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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
Program Coordinator – REDACTED
Private School – REDACTED
School Psychologist – REDACTED
Assistant Principal – REDACTED
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 FINDINGS OF FACT AND DECISION
against Case # 239519 THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
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
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 9/29/2022, 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 years.
During the school year in which Parent filed the DPC, Student was classified with Other Health Impairment.
The Due Process Hearing (“DPH”) took place on 2/13/2023. Parent submitted documentary evidence, and the affidavit testimony of Parent and Private School Program Coordinator. DOE presented documentary evidence, conducted no cross-examination of Parent’s witnesses. DOE offered the live witness testimony of School Psychologist and Assistant Principal. During the DPH, DOE’s Attorney acknowledged[1] that she received the Prehearing Conference Summary and Order dated 1/13/2023, and that paragraph 8 of the Order directed the parties to submit testimony of any proposed witnesses via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. In addition, pursuant to paragraph 22 of the PHC Summary and Order, any objections to the Order were to be made to the undersigned IHO within 10 calendar days of the Order’s issuance. DOE also did not submit a witness list, or the general thrust of any testimony. Parent’s Attorney objected to the late submission of the required witness affidavits[2] and also asserted prejudice of DOE’s witnesses having access to the Parent’s witnesses’ affidavits prior to the hearing. DOE acknowledged that its proposed witnesses did, in fact, have access to Parent’s witness affidavits prior to the hearing.[3] DOE’s Attorney acknowledged that “I understand that without [Parent] having access to my witness's testimony that does seem unfair.”[4] IHO determined that to allow the DOE to present the live testimony would be prejudicial to the Parent, and that the DOE did not comply with the PHC Summary and Order. Therefore, the live testimony was excluded.
Despite precluding DOE’s witnesses from providing live testimony having determined that to allow the testimony would prejudice the Parent’s case, and because of DOE’s noncompliance with the[5] business day disclosure requirement under IHO’s PHC Summary and Order, IHO permitted 5 DOE to submit—post-hearing—the affidavit testimony of DOE’s witnesses by 5:00 PM on 2/21/2023, and for Parent’s Attorney’s rebuttal affidavit testimony to DOE’s affidavits, if any, by 5:00 PM on 3/2/2023, in order to preserve DOE’s position for the record in the event of an appeal to the Office of State Review. On 2/17/2023, DOE’s Attorney sent an email indicating that “[t]he District has determined that it will rest on the record, and no additional documentary evidence (apart from the written closing brief) will be put forth in this case.”[6] The Parties agreed to submit written closing statements by 3/13/2023 and are incorporated into the record as exhibits IHO I and IHO II.
Despite DOE’s obligation to submit a Due Process Response (“DPR”) (in the absence of a Prior Written Notice) to the DPC pursuant to 8 NYCRR 200.5[i][4], and the requirement to do the same pursuant to paragraph 13 of the PHC Summary and Order, DOE did not submit a DPR.
III. Finding of Facts and Decision
A. The DOE Deprived Student of a FAPE for the 2022-2023, 10-month, School Year (Burlington/Carter Prong I)
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.[7] 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. [8]
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.[9] "[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."[10] 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."[11]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[12] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[13] 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. [14]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[15] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[16] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[17] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[18] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[19] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[20] 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.'"[21]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[22] and designed to be provided in the least restrictive environment (“LRE”).[23] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[24] 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[25] through the use of appropriate special education services.[26] 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."[27]
None of Parent’s procedural allegations in the DPC were rebutted by DOE, and therefore will be accepted as true. In addition, a review of the IEP offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that 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.” [28]
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at hearing. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 10-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE.
B. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[29] This means that the private school must offer an educational program which met the student's special education needs.[30] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[31] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" [32]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and when determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[33] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [34]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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, supported by such services as are necessary to permit the child to benefit from instruction. [35]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was appropriate and conducted no cross-examination of Parent’s witnesses. Private School Program Coordinator testified via affidavit[36] that she is familiar with Student, and Student’s needs, placed Student in a classroom that would address those needs, and described the services Student was receiving at the Private School. Parent submitted Private School’s report card, 37 Private School enrollment contract, 38 Private School schedule,[39] and Private School program description.[40] I find the testimony credible, and that the Private School provided Student with instruction specially designed to meet Student’s unique needs.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that 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." [41]
C. The Equities Favor the Parent (Burlington/Carter Prong III)
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[42] In making that equitable determination, a hearing officer may consider many factors, including,
37 Ex. J.
38 Ex. P-E. inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [43]
Here, Parent provided the necessary Ten-Days’ Notice[44] of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns, whereby Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.
By way of relief, Parent seeks reimbursement of Private School tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and 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.” As Parent does not seek direct funding, or provided evidence of inability to pay, reimbursement is the appropriate remedy. The tuition at the Private School is $67,850.00.[45] Equity demands that the DOE reimburse Parent for the tuition at Private School tuition for the 2022-2023, 10-month, school year.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement, and direct funding.
D. Transportation
1. The DPC Does not Allege a Claim for Transportation
Under the IDEA, transportation and any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services.[46] New York State Education Law[47] defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." [48]. Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.[49] If the provision of FAPE is dependent on the transportation as a related service, then the CSE must ensure that the student receives the necessary transportation at public expense.[50] An IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate."[51] “Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” [52]
Although Parent’s Attorney indicated during the DPH that Parent was seeking reimbursement for transportation,[53] the DPC does not allege that Student has been deprived of publicly provided transportation, or that Parent sought reimbursement for transportation costs. Parent did include in her disclosure the TDN[54] to the CSE chairperson indicating that, in addition to unilaterally placing Student in Private School, Parent was seeking “transportation services to the private school in accordance with §4402 of New York State Education law. The parents will request that the child be bussed to the private school commencing on the first day of classes.”[55] Although it could be argued that Parent’s disclosures could substitute for the obligation to assert the claim in the DPC, this is not the legal standard. Even if the DOE were on notice of the claim in Parent’s disclosure, there would be no time for DOE to prepare for defending the claim at hearing as DOE’s own disclosures would have already been submitted in this case. The DPC is the operative document that DOE is required to defend, and absent a specific claim therein, the DOE cannot be said to be on sufficient notice to properly litigate the issue.
The fact that the request for busing was included in Parent’s disclosure, and tangentially mentioned at the DPH, does not obviate Parent’s responsibility to allege such claim and any associated relief in the DPC. 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).”[56] DOE did not open the door with respect to transportation, and there was no discussion on the merits of transportation at the DPH.
2. There is no Evidence of Parent’s Obligation to Pay for Private Transportation
Even if the DPC alleged a claim in the DPC for transportation, Parent’s purported claim would have been denied on other grounds. Private School enrollment contract[57] was accompanied by an affidavit from the Private School Business Manager,[58] and both documents indicate that the Private School Tuition is $67,850. A provision in the enrollment contract reads that “[i]f a child has additional needs that were not presented at the time of [the] application process the school reserves the right to bill for additional support services that may be necessary,”[59] but there were no additional documents presented. A separate affidavit from the Business Manager[60] reads that that the “total contracted annual busing rate…is $6,000,”[61] but there are no indications that the busing contract between the Private School and an unnamed provider is part and parcel of the tuition agreement or a requirement. The busing expense affidavits indicates that that “[a]attached is a copy of the entire busing agreement signed by the parent” but no such document is part of the record. Parent’s Attorney referred to the busing affidavit on the record as part of the requested relief, but no other supporting document.[62] It seems clear that tuition and busing were separately contracted.
3. Conclusion
I find that Parent did not sufficiently plead a challenge the related service of transportation, that there is also no evidence that transportation services and costs were part of Student’s enrollment contract; the absence of a contract between Parent and the Private School and/or a transportation company fails to demonstrate an obligation to pay. Therefore, I find that a request for transportation reimbursement is not sufficiently pled in the DPC or sufficiently supported by the evidence in the record, and the request is denied.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY:
ORDERED that DOE shall reimburse Parent for tuition at Private School for the 2022-2023, 10-month, school year, in an amount not to exceed $67,850.00, within 14 days of presentation of receipts.
DATED: SO ORDERED
March 15, 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 Date Title
No. of Pages
Exhibit
P-A. Impartial Hearing Request 9/29/2022 5 pages
P-B. Notice of Unilateral Placement 8/22/2022 3 pages
P-C. Neuropsychological Evaluation 12/14/2018 36 pages
P-D. Neuropsychological Evaluation Update 6/3/2020 29 pages
P-E. Enrollment Contract 2/5/2022 3 pages
P-F. Tuition Affidavit 9/12/2022 1 page
P-G. Transportation Affidavit 9/12/2022 1 page
P-H. Class Schedule 2022-2023 2 pages
P-I. Private School Program Description Undated 1 page
P-J. Trimester 1 Report Card 2022-2023 8 pages
P-K. Affidavit of Program Coordinator 2/6/2023 11 pages
P-L. Affidavit of Parent DOE Date Title No. of Pages 2/6/2023 4 pages
Exhibit
DOE-1 5/24/2022 Individualized Education Program (IEP) 24
DOE-2 5/24/2022 IEP Meeting Minutes 1
DOE-3 8/2/2022 Prior Written Notice 6
DOE-4 8/2/2022 School Location Letter 4
DOE-5 6/3/2020 Neuropsychological Evaluation 29
DOE-6 5/3/2022 Psychoeducational Evaluation Report 7
DOE-7 5/3/2022 Social History Update 2
DOE-8 9/14/2020 Private School Speech & Language Evaluation Scores 1
DOE-9 2021-2022 Private School Grade 5 Trimester 1 Report Card 7
IHO Date Title
No. of Pages
Exhibit
IHO I 3/13/2023 DOE’s Closing 7
IHO II 3/13/2023 Parent’s Closing 15
IHO III 2/17/2023 Email Correspondence from DOE to IHO 6
Footnotes
[1] Tr. p.10-14.
[2] Tr. p. 18.
[3] Tr. p. 27.
[4] Tr. p.31.
[5] Tr. p. 34.
[6] Ex. IHO III.
[7] 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].
[8] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[9] 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].
[10] 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].
[11] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[12] R.E., 694 F.3d at 190-91.
[13] 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].
[14] 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.
[15] 20 U.S.C. § 1415[f][3][E][i].
[16] Rowley, 458 U.S. at 203.
[17] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[18] Endrew F., 137 S. Ct. at 1001.
[19] 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.
[20] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[21] 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].
[22] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[23] 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.
[24] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[25] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[26] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[27] Endrew F., 137 S. Ct. at 1000.
[28] Endrew F., 137 S. Ct. at 1002.
[29] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[30] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[31] Gagliardo, 489 F.3d at 112.
[32] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[33] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[34] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[35] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[36] Ex. P-K.
[39] Ex. P-H.
[40] Ex. P-I.
[41] Frank G., 459 F.3d at 364.
[42] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[43] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[44] Ex. P-B.
[45] Ex. P-E; P-F.
[46] 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16].
[47] Educ. Law §§ 4401[1]; 4402[4][a].
[48] State Appeal No. 21-057; Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
[50] Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww].
[51] ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[52] State Appeal No. 21-057 citing Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997].
[53] Tr. p.44.
[54] Ex. P-B1.
[55] Ex. P-B2.
[56] State Appeal No. 22-136, at 16.
[57] Ex. P-E.
[58] Ex. P-F.
[59] Ex. P-E1 para 5.
[60] Ex. P-G.
[61] Id.
[62] Tr. p.44.