers no right of due process review on this issue. State law -- the only law that gives [a student] the right to any due process review of a decision denying related services to a private school student -- provides that an administrative determination after impartial hearing concerning related services is reviewable only by the Commissioner. § 3602-c[2].”
[34] R.G. v. New York City Dep’t of Educ., 585 F.Supp3d 524, 530 [S.D.N.Y. 2022].
[35] Application of a Student with a Disability, Appeal No. 20-115, p9., fn.12, supra
[36] Id. and Application of a Student with a Disability, Appeal No. 21-245; and see Educ. Law § 4404[1][c]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 [2d Cir. 2014].
[37] See, Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 206-07 [1982].
[38] Application of a Student with a Disability, Appeal #21-138 [08/11/21], p.9
[39] Application of a Student with a Disability, Appeal #21-183 [10/29/21], p.19
[40] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[41] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[42] Application of a Student with a Disability, Appeal #20-115 [09/23/20], p.10
[43] Application of a Student with a Disability, Appeal #20-140 [09/23/20], p.14
[44] Application of a Student with a Disability, Appeal #21-245 [02/04/22], p.9
[45] Id., and Application of a Student with a Disability, Appeal #21-068 [04/21/21], p.12
[46] See, Shaya Eidelman v. Sun Prods. Corp., 2022 U.S. App. LEXIS 15480, 2022 *6, WL 1929250 [2d Cir. 2022]
[47] Education Law § 3602-c [2][a] and Decision No. 15.195 [2005] [Office of Counsel [nysed.gov])
[48] P-D