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CASE NUMBER: 581986 – NYC: 233820
FINDINGS OF FACT AND DECISION
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER
against Case # 233820 THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
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 (hereinafter referred to as “the Parent”).
For the Department of Education:
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
List of Terms
SETSS Provider - REDACTED
SETSS Agency – REDACTED
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background
and Procedural History Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 9/7/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year.
During the school year in which Parent filed the DPC, Student was classified with Speech or Language Impairment. A request to amend the DPC was filed on 1/5/2023, which was granted.
The Due Process Hearing (“DPH”) took place on 2/23/2023 3:00:00 PM. Parent introduced documentary evidence and the affidavit testimonies of Parent and SETSS provider. DOE presented documentary evidence, no witnesses, but cross-examined Parent’s witnesses. [1]
III. Finding of Facts and Decision
A. The Amended Due Process Complaint was Vague and Does not State a Claim Challenging the March 2022 IEP
Parent’s Amended DPC alleges that the last IEP developed for Student “that the parent agreed with” was dated 5/22/2019, and that “Parent disputes any subsequent program the DOE developed that removed and/or reduced the services.”[2] There was no indication which IEP Parent challenged, how many IEPs were created after the 5/22/2019, if any, and the specific defects in any subsequent program that Parent disagreed with other than a removal or reduction of services.[3] The thrust of the DPC was Parent’s difficulty in obtaining a SETSS provider.
DOE did not object to the issue of a potential claim that was not raised in the DPC. Parent’s Counsel was in a similar position of (nearly identical) unclarity with respect to his DPC in an unrelated State Appeal No. 22-134 whereby the SRO found that:
“the parent—albeit in vague and imprecise language in the August 2021 due process complaint notice—raised issues with respect to the May 2021 CSE IEP by asserting that she disputed any other program without the same services, because, at the time of the August 2021 due process complaint notice, the May 2021 CPSE and the May 2021 CSE IEPs were the only IEPs developed for the student.” (Emphasis added)
Citing the above State Appeal highlights the problem of boilerplate language that appeared in the current DPC, but the situation in the instant case is distinguishable. In State Appeal No. 22-134 there was clear evidence as to the specific IEPs developed for Student, so the argument was that the vagueness in Parent’s DPC could not have been read as challenging any other IEP; this is the underlying rationale for the SRO’s position in accepting the ‘vague’ language in Parent’s Counsel’s pleadings. Here, the IEP on which Parent relies as the last “agreed upon” is nearly 4 years old, and to suggest that Parent’s sweeping objection to any program developed after a certain date provides sufficient notice to DOE of Parent’s specific claim is untenable without additional evidence as to which IEP Parent was challenging. The confusion persisted during the hearing where DOE’s Attorney referred to the June 1st notification requirements in Education Law 3602-(C) for Parent to seek equitable services, and although DOE’s Attorney was clearly mistaken on the law at issue, the DPC’s language seemed to focus on non-implementation of SETSS services that were purportedly required to be provided.
As a rule, “[w]hen a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51).”[4] The district did not open the door with respect to challenging the 2022 IEP; it merely failed to object to Parent’s vague, and deficient, DPC.
I find that the Parent did not sufficiently plead a challenge to the March 2022 IEP, and therefore will not reach a decision on the merits or consider the March 2022 IEP in arriving at a final decision.
However, I would be remiss if I did not address an issue that might have been problematic to Parent’s potential claim in that there was no evidence that Parent served the DOE with a 10-day notice for the ‘self-help’ parent engaged in by seeking private SETSS. Although the issue of the 2022 IEP is not one to be resolved as I have determined that it was not sufficiently claimed in the DPC, it is important to recognize that the SROs have routinely applied the Burlington/Carter analysis in cases where Parent seeks additional educational and/or related services unilaterally—cases specifically dealing with Parent’s Counsel:
"Parents who are dissatisfied with their child's education can unilaterally change their child's placement . . . and can, for example, pay for 10 private services, including private schooling. They do so, however, at their own financial risk. They can obtain retroactive reimbursement from the school district after the [IESP] dispute is resolved, if they satisfy a three-part test that has come to be known as the BurlingtonCarter test" (Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 526 [2d Cir. 2020] [internal quotations and citations omitted]; see Carter, 510 U.S. at 14 [finding that the "Parents' failure to select a program known to be approved by the State in favor of an unapproved option is not itself a bar to reimbursement."]). [5]
I will note that the instant case deals with a student enrolled in public school, which was not the case with the above State Appeal. Cases of ‘dual enrollment’ under Education Law 3602-(C) present unique challenges, to include whether to apply the Burlington/Carter analysis. An argument could be made that the Burlington/Carter analysis is inapplicable to the provision of related services as they are not ‘tuition’ cases, but it would seem incongruous for a Parent to seek additional educational support for Student without providing the DOE with an opportunity to address Parent’s concerns. This result would allow any Parent to contract for additional services unilaterally, and obligate DOE to pay for them irrespective of District’s potential ability to address a Parent’s claim in the public-school setting. Obviously, the District’s subsequent attempt to ‘cure’ an allegedly deficient IEP would not vitiate a potential claim for a compensatory award that pre-dated the ‘cure’ or additional claims for the denial of a FAPE, but the DOE must be given the opportunity to comply with its statutory obligation to provide Student with a FAPE as the first step.
The SROs have applied 20 U.S.C. § 1412[a][10][C][iii][I] to unilaterally obtained services because the 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." [6]
In addition:
“As for the substantive standard for assessing the services that are unilaterally obtained by a parent, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E., 694 F.3d at 184-85; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]).” [7]
Most Impotently:
“the parent is forewarned and cautioned that going forward… [Parent is not] relieved…of [the] obligation to provide a written ten-day notice to the district of her intent to unilaterally obtain services and seek reimbursement or direct funding from the district.”
Here, there is no allegation of DOE’s failure to provide Parent with the procedural safeguards and there was no 10-day notice.
Nevertheless, based on the hearing record, in the alternative, I would have found that the 2022 IEP was procedurally & substantively appropriate.
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.[8] 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. [9]
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.[10] "[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."[11] 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."[12]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[13] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[14] 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. [15] An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[16] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[17] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[18] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[19] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[20] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[21] 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.'"[22] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[23] and designed to be provided in the least restrictive environment (“LRE”).[24] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[25] 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[26] through the use of appropriate special education services.[27] 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."[28] There were no allegations of any DOE procedural violations. The substantive allegations in the DPC mix different—and seemingly unrelated—claims with a conclusory assumption that SETSS should have been provided, and that the Parent was unable to locate providers. As stated above, this is the danger of Parent’s Counsel using boilerplate language that appeared to be identical to other similar DPCs demanding equitable services under Education Law 3602-(C) where the Parent alleges non-implementation of a services plan. Parent had the opportunity to flesh-out additional claims in her subsequent amended DPC, but the only new information in that amendment added that Student was losing her hearing. At the time the amendment was granted, this fact was relevant for a determination on the issue of FAPE, and the merits of this new information needed to be addressed at the hearing. During the CSE meeting Parent did not raise any objections to the March 2022 IEP with respect to the removal of SETSS at any point, and she only “expressed concern regarding [Student’s] articulation skills and overall intelligibility.”[29] Although DOE bears the burden of production and persuasion to show that the IEP was appropriate for Student, it would be imprudent to require the DOE to show that Student did not require SETSS to meet its burden especially since the undersigned IHO must reach a decision on substantive grounds. DOE’s failure to call witnesses does not necessarily mean that it could not meet its burden as the SROs have determined that they “…cannot generally endorse the [] findings on the issue of the district's obligation to produce a witness…and the [IEP] document speaks for itself.” [30] In addition, Parent’s testimony that she had informed Student’s teacher in November 2022 that Student was losing her hearing has no apparent nexus to the alleged requirement of SETSS and the inability of Parent to locate providers; this is especially troublesome when the precise services provided under SETSS to Student are nebulous, lack specificity, and the use of the term “SETSS” in Hearings has been routinely addressed by the SROs[31] as problematic:
“It is noted that SETSS is not defined in the State continuum of special education services (see 8 NYCRR 200.6). As has been laid out in prior administrative proceedings, a static and reliable definition of "SETSS" does not exist, and unless the parties and the hearing officer take the time to develop a record on the topic it becomes problematic (see Application of the Dep't of Educ., Appeal No. 20-125). For example, SETSS has been described in a prior proceeding as "a flexible hybrid service combining Consultant Teacher and Resource Room Service" that was instituted under a temporary innovative program waiver to support a student "in the general education classroom" (Application of a Student with a Disability, Appeal No. 16-056), and in another proceeding it was suggested that SETSS was more of an a la carte service that is completely disconnected from supporting the student in a general education classroom setting (Application of a Student with a Disability, Appeal No. 19-047). In this matter, the student received 1:1 academic instruction in the teacher's home (Tr. pp. 155, 157, 162-66, 173). By no means should the district infer the undersigned's concession to clarity as acceptance of the ill-defined term. The district has previously been warned that this administrative tribunal will not make assumptions or take judicial notice of the meaning of the local term or favor one party over another as to its meaning (Application of a Student with a Disability, Appeal No. 22-012).”
There is also insufficient evidence as to what steps the CSE took, should have taken, or failed to take, following the notification of Student’s audiological challenges, and Parent testified that a CSE meeting was scheduled for March 2023 to develop a new IEP for Student without asserting that the CSE should have acted sooner or differently. [32]
Finally, even if the CSE were notified of Student’s hearing loss, the CSE would have needed additional time for testing and creation of an intervention plan to address Student’s specific needs, and to expect immediate action from DOE does not seem practicable. This is a ripeness issue that was not fully developed during the hearing, and the fact that this matter was no addressed in the DPH by either Party is further indicative of the deficiencies in the DPCs to assert a claim that is justiciable with the necessary, minimal, pleading requirements in IDEA cases.
The DOE is required to demonstrate that the program that it had developed for Student was appropriate at the time it created the IEP in light of Student’s needs and based on the testimony and evidence at hearing I find that the DOE has met its burden. To reiterate, School districts are not required to "maximize" the potential of students with disabilities, [33] 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.'"[34] Student was making progress in all her courses, and although Parent might have wished additional supports to maximize Student’s potential, that standard has been specifically rejected by the courts, and is not a requirement for the provision of a FAPE. Finally, although I found Parent’s testimony credible, to include her statements related to potential gradeinflation at the school, there was insufficient evidence as to whether this issue was a factor in a FAPE denial, and I find that the DOE provided Student with a FAPE.
B. Pendency
Attorney for Parent alleges that the last “agreed” upon IEP was the one dated 5/22/2019. A prior FOFD was issued on June 29, 2022, in Case #215283, whereby IHO Judith Schneider awarded Student 7 hours per week of SETSS for the 2021-2022 school year in conformity with the 2019 IEP. It appears that the last implemented IEP is the one dated 3/25/2022.[35] Although IHO Schneider’s FOFD is dated 3 months after the March IEP, IHO Schneider only addressed challenges to the 2021-2022 school year. There are no indications that the March 2022 IEP was ever introduced into that hearing record, considered, and, more importantly, was not challenged
Parent’s Counsel had a similar argument in the same State Appeal referenced above (No. 22-134) where the “last agreed” upon IEP was the standard he used to determine pendency. The SRO disagreed and opined that:
“such an argument would necessitate placing a preference on the student's "last agreed-upon IEP" over the placement described in the student's most recently implemented IEP. However, as noted above, a student's then-current educational placement has not been so defined by the courts as a one-size-fits-all "last agreedupon IEP" test. Here, the IHO relied upon specific language for the test from Mackey and its progeny in the Second Circuit to determine that the student's December 2021 CSE IEP—as the placement described in the most recently implemented IEP—formed the basis for the student's pendency placement.”
Nevertheless, the DOE did not argue that the March 2022 IEP formed the basis of Pendency on the theory that it was implemented. In addition, a pendency determination must take place before substantive, merits, questions, and whether the March 2022 IEP provided Student with a FAPE is irrelevant for purposes of the ‘stay-put’ provisions of the IDEA.
As such, I accept Parent’s assertion that the 2019 IEP and 2022 FOFD from IHO Schneider formed the basis of Pendency and find that Student was entitled to the 7 hours of weekly SETSS from the date of the filing of the DPC until the conclusion of these proceedings.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that Student’s Pendency lies in the FOFD dated June 29, 2022, in Case
#215283 issued by IHO Judith Schneider, and that DOE shall fund, within 14 days of the date of this order, 7 hours of weekly SETSS from the date of the filing of the DPC until the conclusion of these proceedings, to be provided by a provider of Parent’s choosing, at a rate not to exceed $150 per hour.
DATED: SO ORDERED
03/03/2023
Dr. Oren Varnai, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
PARENT EXHIBITS
A. Impartial Hearing Request September 6, 2022 6 pages
B. Amended Impartial Hearing Request January 5 2023 2 pages
C. Individualized Education Program May 22 2019 21 pages
D. Teacher’s Certification Undated 1 page
E. Quarterly Progress Report November 15, 202 November 2022 3 pages
F. Agency’s Contract September 1, 2022 1 page
G. Affidavit of SETSS Provider January 13, 2023 1 page
H. Affidavit of Parent February 16, 2023 1 page
I. Audiologic Report J. Findings of Fact and Decision June 29, 10 November 28, 2022 2022 1 page
DOE’S EXHIBITS
1. Individual Education Plan 3/25/22 15 pages DOE
2. Prior Written Notice 3/25/22 9 pages DOE
3. Classroom Observation 3/10/21 1 page DOE
4. Speech Language Therapy Referral 9/23/22 1 page DOE
5. Report Cards – Terms 1-4 21-22; Term 1 22-23 12/12/22 4 pages DOE
IHO’S EXHIBITS
I. None None None
Footnotes
[1] A transcript of the proceedings was unavailable at the time of the drafting of the FOFD. A certified copy of the transcript will be incorporated into the record upon receipt.
[2] Ex. P-A1.
[3] Id.
[4] State Appeal No. 22-136, at 16.
[6] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[7] State Appeal 22-024.
[8] 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].
[9] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[10] 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].
[11] 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].
[12] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[13] R.E., 694 F.3d at 190-91.
[14] 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].
[15] 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.
[16] 20 U.S.C. § 1415[f][3][E][i].
[17] Rowley, 458 U.S. at 203.
[18] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[19] Endrew F., 137 S. Ct. at 1001.
[20] 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.
[21] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[22] 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].
[23] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[24] 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.
[25] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[26] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[27] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[28] Endrew F., 137 S. Ct. at 1000.
[29] Ex. DOE-1-14.
[30] State Appeal No. 22024, FN 5.
[31] See State Appeal No. 22-024, FN 2, among many such decisions.
[32] Based on the Parties’ representations of an imminent CSE meeting, the undersigned IHO will not order one.
[33] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[34] 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].
[35] Ex. DOE-1.