New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 587353 - NYC: 238671

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 27, 2023

For the Student:

REDACTED (“Parents’ Counsel”), REDACTED (“Father/Parent”), REDACTED (“Service Provider Administrator”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC") originally filed on September 19, 2022, (Ex. i).^[2] In the DPC, the Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2022-23 school year. (Ex. i; A).

I was appointed on December 18, 2022. On December 22, 2022, the parties appeared virtually for a pre-hearing conference (“PHC”). Pendency was raised in this matter (Ex. i-1; A-2) and Parents submitted a proposed pendency form with the original DPC (Ex. i-3). Parents contend that pendency lies in the student’s individualized education program (“IEP”) from 6/23/22. (Ex. i-3). At the PHC, the DOE indicated that pendency was not disputed and that they would execute the Parents’ pendency form. (See PHC Transcript, p. 4). At the PHC, the parties jointly requested and were granted two extensions to bring the case into compliance. (See PHC Transcript, p. 9-10; Orders of Extension). A hearing date was set for January 25, 2023, with disclosures due on January 18.

On January 19, Parents’ Counsel requested an adjournment of the hearing so that he could amend the DPC. (See Adjournment Request). The DOE did not object and the adjournment was granted. On January 28, 2023, Parents’ Counsel submitted an amended DPC (“ADPC”) (Ex. A). On January 30, a status conference was held. (See SC Transcript 1.30.23). At that time, the DOE indicated that they had no objection to the ADPC, and it was accepted. (Id.). Also at that time, a hearing date was set for March 27, 2023, with disclosures due on March 20. (Id.).

On March 27, 2023, the virtual hearing was held. It was a closed hearing. DOE Representative and Parents’ Counsel were both present, as was the student’s father (hereafter “Parent”). The DOE admitted nine exhibits without objection (1-9) and presented no witnesses. (Tr. 6-7).^[3] Parents’ Counsel entered seven exhibits (A-D and J-L)^[4] into evidence without objection, including one direct testimony affidavit. (Tr. 7-8). The Parents’ first witness (Service Provider Administrator) gave direct testimony by affidavit (Ex. J) and appeared live for cross-examination. Parents’ second witness (Parent) gave live testimony. The parties gave oral closing arguments on the record. (Tr. 39-45). At the DPH, Parents’ Counsel indicated that the pendency form had not been executed and requested that the final order include a pendency order. (Tr. 1-13). The DOE Representative agreed that the student’s pendency program lies in the 6/23/22 IEP and did not object to a pendency order being included in the final order. (Tr. 12-13). The record was closed on April 6, after receipt of the transcript.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.

BACKGROUND

The student is currently classified as a student with “other health impairment.” (Ex. 1-1). The student is now [REDACTED] years old and is in kindergarten. (Ex. 1-1; A-1). The student exhibits difficulty with impulsivity, following orders, oppositional, attention-seeking, and/or aggressive behaviors, a short attention-span, and social deficits. (Ex. 1-1-2; Tr. 26-27). The DOE held a review meeting of the committee on special education (“CSE”) and developed a turning-five IEP for the 2022-23 10-month school year on May 10, 2022, which recommended an integrated co-teaching (“ICT”) class with a full-time behavior support paraprofessional and counseling (“CO”) (two 30-minute sessions per week in a group of two) for the 10-month school year. (Ex. 1-12-13). The DOE held a review meeting of the committee on preschool special education (“CPSE”) and developed a preschool IEP for the summer of 2022 on June 23, 2022. (Ex. 8-1). The 6/23/22 summer preschool IEP recommended 10 hours per week of SEIT services (in a group of two) and CO (two 30-minute sessions per week in a group of two) for July and August 2022. (Ex. 8-1, 12). Parents contend that the 6/23/22 summer preschool IEP was appropriate but that the 5/10/22 kindergarten IEP (which had a later implementation date despite being developed first) was not, due to the lack of necessary SEIT/SETSS services.^[5] (Tr. 41-42). The DPC additionally alleges that the DOE failed to offer the student a placement to implement the 5/10/22 kindergarten IEP and that the Parents were unable to locate providers willing to work at the DOE’s standard rates. (Ex. A-1-2). The Parents request a pendency order and direct funding for ten hours per week of SETSS^[6] by the Parents’ chosen service provider (“Service Provider”), at an enhanced rate^[7] for the entirety of the 2022-23 10-month school year. (Ex. A-2; Tr. 10-12). ^[8]

ISSUES

At the hearing, the DOE conceded that 1) they were not defending the provision of a FAPE to the student for the 2022-23 10-month school year, and 2) that the 6/23/22 preschool IEP contains the student’s pendency program. (Tr. 9, 12-13). The DOE argued at the hearing that all requested relief should be denied because the Parents had not met their “Prong 2” burden of showing that the student’s unilateral placement was uniquely designed to meet his unique needs. (Tr. 39-41). They further argued that the student’s unilaterally placed SETSS are not appropriate because his main issue is behavior. (Tr. 40-41). Finally, the DOE argued that the contract between Parents and the Service Provider is legally deficient. (Tr. 40). Accordingly, the issues in dispute are the appropriateness of the unilateral placement, any equitable considerations, and the appropriate remedies.

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact. 9 The DOE has essentially conceded a denial of a FAPE for the 2022-23 10-month school year. (Tr. 9). The student here has a diagnosis of Attention Deficit Hyperactivity Disorder (“ADHD”). (Ex. 1-4). His socialemotional skills are underdeveloped for his age. (Ex. K-2; 9-4). The student can be oppositional and can exhibit aggressive behaviors in school. (Ex. K-1; 4-8). According to the student’s SEIT/SETSS provider for the last two years (“Individual Provider”), the student’s cognitive skills are within normal limits “given 1:1 assistance and positive reinforcement for appropriate behavior during class activities.” (Ex. K-1). According to the student’s teachers and service providers, he needs a 12-month program in order to prevent substantial regression and maintain his skills. (Ex. 9-1-2, 3, 6, 8).

At least one of the Parents were present at both the relevant IEP meetings (5/10/22 and 6/23/22). (Ex. 1-18; 8-3). The 5/10/22 IEP recommended an ICT10 class with CO (2x30x2) and a full-time behavior support paraprofessional for the 10-month school year. (Ex. 1-12-13). The 5/10/22 IEP was developed for the student’s kindergarten year and was designed to be implemented in September of 2022. (Ex. 1-1). The 6/23/22 preschool IEP recommended SEIT services (10x60x2) and CO (2x30x2). (Ex. 8-1, 12). The 6/23/22 preschool IEP was developed for July and August of 2022 only, prior to the student’s start in kindergarten. (Ex. 8-1). Only the 5/10/22 kindergarten IEP and the student’s program and services beginning in September of 2022 are in dispute in this case.

It appears that both the preschool and kindergarten IEPs were based on the same evaluative data.11 There was no testimony at the hearing explaining the change in program recommendations between May and June of 2022. However, the 5/10/22 kindergarten IEP indicates that the CSE rejected SETSS in favor of a behavioral paraprofessional because the student “requires a lot of prompting, redirection and individual assistance in his classroom throughout the school day in order to achieve his goals.” (Ex. 1-18; 2-2). Additionally, the 3/23/22 Classroom Observation indicates that the Individual Provider felt that the student would “need the support of a behavior para in Kindergarten.” (Ex. 6-2). The 3/21/22 Social

9 The facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well. 10 The student attended an ICT class the previous school year as well (Ex. 6-1) and the Parents have not challenged the appropriateness of the ICT recommendation, so it will not be discussed further in this decision. The only portion of the program at issue is the student’s related services and behavioral supports. 11 There is no evidence in the record showing that any additional evaluations were done between the 5/10/22 and 6/23/22 IEP meetings. According to the Prior Written Notice (“PWN”) from the 5/10/22 IEP, it was based on the student’s 3/23/22 Classroom Observation (Ex. 6), 3/21/22 Social History (Ex. 7), 4/24/22 CO Progress Report (Ex. 9), 2/25/22 Teacher Report (Ex. 9-3-5), 11/1/21 Functional Behavior Analysis (“FBA”) (Ex. 4), and 11/18/21 Behavioral Intervention Plan (“BIP”) (Ex. 5). (Ex. 2-2). There are additional teacher reports contained in the DOE’s Exhibit 9 which detail the student’s regression and need for 12-month services (Ex. 9-1-2, 6, 8), but these are not mentioned in the PWN (Ex. 2-2). The PWN from the 6/23/22 preschool IEP is not completed, so it does not indicate what evaluative material was considered. (Ex. 8-17-19). The face of the 5/10/22 IEP additionally mentions Wechsler Preschool and Primary Scale of Intelligence (WPPSI-IV) test results that are not mentioned on the PWN. (Ex. 1-1). The same WPPSI-IV test results are quoted in the 6/23/22 preschool IEP, as are the FBA/BIP. (Ex. 8-4-5, 6-7; 4; 5). History Update (which is generally filled out by one or both parents) also indicates that the student would need a 1:1 paraprofessional for the following school year. (Ex. 7-1, 7). According to the student’s counselor, he needs “continued supervision to effectively participate in classroom activities with his peers in order to keep [the student] and his peers safe.” (Ex. 9-7). The student’s aggressive behaviors can include violence towards other students, such as pushing or throwing chairs and “hurting them, sometimes seemingly unprovoked.” (Ex. 8-5; 4-2; 1-2). Some of the other students in his class are afraid to play with him, “for fear of harm.” (Ex. 1-2). His impulsive behaviors sometimes result in the student hurting himself as well. (Ex. 6-2).

The student’s impulsivity, difficulty following orders, oppositional and attention-seeking behaviors, and emotional dysregulation impact his ability to learn. (Tr. 26-27; Ex. 1-4). The Parent believes that the student would be better able to control these issues with the help of his SETSS provider than he would with a behavior support paraprofessional. (Tr. 31, 37). Parent testified that the basis for this belief is his knowledge of the student’s personality, the student’s rapport with the Individual Provider, and the provider’s special education training. (Tr. 31, 37). According to the Parent, the Individual Provider’s work with the student is mainly behavior-based but she does not just provide redirection, she also uses her training to suggest appropriate strategies. (Tr. 28-29).

Although the Parents are now contesting the program contained in the 5/10/22 kindergarten IEP, the IEP itself indicates that the Parents agreed with the recommended program at the time of the CSE meeting (Ex. 1-1, 4) and there was no testimony to the contrary. Furthermore, based on the Social History Update, at least one of the Parents was in favor of the change to a paraprofessional for kindergarten in March of 2022. (Ex. 7-1, 7). The Social History Update asks, “What services do you think the student will need in September?” and the Parents’ handwritten answer is, “1:1 para.” (Ex. 7-7).

Although the ADPC alleges that the DOE failed to offer a placement to the student (Ex. A-1-2), I do not credit that assertion. The record contains a school location letter dated 6/17/22, 12 which indicates the public school that would implement the student’s 5/10/22 kindergarten IEP (“Public School Placement”) along with contact information on how to arrange a visit. (Ex. 3-2). There was no testimony that Parents did not receive the school location letter or that their address had recently changed. There is no evidence in the record that the Parents contacted or visited the Public School Placement. There is no evidence in the record that the Parents notified the DOE of their rejection of the proposed placement or intention to enroll the student in private services and seek reimbursement, either at one of the IEP meetings or by letter prior to the student’s removal. Parents ultimately placed the student in a private school (the “Parochial School”) for the 2022-23 10-month school year. (Ex. A-2).

The ADPC alleges that the DOE offered no providers to implement the student’s SEIT services for the 10-month school year and that Parents were unable to find one willing to work at the DOE’s standard rates. (Ex. A-2). There was no testimony as to what efforts were made to find a suitable provider. It appears that Parents simply continued services with the same Service Provider from the previous school year (who is now calling the identical service SETSS rather than SEIT services) (Tr. 24).

12 Without evidence to the contrary, this document will be given the presumption of valid service. The address on the school location letter is the same as that on the 6/23/22 preschool IEP, of which Parents implicitly acknowledge receipt. (Compare Ex. 3-5 with 8-2). Furthermore, at the start of the school year in September, the student’s current IEP did not contain SEIT or SETSS services, so the DOE would have been under no obligation to implement them.

It was clear at the hearing that the Parent’s main concern for the current school year’s program was that the student to continue working with the same Individual Provider from the previous school year. When asked, prior to September what his thoughts were on the services the student should be receiving this year, the Parent testified, “ I was hoping, I was hoping that he can continue with [Individual Provider].” (Tr. 30). When asked whether he considered any other service than SETSS for the student’s kindergarten year, the Parent testified, “No. We were, I mean, I believe the Department of Ed had a different suggestion, but I was very focused on, on the SEIT for a multitude of reasons.” (Tr. 36).

Ultimately, the Parents contracted with the Service Provider to provide SETSS for the student for the 2022-23 10-month school year. (Ex. C; J). The contract was executed on July 1, 2022. (Ex. C-1). The contract itself contains no provisions specific to this student. (See Ex. C; Tr. 18)(“this contract is a general contract for all students”). The only specific information relating to this student is the student’s name and date of birth and the Parent’s name. (Ex. C-1). While the contract does indicate that the services provided will be SETSS, it does not indicate the amount of SETSS to be provided or the rate for those services. (Ex. C). The contract states that the Service Provider:

provides SEIT/SETSS services at enhanced market rates. Pursuant to this Parent Agreement, the Parent agrees that the hours and rates for such services are reflected in the invoices being processed. The invoices stem from and are in accordance with this Parent Agreement. If the DOE is ordered or agrees to pay for services during Pendency, [Service Provider] will attempt to bill the DOE directly at the same time, the Parent acknowledges and agrees that the Parent is contracting for these services with [Service Provider]. As such, responsibility ultimately rests with the Parent for payment of the difference between [Service Provider’s] Pendency Rate and the DOE rate if [Service Provider] does not receive full payment from the DOE for these services. All invoices must be paid in full ninety (90) days after receipt. (Ex. C-2-3). At the hearing, the Service Provider Administrator testified that, at the time the contract was signed, the Parent was aware that they would be providing ten hours per week of SETSS at an hourly rate of $195. (Tr. 23). However, it was unclear from the testimony whether the Service Provider Administrator understood the question or instead was just iterating the rate charged, rather than what the Parent’s understanding was. The testimony was as follows: Q: Okay. I know that you said that you determined the rate for the services. Is that relayed to the Parent at the time the contract is signed or not?

A: Yeah. Q: But, it's not included in the terms of the contract.

A: It's included. Q: Okay. Can you -- A: I'm not try-, I'm not ma-, I'm not sure I understand the question. Q: I'm asking if the Parent is informed of what the rate is going to be for services at the time that the Parent agreement was signed.

A: Yes. Q: And, what was the rate that was relayed to the Parents in this case?

A: The rate is 195 per hour of SETSS. (Tr. 23). Because the final answer was “the rate is 195” rather than anything regarding what Parents were told and given the uncertainty of his answers immediately preceding that (including misstating^[13] that the rate is included in the contract), I do not find the Service Provider Administrator’s testimony reliable in this respect. Additionally, Parent testified that he thought the contract was for 10 hours of SETSS per week and that he believed he was financially obligated to pay, but he did not indicate any knowledge of the hourly rate for the services. (Tr. 32). Ultimately, I did not find the Service Provider Administrator to be a reliable witness. First, he made clear that he was not familiar with any aspect of the student’s services, other than the contract and invoicing. (Tr. 15-22). At hearing, Service Provider Administrator testified that he had no involvement in the onboarding process for students (Tr. 15), had no involvement in determining the type or amount of services provided (Tr. 16, 19), is not involved in the scheduling and had no knowledge of it (Tr. 16), had not been present during any of the student’s services (Tr. 17), had never spoken to the Individual Provider regarding the services (Tr. 17), was not familiar with the student’s IEP and did not review it prior to signing the contract (Tr. 19), and was not familiar with the student’s school of attendance (Tr. 20). It is particularly noteworthy that he was not familiar with the IEP and had not reviewed it prior to the contract being signed, because that calls into question the testimony regarding any oral agreement or understanding about what services would be provided under the contract. Second, although the Service Provider Administrator’s only involvement with the student was related to the contract and billing, he did not seem knowledgeable about the contract’s terms. When asked whether the contract contained any information about the frequency and duration of services, he testified that those are determined by the student’s IEP or IESP and the contract is general, “[s]o, it will not mention the exact number, but it will probably mention that the number base, which it says on the IEP or IESP. But I have to read it through to see.” (Tr. 18) (emphasis added). Finally, the Service Provider Administrator frequently seemed to have a hard time hearing or understanding what was being asked and had to request that questions be repeated or rephrased several times. (Tr. 16, 17, 21, 23). Because the Service Provider Administrator was not a credible witness, the best evidence in the record regarding the terms of the contract is the contract itself, and my analysis thereof will be based on the terms of the written contract (Ex. C) and the invoices in evidence (Ex. B).

The Parent has not received any invoices from the Service Provider for the current school year. (Tr. 23-24). The invoices are held until after the conclusion of the due process hearing. (Tr. 23-24). The date on all the invoices in evidence is 1/31/23. (Ex. B-1-4). The “Rate Per Session” and “Total Amount Due” fields of each invoice in the record remain blank. (Ex. B-1-4).

The invoices reflect the amount of services the student actually received, which could vary depending on illness or school breaks. (Tr. 22). According to the invoices in evidence, the student’s services started on 9/8/22, and he received 26 hours of SETSS in September (four hours the week of 9/5, ten hours the week of 9/12, six hours the week of 9/19, and six hours the week of 9/26), 16 hours in October (two hours the week of 10/3, zero hours the week of 10/10, six hours the week of 10/17, six hours the week of 10/24, and two hours on 10/31), 22 hours in November (six hours the week of 11/1, four hours the week of 11/7, six hours the week of 11/14, zero hours the week of 11/21, and six hours the week of 11/28), and 34 hours in December (two hours the week of 12/1, ten hours the week of 12/5, eight hours the week of 12/12, six hours the week of 12/19, and eight hours the week of 12/26). (Ex. B-1-4). The record contains no invoices for services provided after December. It is unclear from the record why the student did not receive the full ten hours per week of SETSS that the Service Provider was asked to provide.

The Service Provider did not make an independent assessment of what services the student needs. (Tr. 18-19)(“This is based on a [sic] IEP or IESP” and “[Service Provider] cannot determine the weekly hours. It’s based on the IEP or IESP”).^[14] According to Service Provider Administrator, the Service Provider just provides the level of SEIT/SETSS from the IEP of the parent’s choosing (even if that is not the current IEP for the student) without making their own decisions about the appropriate services. (Tr. 22-23). The student’s SETSS services are being provided by one provider (“Individual Provider”), who is a certified special education teacher licensed to teach students up to grade 6. (Ex. D-1; B; J-2). The Individual Provider has worked with the student since the previous school year. (Tr. 30-31). The Individual Provider provides the student’s SETSS services in school, usually in the mornings. (Tr. 33-34). The Individual Provider communicates with the Parents regularly. (Tr. 34-35). According to the Parent, the Individual Provider has been “extremely” effective in her work with the student. (Tr. 29). However, there is conflicting evidence elsewhere in the record regarding the student’s progress with his SETSS provider. For example, in her 2/25/22 Teacher Report, the Individual Provider indicates that progress had been made towards the annual goals, but that the student had not yet re-attained the progress he had achieved before the winter break due to regression. (Ex. 9-3, 5). The 5/10/22 IEP indicates that the student is frequently removed from the classroom due to inappropriate behaviors, but that with his SEIT services he “has shown the ability to respond well to consistent positive reinforcement for appropriate behavior [and] understands what is required of him and the consequences for inappropriate behavior when presented by the SEIT.” (Ex. 1-2; 9-2). The 3/21/22 Social History Update indicates that the student has been better with his SEIT. (Ex. 7-3, 6). The 4/7/22 report from the student’s classroom teacher indicates that when his SEIT services were provided consistently, there was “some progress” in the student’s behavior, but it also states that “after even a period of a few days without SEIT services, either due to a school break, or the SEIT is out sick, [the student’s] behavior shows extreme regression.” (Ex. 9-6). Although those documents are all from the previous school year, since the Individual Provider has been the same for both years, I believe they still have some (although limited) relevance to demonstrating current progress.

The most recent documentary accounts of the student’s behavioral progress (or lack thereof) are the 6/23/22 preschool IEP (Ex. 8) and the Individual Provider’s 1/18/23 annual review (Ex. K). The 6/23/22 preschool IEP indicates that, during his 2022 summer program, the student’s inappropriate behaviors escalated and became “more severe – including aggression, high levels of activity and selfdirected behaviors.” (Ex. 8-5). Even with the SEIT support during his summer program, there were still incidents of the student throwing chairs (Ex. 8-5), although it is unclear whether that happened during the hours in which the Individual Provider was present. The Individual Provider’s update from January 2023 indicates that with her help the student had less frequent incidents of violent behaviors but that “[h]itting or kicking other children has occurred.” (Ex. K-1). It also states that the student “has made minimal progress on his current IEP goal due to ongoing social/emotional/behavioral concerns that occur frequently in each area of development throughout the school day.” (Ex. K-1-2).

The Services Provider’s hourly SETSS rate is based on their “projected costs.”^[15] (Ex. J-2). The Individual Provider is paid $75.00 per hour for her services, and the additional $120.00 per hour charged by the Service Provider covers “related budgeted expenses including supervisory support for the child, case management support, professional development workshops for the provider, instructional materials for the educational program, assessment tools for the provider, online software access, and other administrative costs.” (Ex. J-2). There was no testimony regarding any supervisory or case management support, instructional or assessment materials, or other administrative costs relevant to this particular student’s services. The Service Provider does offer SETSS in a group of two, for which they charge the same hourly rate as for individual SETSS. (Tr. 24). There is no indication in the record whether the student is receiving individual or group SETSS.

The student’s father’s taxable income is less than $[REDACTED] per year. (Ex. L-1). There is no evidence in the record of the mother’s income. ^[16]

LEGAL FRAMEWORK

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). The IEP must be reviewed at least annually, 34 C.F.R. §300.324(b)(1)(i), and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year, 8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010). For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Further, under caselaw, failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).

A board of education may be required to pay for educational services obtained unilaterally by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions (“prongs”) constitute the Burlington/Carter test.

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)(“[Parents] need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”). Educational progress can be a factor weighing in favor of the appropriateness of a unilateral placement. Frank G., 459 F.3d at 365. To qualify for reimbursement under the IDEA, parents need not show that the unilateral placement is perfect or that it meets all state educational standards. Id. at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

The IDEA permits awards of direct payment to unilateral placement providers where the parents have not yet made payments but are legally obligated to do so. See Mr. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427 (S.D.N.Y. 2011). Under Burlington/Carter, if the parents are financially obligated to pay for the contracted services and have met their Prong 2 burden, the contract must be fully reimbursed or directly funded by the District unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (“Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable”); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”). Pursuant to 34 C.F.R. §300.148(d)(1), the cost of reimbursement may be reduced or denied if (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section. See also 20 U.S.C. § 1412(a)(10)(C)(iii)(I).While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 3/14/23) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 9/23/13) and Mr. & Mrs. A. ex rel. D.A. v. N.Y.C. Dep’t of Educ., 769 F. Supp. 2d at 428.

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral private placement has the burdens of production and persuasion on the appropriateness of such placement. NYS Educ. Law §4404(1)(c).

DUAL ENROLLMENT

Pursuant to New York’s “dual enrollment” statute, Educ. Law §3602-c, New York State resident nonpublic school students are entitled to an IESP developed by the school district where the nonpublic school is located and the IESP must be developed in the same manner and with the same content as an IEP. The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 CFR 300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. Educ. Law §3602-c(2). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." Educ. Law §3602-c(2)(b)(l).

PENDENCY

The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.^[17] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. ^[18]

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.^[19] Although not defined by statute, the phrase “then current placement” has been found to mean either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”); (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP. ^[20] Courts have generally agreed that a student’s “then-current educational placement” refers to a student’s last-agreed-upon educational program (and services) before the parent requested the due process hearing. ^[21]

The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed”^[22] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.”^[23] However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement.^[24] The regulations provide that an SRO decision that “agrees with the parents that a change of placement is appropriate . . . must be treated as such an agreement.”^[25] Similarly, an agreement is implied by law where an unappealed FOFD from an IHO finds that a unilateral placement is appropriate. ^[26]

PENDENCY

Under the IDEA, the pendency inquiry focuses on identifying the student's then-current educational placement.^[27] In light of the parties’ agreement, I find that the 6/23/22 preschool IEP constitutes the student’s last-agreed upon program, and therefore serves as the student’s stay-put entitlement for the pendency of this matter.

ANALYSIS AND CONCLUSIONS OF LAW

This case is more complicated that it might appear. First, although this case involves a student privately enrolled in a nonpublic school whose Parent is seeking educational services for their child, there is no evidence in the record regarding a June 1 request for equitable services. Nor did the DOE raise this issue as a defense. Rather, this case involves the rejection of an IEP, so it is actually an IDEA case, even though the requested remedies mirror an equitable services case.

Although the Parents are not seeking reimbursement for the student’s private school placement, this is still a case where they rejected an IEP and then unilaterally chose a service provider and are seeking direct payment of privately obtained services. Accordingly, in terms of legal framework I believe this situation is analogous to a tuition reimbursement case; the District can be made to pay for special education services that a parent has paid or become legally obligated to pay, even though the District would not have been able to contract for such services directly. See Application of a Student with a Disability, Appeal Nos. 21-119; 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087. Accordingly, I will utilize the three-prong Burlington/Carter analysis.

Prong 1

As for Prong 1, the District has essentially conceded that they failed to offer the student a FAPE. In declining to defend the provision of a FAPE, the DOE failed to present any witnesses to provide a cogent or responsive explanation for why the CSE came to a different conclusion from the CPSE as to what the student’s appropriate educational program and services should be, even though they appear to have both used the same evaluative data. Furthermore, the DOE’s declination to defend their case implicates issues of fairness and surprise, as it is possible that Parents’ Counsel would have presented different testimony if they had known that the provision of a FAPE was still at issue. Accordingly, I feel constrained to find that the DOE failed to meet its Prong 1 burden.

I note, however, that there is a considerable amount of evidence in the record to not only support the program decisions made in the 5/10/22 kindergarten IEP, but also to suggest that its recommended program was more appropriate for the student that that contained in the 6/23/22 preschool IEP. The student’s main issues are behavioral in nature, and he demonstrates interfering behaviors throughout the school day. Additionally, the student’s behavior presents a safety issue for himself and his fellow students at times. Thus, it is reasonable to conclude that having the full day support of a behavioral paraprofessional would not only be more effective than only two hours a day of SETSS services, but also appropriate to meet the student’s uncontested needs. Furthermore, since the student’s deficits are not academic in nature, there is no basis for a certified special education teacher as his behavioral support.

According to the documents in evidence, at least one of the Parents and even the student’s own SEIT provider believed last spring that he would need a behavioral paraprofessional going into kindergarten. So, while I can appreciate the Parents’ current desire to continue with the SEIT provider who is known to the student, I do not feel that warranted a continuation of part time SEIT/SETSS rather than a full-time paraprofessional, especially since there is no guarantee in either program that the student would maintain the same individual provider. The provision of a FAPE does not require “everything that might be thought desirable by loving parents.”

Based on the evidence before me, the only necessary recommendation that the 5/10/22 kindergarten IEP seems to be lacking is the provision of extended school year (“ESY”) services. This is not a live issue for the 2022-23 school year because the student received summer services under the 6/23/22 preschool IEP and the contested (5/10/22) IEP was not implemented until September. The issue of whether the CSE denied the student a FAPE by failing to recommend ESY services is not yet ripe as the CSE had no obligation to duplicate the ESY recommendation for the summer of 2022, and whether the student requires ESY for the upcoming summer is to be determined in the IEP or IESP developed for the upcoming school year.

Again, since the DOE had the burden of proof and made a direct concession, I feel constrained to rule for the Parents on Prong 1. However, for the reasons stated above, had the DOE defended the provision of a FAPE there is evidence to suggest that they may have prevailed.

Prong 2

As for Prong 2, I find that the Parents have not met their burden. At the hearing, the District did not contest the qualifications of the Service Provider to provide the contracted services. Furthermore, the District did not object to the qualifications of the Individual Provider, and I find that they are appropriately qualified to provide the relevant services. However, the DOE disputed the appropriateness of the SETSS services in general. Here, the DOE argued that the contracted program (10 weekly hours of SETSS) was inappropriate because it was not uniquely designed to meet the student’s need, which were largely behavioral. I agree. Here, the testimony was clear that the Service Provider does no testing or evaluations at all to make their own clinical determination of the student’s service needs. There is no indication in the record that the student’s SETSS services have been uniquely tailored to meet his needs. Nor is there any indication in the record that the SETSS provider is implementing the student’s BIP. Instead of basing their program on the student’s individual needs, the Service Provider has abdicated any programming decisions in favor of accepting a parent’s preferred IEP (no matter how old and/or inappropriate it might be). The Service Provider’s approach is essentially a one size fits all service without consideration of the individual student’s needs. That model really does not comport with the purposes of the IDEA, which envisions programs and services uniquely tailored to meet a student’s specific needs.

Parents did not offer testimony from the Individual Provider to make up for these deficiencies. According to the documentary evidence, the Individual Provider agreed with the CSE that the student would need the support of a behavioral paraprofessional in kindergarten. The student’s need for full time behavioral support is well documented in the record, including his engagement in aggressive and/or disruptive behaviors throughout the school day and the fact that, without full time support, he can be a danger to himself or others. The record shows that, even with SEIT/SETSS support, the student was/is still engaging in aggressive and violent behaviors. Additionally, I do not find the Parent’s testimony regarding progress to be persuasive, as the Parent is not present with the student at school to see his behavior. According to the Individual Provider’s most-recent update, the student “has made minimal progress on his current IEP goal due to ongoing social/emotional/behavioral concerns that occur frequently in each area of development throughout the school day.” (Ex. K-1-2)(emphasis added). While a continuation of services from the same Individual Provider known to the student may be what his loving parents would prefer, that is not what the IDEA requires. For all these reasons, I find that the ten weekly hours of group SETSS were not uniquely designed to meet the student’s needs, nor has he made meaningful progress with those services.

Moreover, there is evidence in the record that the services actually provided do not even match the mandate from the 6/23/22 preschool IEP on which they are supposedly based. According to the record, the student has not gotten the 10 hours of SETSS per week that should have been provided. In fact, he has received significantly less. There were only two weeks between the beginning of the school year in September and the end of December^[28] where the student received the full ten hours. Some of that may be due to school breaks, but not all. This is especially concerning given the evidence in the record that the student exhibits serious behavioral regression after even a few days without his SETSS services, and sometimes even after weekends. For all these reasons, the Parent has failed to meet their burden of proving that “the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo, 489 F.3d at 112. Accordingly, they have not met their Prong 2 burden and all relief outside of pendency must be denied.

Prong 3 - Equities

Even if Parents had met their Prong 2 burden, I would deny the requested relief on equitable (Prong 3) grounds. The Parents participated in the relevant CSE meetings. However, there are significant equitable considerations that weigh against them. The record contains no evidence that they provided the DOE with proper or timely notice of their rejection of the 5/10/22 IEP or their intention to place the student unilaterally and seek reimbursement. In fact, it appears that they agreed with the recommended program at the 5/10/22 CSE meeting. There is no Ten-Day letter in evidence, nor was there any testimony that one was sent. Additionally, there is no indication that the Parents advised the DOE at the 6/23/22 CPSE meeting for the student’s summer program that they were intending to reject the 5/10/22 IEP which was, at that time, already in place for implementation in September. Furthermore, there is no indication in the record that Parents attempted to visit the proposed placement school to see whether it was appropriate for the student. From the record, it appears that the first notice given by the Parents was the filing of the DPC on September 19, 2022, which was after the school year and the private services had begun. Moreover, Parents signed the contract with the Service Provider on July 1, 2022. So, it is clear that they intended to reject the 5/10/22 IEP even before the 12-month school year began and there are no extenuating circumstances in the record to excuse their failure to timely notify the DOE.

There is also a question of the Parents’ financial obligation to pay and the reasonableness of the rates. The DOE argued in summation that the service contract is deficient for several reasons, including that it does not include the frequency or rate of services or a total estimated cost for the year. (Tr. 40). Parents’ Counsel alternatively argued in summation that the DOE’s concerns were “nitpicking.” (Tr. 42). I agree with the DOE that the documents in evidence do not support a financial obligation on the part of the Parents. The contract is silent as to the number of hours of SETSS to be provided to the student. Additionally, the contract does not contain any hourly rate or estimated costs. Instead of specifying an hourly rate, the contract references the invoices (that did not yet exist at the time of the contract’s execution) as the sole indication of the rate. At the time of the hearing, no invoices had been presented to the Parents, and those in evidence appear to have been prepared solely for the purpose of litigation since they were all prepared on the same day immediately after this hearing date was set. Furthermore, the invoices themselves do not contain either the hourly rate, the rate per session, or the total amount due. Although the contract has some language about the Parent’s responsibility to pay the “difference between [Service Provider’s] Pendency Rate and the DOE rate if [Service Provider] does not receive full payment from the DOE for these services,” that language is only in reference to pendency services and similar language is not included for services outside the context of pendency. For all these reasons, I find that the record is not sufficient to establish a financial obligation on the part of the Parents, and even more so fail to establish an obligation for them to pay the requested rate of $195 per hour.

I also find that the requested rate is objectively unreasonable. Here, the Individual Provider is only paid $75 per hour, and the Service Provider is charging 260% of that amount for individual SETSS and 520% of that amount for SETSS in a group of two (which is what the student should have been provided under the 6/23/22 preschool IEP). While it is reasonable to include some overhead costs in the total rate, this amount is extremely excessive. That is especially true given that 1) there is no evidence in the record that this particular student received the benefit of the stated overhead costs such as supervisory or case management support, instructional materials, or assessments; and (2) since the student’s services were provided at his school, there was no use of office space to provide his services. Moreover, the record does not support the conclusion that the requested rate is consistent with fair market rates in New York City, especially as to the group SETSS. For all these reasons, I find that even if the Parent had met their Prong 2 burden, and even if the equities were in their favor in all other respects, the requested relief would still have warranted reduction due to the unreasonableness of the requested rates.

Given the DOE’s lack of objection, at the request of Parents’ Counsel, the claim regarding the provision of counseling services is dismissed without prejudice. I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:

1. The New York City Department of Education shall provide during the pendency of this matter, retroactive to the filing date of the DPC (9/19/22) up to the date of this decision, the following program and related services in according with the student’s 6/23/22 preschool IEP: a) SETSS, 29 10 hours per week in a group of two at a childcare location of the Parent’s choosing; and b) Counseling, two 30-minute sessions per week in a group of two at an early childhood program of the Parent’s choosing; and

2. All remaining claims raised by Parents are dismissed with prejudice, with the exception of the claim regarding the provision of counseling services, which is dismissed without prejudice.

SO ORDERED.

DATED: April 07, 2023 Leah Martin, Esq._(Signed Electronically)_

Impartial Hearing Officer

29 The 6/23/22 preschool IEP mandates SEIT services rather than SETSS, but as the student is now six years old, SETSS is the appropriate school-aged equivalent. See 8 NYCRR §§200.16(e)(3) and 200.6.

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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Amended Impartial Hearing Request 01/28/23 3 pages

B. Time Sheets various 4 pages

C. Parent Agreement 07/01/22 3 pages

D. List of Provider’s Certifications 03/20/23 2 pages

J. Affidavit of Service Provider Administrator 01/18/23 2 pages

K. Annual Review 01/18/23 2 pages

L. Form 1040 2021 2 pages

DOE’S EXHIBITS

1. Individualized Education Program (IEP) 05/10/22 19 pages DOE

2. Prior Written Notice Package 06/05/22 4 pages DOE

3. Turning [REDACTED] School Location Letter 06/17/22 5 pages DOE

4. Preschool FBA 11/01/21 8 pages DOE

5. Preschool BIP 11/18/21 3 pages DOE

6. Classroom Observation 03/23/22 3 pages DOE

7. Social History Update 03/21/22 8 pages DOE

8. CPSE IEP 06/23/22 June 2022 19 pages DOE

9. Turning 5 Counseling and SEIT Reports April 2022 8 pages DOE

IHO’S EXHIBITS

i. Original DPC 9/19/22 6 pages

Footnotes

[2] Exhibits shall be referred to as follows: Ex., followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). A copy of the original DPC is included here as IHO Exhibit i to complete the record.

[3] The hearing transcript will be referred to as Tr., followed by the page number in the transcript.

[4] Parents’ disclosures contained twelve exhibits (A-L), but their proposed exhibits D through I were duplicates of DOE Exhibits already in evidence, so they were not admitted with the agreement of both parties. (Tr. 7-8).

[5] The Parents dispute the removal of SEIT services from the student’s IEP but have requested Special Education Teacher Support Services (“SETSS”) in their place, since they are essentially the same service but for school-aged children. (Tr. 12, 24). Accordingly, references to SEIT and SETSS may be used interchangeably throughout the record.

[6] The DPC does not specify individual or group SETSS.

[7] Parents’ Counsel did not specify the enhanced rate they were requesting in either the DPC (Ex. i), the ADPC (Ex. A), or in their opening or closing statements at the hearing.

[8] Although the DPC also requests related service authorizations or direct funding for the mandated CO, Parents’ Counsel stated at the hearing that they were seeking to withdraw this issue without prejudice. (Tr. 46). The DOE did not object. (Tr. 46).

[13] The rate clearly does not appear on the face of the contract (Ex. C), and he testified previously that there was no information in the contract pertaining to this individual student other than the names and date of birth (Tr. 18).

[14] Although I have found this witness to have limited credibility, there are many relevant facts for which there is no other evidence in the record. In those cases, I have no other choice than to rely on the Service Provider Administrator’s testimony.

[15] Although elsewhere in his affidavit, the Service Provider Administrator states that the rates are “based on market rates, and consideration of our costs,” that seems to be contradicted by the following paragraph, which confirms that the rate is based more on projected costs than any consideration of market rate. (Ex. J-2). Additionally, no information was given as to what the market rates are, how the Service Provider compares to market rates, or how information was gathered about market rates.

[16] The Parents are divorced. (Tr. 35).

[17] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.

[18] Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see, Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].

[19] Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906.

[20] Dervishi v. Stamford Bd. of Educ., 653 Fed. Appx 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014][holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987].

[21] See Dervishi, 653 Fed. Appx. at 57-58; Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71.

[22] Concerned Parents, 629 F.2d at 753, 756.

[23] T.M., 752 F.3d at 171.

[24] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].

[25] See 34 C.F.R. § 300.514(a) and (c); Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004].

[26] See Bd. of Educ. v. Schutz, 290 F.3d 476,103 LRP 37743 (2d Cir. 2002); Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 52 IDELR 1 (9th Cir. 2009); St. Tammany Parish Sch. Bd. v. State of Louisiana, 142 F.3d 776, 28 IDELR 194 (5th Cir. 1998); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 24 IDELR 839 (3d Cir. 1996).

[27] Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906.

[28] Parent offered no evidence of the amount of services provided in the last three months.