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CASE NUMBER NYC: 233931
FINDINGS OF FACT AND DECISION
Student’s Name1: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: NYC
Hearing Requested by: Parent(s)
Request Date/Date Complaint Filed: 9/7/2022
Date(s) of Hearing: 4/20/2023, 5/11/2023, 5/15/2023
Actual Record Closed Date: 5/15/2023
Date of Decision: 5/18/2023
Hearing Officer: Teril Holston, Esq.
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 4/20/2023
For the Student:
None
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/11/2023
For the Student:
[REDACTED]
[REDACTED], Parent [REDACTED], Parent
For the Department of Education:
[REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/15/2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, a [REDACTED] -year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On September 7, 2022, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school years, in that the District failed to develop an IEP program that was reasonably calculated to confer an educational benefit (P-A) [2]. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2022-2023 school year, door-to-door special education transportation, and reimbursement for breakfast and lunch (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the school year at issue, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parent.
PROCEDURAL HISTORY
On September 27, 2022, the IHO 1 was appointed to conduct an impartial hearing.[3] On September 29, 2022, IHO 1 issued an interim decision denying consolidation with another matter (IHO-
1. On October 14, 2022, IHO 1’s appointment was rescinded due to his unforeseen death. On October 19, 2022, the undersigned was appointed to conduct an impartial hearing. On November 18, 2022, December 20, 2022, February 7, 2023, and March 16, 2023, status conferences were held. On February 21, 2023, the virtual pendency hearing was held.
On May 11, 2023, the virtual impartial hearing on the merits of the DPC commenced and concluded on May 15, 2023. It was a closed hearing and the record closed on May 15, 2023.
At the hearing, the District’s representative failed to present any documentary evidence and did not call any witnesses, in support of its case.
The Parent, through their attorney, submitted to documents (Ex. P-A though P-M),[4] including the affidavit testimony of the parent, the Clinical Director of the Private School, and the neuropsychologist, in support of the Parent’s case. The District objected to Exhibits P-C and P-D. All of the documents, excluding Exhibit P-C, were admitted to evidence. The parent rested and both parties gave closing statements.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.[5] et seq.
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations5:
The student was a [REDACTED] -year-old [REDACTED] th grader at Private School on the date of the hearing, identified by the DOE as a student with a Learning Emotional Disturbance (P-G). The student has a long history of anxiety and panic attacks which prevented her from attending school (P-G; P-J).
The student has been diagnosed with Autism Spectrum Disorder, Requiring support for social communication and restricted, repetitive behaviors (Level 1), Without accompanying intellectual impairment, Without accompanying language impairment and Unspecified Anxiety Disorder (P-G).
The CSE convened on May 20, 2022, and recommended an ICT placement and counseling four times per week (P-M).[6] During the IEP meeting, the parent requested a deferral to CBST to consider a private school placement to provide the small class setting with supports to address the students concerns (Id.). The parent was informed that such a deferral was not warranted (Id). The parent then received a placement at Public High School for the student (Id). The parent attempted to arrange a tour but were only permitted to speak with a representative by phone, where they learned that the school counselors “lacked training in psychology” and were “not trained to recognize anxiety triggers” (Id.).
On June 17, 2022, the parent provided written notice of their intention to place the student at Private School (P-E). Private School is a small, specialized school serving students in grades 8 through 12, utilizing personalized instruction, an intensive advising program, therapeutic support and collaboration with families and treatment teams (P-K). During the 2022-2023 school year, the school had approximately 80 students and 18 teachers (P-K). The average class size is 5-10 students, resulting in a 4:1 class ratio (Id.). The student’s class sizes range from 4-11 students (P-K). The student meets with her advisors 3 times per day. The student has made substantial progress in the Private School (P-K; P-M).
The parent signed an enrollment contract with Private School for the 2022-2023 academic school year on June 17, 2022, at the cost of $79,900; $36,000 of which the parent has already paid (P-H; P-I). The parent testified that they cannot afford to pay the tuition and await reimbursement, as they are already awaiting reimbursement for monies paid during prior years (See Transcript).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[7] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[8] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[9] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. [10]
The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [11]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[12] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[13] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[14]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.[15]
Special education services must be provided by the district in conformity with the student's IEP.[16] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.[17]
However, school districts are not required to "maximize" the potential of students with disabilities18, but must 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.
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement21. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
ANALYSIS
A. Prong I: FAPE
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no documentary evidence or witnesses. The District offered no explanation as to how the CSE made its recommendation or how its evaluation appropriately describes the Student. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating the 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”. Endrew F., 137 S.Ct. at 1002. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the school year at issue. 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 FAPE for school years at issue (P-F, see also P-G; P-K; P-L; P-M). Although not the Parent’s obligation, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[22]
18 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
19 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
20 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
21 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].
B. Unilateral Placement
In this case, as the District did not offer the student a FAPE for the school year at issue, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[23] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[24] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.[25]
A private school placement must be “proper under the Act”26, i.e., the private school must provide an educational program which meets the student's special education needs.[27] 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.[28] The private school need not employ certified special education teachers or have its own IEP for the student.[29] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“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,
26 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370 supported by such services as are necessary to permit the child to benefit from instruction.”30
Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.31
a. Student Needs
In this case, the Parent submitted two neuropsychological evaluations, as well as the affidavit testimony of the Private School Clinical Director and parent, detailing the student’s needs (See Generally, P-F; P-G; P-K; P-L; P-M).
b. Program
The Private School is a private, specialized high school program utilizing small class sizes and therapeutic support (P-K). The student received intensive advising support including a morning meeting to ensure she is prepared for the day, a midmorning meeting utilizing Dialectical Behavior Therapy to structure her day, and a check out at the end of the day to address the student’s executive functioning challenges (P-K). Further the student has weekly meetings to review her performance in her classes (Id). The student benefits from on-demand use of the Counseling Center when needed throughout the school day (P-K). The student further receives 1:1 support from the Learning Specialist to address her academic needs (Id.).
c. Progress
With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.[32] Here the parent and Clinical detailed the progress that she has seen in the student since
30 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65. 31 see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010]
[finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 attending the Private School (P-K; P-M). The student’s attendance and class participation has significantly improved since attending the Private School (P-K). The student has missed only 10 days of school due to her anxiety, compared to 50 absences during her last year in public school (P-J).
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2022-2023 school year as required.
The weight of the evidence demonstrates that the 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."[33] Of note, the District offered no persuasive arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.
C. Equitable Considerations
Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”[34]
“With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]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"]). Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such 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."[35] 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."[36] 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.[37] Parents of students enrolled in private school are not exempted from 10-day notice requirements. [38] The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"[39] However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.[40] In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022 (P-B). Therein, the parent detailed their specific concerns with the recommendations and provided notice of their intention to unilaterally place the student (Id.). There is nothing in the hearing record to demonstrate that the District responded to the parent’s request other than an automatic email receipt (PE).
By way of relief, Parent seeks direct funding and tuition reimbursement for the fees already paid to the Private School. The record establishes that Parent incurred an obligation to pay the Private School (P-H; P-I; P-K; P-M). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents 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”). I find that the unilateral tuition costs are extensive and may exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC. Equity demands that the DOE fund the student’s Private School tuition to the extent that the parent was unable to do so in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2022-2023 school year (P-H; P-I).
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following
findings:
• The District failed to provide the student with a FAPE during the 2022-2023 school year.
• The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and direct funding for the 2022-2023 school year.
• The student is entitled to special education transportation to and from school.
• The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year and reimburse parents for all tuition and fees paid with 30 calendar days of this Order, with the total amount not to exceed $79,900;
IT IS FURTHER, ORDERED, that the New York City Department of Education shall provide special education transportation to and from school.
DATED: SO, ORDERED
5/18/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
5/18/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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IHO I Interim Order on Consolidation 9/29/2022 3
Footnotes
[2] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[3] All information is upon information and belief, after review of hearing record developed by IHO 1.
[4] A more detailed list of exhibits is attached.
[5] Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.
[6] Although referenced in the due process complaint, an IEP was not entered into evidence.
[7] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[8] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[9] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[10] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[11] 20 U.S.C. § 1415[f][3][E][i].
[12] Rowley, 458 U.S. at 203.
[13] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[14] Id.
[15] See, Walzczak, supra; Id., Appeal No. 00-005.
[16] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[17] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[22] Rowley, 458 U.S. at 203.
[23] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[24] Id.; see Gagliardo, 489 F.3d at 115.
[25] 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[27] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[28] Carter, 510 U.S. at 14
[29] Id.
[32] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)
[33] Frank G., 459 F.3d at 364.
[34] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[35] 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[36] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[37] 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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[38] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[39] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[40] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)