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AMENDED FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
April 27, 2023
none
NAMES AND TITLES OF PERSONS WHO APPEARED
May 18, 2023
For the Student:
[REDACTED], Esq.
Witness:
[REDACTED] Parent
For the Department of Education:
[REDACTED], Esq.
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent 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 October 19, 2022, Petitioner 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 year, in that the District failed to convene a CSE meeting or implement the recommendations of the student’s May 25, 2021, preschool IEP (P-
A) [1]. On March 3, 2023, the DPC was amended to further allege that the District failed to implement the student’s June 15, 2021 (P-A). As a remedy, the Petitioner is seeking direct payment to the providers at a reasonable market rate and compensatory services for any periods not provided during the current school year (Id.).
In light of the foregoing and as more fully discussed below, I find that the DOE failed to meet its burden that it offered the student FAPE for the 2022-2023 school year and the parent is entitled to relief.
PROCEDURAL HISTORY
On January 3, 2023, the undersigned was appointed to conduct an impartial hearing. On January 25, 2023, a settlement conference was held with the parties and another IHO.
Parties agreed to submit memoranda of law in support of their positions (IHO-I; IHO-II; IHO-III). On April 27, 2023, the virtual impartial hearing on the merits of the DPC was scheduled but adjourned. The hearing commenced and concluded on May 18, 2023. It was a closed hearing and the record closed on June 16, 2023.
At the hearing, the District’s representative presented no documentary evidence and did not call any witnesses, in support of its case. The District gave a brief opening statement indicating that the District had no case to present but the parent was not entitled to relief.
The Parent, through their attorney, submitted documents (Ex. P-A though P-I),[2] including the affidavit testimony of the parent, the Program Supervisor of the agency, and the Financial Administrator, in support of the Parent’s case. All of the documents were entered into evidence without objection. The parent rested and both parties gave brief 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 determinations:
The student is a [REDACTED]-year-old classified by the CSE as student with a Learning Disability (P-B). On June 15, 2021, the CSE convened and recommended Special Education Teacher Support Services (SETSS), four periods per week, Direct Service, Group; Speech— Language Therapy, 2x30:1; Occupational Therapy 2x30:1, and Physical Therapy 2x30:1 (id). The IESP fails to explain how the services would be provided to the student (P-B).
The parent testified, via affidavit, that he believed the student’s IESP recommended services are necessary for the student to meet their academic goals and maintain the mainstream placement (P-E). The parent provided Ten-Days’ Notice on October 19, 2022, the same date as the original filing (P-A; P-C).
The parent was unable to find a SETSS provider for the student at the DOE publicized rate and the District did not provide one (P-D). The District also did not provide a speech therapist (P-D). The parent sought out a private agency to implement the SETSS but not the Speech—Language Therapy in November 2022 (P-D; P-E; P-F; P-G). The provider had been providing only 3 hours of SETSS pursuant to a prior IESP. The student’s SETSS provider is qualified and the student has been making progress (P-H; P-I).
The Financial Administrator testified, via affidavit, that the agency provides SETSS at the rate of $195 per hour (P-F). It would pose a financial hardship for the parent to pay for the services and await reimbursement (P-D). Further, the provider creates goals and monitors the student’s progress (P-E; P-H). Despite making progress, the student still requires SETSS weekly (Id.).
PENDENCY
The parents requested an interim order on pendency seeking enforcement of the student’s “stay-put” rights during the pendency of the case (P-A).
The IDEA and New York State Education Law require that a student remain in his or her 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.[3] 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. [4]
Here, the parent presented the June 15, 2021, IESP mandating Special Education Teacher Support Services (SETSS), four periods per week, Direct Service, Group; Speech—Language Therapy, 2x30:1; Occupational Therapy 2x30:1, and Physical Therapy 2x30:1, as the currently agreed upon placement. The District did not oppose pendency during the hearing yet had not consented to provide the student’s services as detailed in the June 15, 2021, IESP. Therefore, the student is entitled to pendency as requested by the parent.
APPLICABLE LEGAL STANDARD
FAPE
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[5] 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.”[6] 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.”[7] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. [8]
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 [9]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[10] “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.”[11] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student. [12] Privately Placed/ Homeschooled Students
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). However, 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 NY State law, parents of a disabled student who have privately placed their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location 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. [13]
The implementation of IESP services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent." [14]
In these instances, the Committee on Special Education (“CSE”) of the district where the nonpublic school is located must review the request for services and “develop an individualized education service program [“IESP”] for the student based on the student's individual needs in the same manner and with the same contents as an [“IEP”]” (Educ. Law § 3602-c (2)(b)(1)). The CSE “shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (id.). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to the student in conformity with the IESP (Educ. Law§ 3602c(2)(a), (b)(l). In failing to do so, the DOE failed to provide the student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
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 placement [15]. Accordingly, the district bears the burden here. [16]
DISCUSSION
As a preliminary matter, the burden of proof lies with the District. Here, the District argued that the parent failed to demonstrate that equitable services were requested or that the privately attained services were appropriate for the student. 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). Therefore, I find that the District has the burden of proof to demonstrate it offered the student a FAPE. June 1st Applicable
The parent contends that the District failed to provide services for the 2022-2023 school year. At the Due Process Hearing, the District declined to call any witnesses or offer any documents into evidence in its case in chief. There is no evidence in the record that the district provided the student with the any of the services recommended in the IESP dated June 15, 2021, for the 2022-2023 school year. There was testimony provided by the parent that the parent sought out special education services from a private provider and is financially responsible for the cost of those services if the parent is unsuccessful in this due process hearing.
While the Parent claims that the District failed to develop an IESP for the student for the 2022-2023 school year and therefore should be held liable for failing to provide the student a FAPE, the hearing record supports the conclusion that the parent did not request an IESP by June 1, 2022, in accordance with Education Law § 3602-c. Education Law § 3602-c, requires that parents who seek to obtain educational services for students with disabilities who are parentally placed in private school to file a written request for such services on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602c[2][a], [2-c]).
Other than the current due process complaint and the 10-day notice, both submitted after June 1, 2022, the parent failed to provide any additional testimony or evidence to demonstrate that the parent provided the District any notice whatsoever of the Parent’s intent to privately place the student or that the District is being requested to provide services for the 2022-2023 school year under Education Law § 3602-c. June 1st Waiver
The District argued that due to the parent’s failure to submit a written request for special education services for the student prior to June 1st the student is not entitled to services (Educ. Law § 3602-c(2)). The parent’s representative argued that the District waived the June 1st deadline through its conduct and its failure to raise the defense earlier, and should therefore be barred from raising it as a defense now.
The SRO has adapted the “clear and unmistakable” waiver standard found in N.L.R.B. v. New York. Tele. Co., 930 F.2d 1009 (2d Cir. 1991). 17 Such a waiver can be implied, if a party is aware of their rights, by express language, agreement or conduct of the parties (id.).
There is no dispute that the parent failed to request special education services before June 1, 2022, or that the District failed to provide the services. Further, parent’s argument that the June 1st deadline does not apply because the District didn’t send a notice to the parent by April 1st, as indicated in the District’s Standard Operating Procedure Manual lacks persuasion. However, the record supports the conclusion that the District has provided OT, as recommended in the outdated IESP for the current school year (P-D). Essentially, through its conduct, the District has waived the June 1st deadline. It is illogical for the District to then take the position that the student is not entitled to the services it recommended and provided.
Child Find
The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made. 18 The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services".[19] The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade".[20] To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children. [21]
17 Appeal of a Student with a Disability 18-088 18 see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]
Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability".[22] To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student.[23] States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education".[24] Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program. [25]
Here, the District did not comply with its child-find obligations during the 2022-2023 school year. As explained herein, the District was on actual notice that this student has a disability that previously impeded the student’s ability to learn requiring remediation. The District cannot essentially bury its head in the sand because the parent didn’t inform it that the student would be attending private school. The appropriate action in this case would have been for the District to convene an IEP meeting and recommend a public school placement and services, if warranted. The hearing record shows that the student exhibited signs of a disability that gave the district reason to suspect that the student had a disability and required special education to address that disability.
FAPE
Accordingly, in this case, the DOE failed to meet its burden. The District presented no relevant documents into evidence and called no witnesses to demonstrate it provided the student with a FAPE. Subsequently, the hearing record fails to demonstrate how the District provided a FAPE. A review of same offers no explanation as to how the CSE made its recommendation, how the outdated IESP appropriately describes the student, or whether the IESP is meaningfully calculated to confer educational benefit. Per the parent’s affidavit testimony, the District did not provide a special education teacher or speech therapist, and the District failed to offer any evidence to the contrary (P-E).
In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IESP, and it is “through the IE[S]P that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[26] Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year. Thus, the parent is entitled to relief on behalf of the student.
Relief
As relief, the parent requests funding for equitable services at an enhance rate for the 2022-2023 school year and a bank of hours for services missed.
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim.[27] In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA.[28] Generally, a remedy for a deficiency in equitable services under State law should be similar to a remedy for deficient services under the IDEA.
Here, there is no actual dispute as to the appropriateness of the SETSS and Speech— Language Therapy, as the parent’s requested services are identical to those recommended in the last agreed upon IESP entered into this record. Therefore, the District’s argument that the services sought by the parent are inappropriate is without merit.
In this case, the hearing record demonstrates that the student’s individual special education needs can be addressed by the implementation of the District’s recommendation of services in the prior IESP. The student’s providers are qualified, and the student has made progress (P-D; P-E; P-H; P-I). Of note, the District offered no evidence concerning the appropriateness of the requested services, nor challenging the enhanced rates of the providers. Further, the District had the opportunity to cross-examine the parent’s witnesses and object to any evidence entered into the record. Under these circumstances, I find that the parent’s witness is credible and find no issue with the reasonableness of the rates.
Courts have determined that in IDEA claims, IHOs have the discretion to grant appropriate relief.[29] The only restriction is that “the relief is to be appropriate in light of the purpose of the Act.” 30 “Equitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.”[31] An award of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies have been deemed appropriate. [32]
While, the record supports a finding that the student is entitled to services, the formulation of the recommended hours should not disregard in its entirety the program and related services to be provided to the student as a whole, over the school year in issue. Lastly, any award shall consider the nature of the violation and the impact the award may have on the child’s educational needs. [33]
For the school year at issue, the 10-month school year is based on “180 instructional days” from September to June.[34] Therefore, the academic school year is 36 weeks, not 40 weeks. Further, the 12-month school year includes[30] additional days of instruction in July and August, or 6 weeks.[35] Other than adjusting the 12-month school year from 46 weeks to 42 weeks, I see no other reason to disturb the recommendations of the providers.
Here, the student had not received any SETSS during the 6-week summer session from July to August, totaling 24 hours. The student also received no SETSS for 8 weeks, from September 8, 2022 to November 6, 2022, totaling 32 hours. However, when the student did begin to receive services, the student only received 3 hours weekly for the remaining 28 weeks of the school year, leaving a deficit of 28 hours. Therefore, the student is entitled to a bank of 84 total hours of compensatory SETSS. Similarly, the student is entitled to a bank of 42 hours of speech therapy for the 2022-2023 extended school year.
Other than the reasons provided for adjusting the remedy, the undersigned does not find any other equitable factors applicable.
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
Based upon the above Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, retroactive to October 19, 2022, the date of filing, and during the pendency of these due process proceedings, the District shall continue to provide the student with:
• Special Education Teacher Support Services (SETSS), four periods per week, direct group services; • Speech—Language Therapy, 2x30:1; • Occupational Therapy 2x30:1; and • Physical Therapy 2x30:1 IT IS HEREBY ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year. IT IS HEREBY ORDERED, the New York City Department of Education is directed to fund the following special education services for the Student, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the invoices for such services rendered:
• Up to 168 hours of SETSS (4 periods per week x 42 weeks), to the extent not provided via pendency, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order, to be scheduled at the parent’s discretion, not to expire until 1 (one) year from the date of this Order.
• 42 hours of Compensatory Speech—Language Therapy (2x30:1 per week), to be provided by a licensed speech pathologist, at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order, to be scheduled at the parent’s discretion, not to expire until 2 (two) years from the date of this Order. IT IS HEREBY ORDERED, the New York City Department of Education is directed to continue to provide the student’ special education services as recommended in the June 15, 2021, IESP.
DATED: SO ORDERED
6/16/2023 /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
6/16/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Numbe r of Letter Date Name of Document Amended DPC 2/14/2023 3 pages
B. IESP 6/15/2021 14 pages
C. TDN 10/19/2022 2 pages
D. Affidavit of Parent 3/22/2023 3 pages
E. Affidavit of [REDACTED] 3/22/2023 3 pages
F. Affidavit of [REDACTED] 3/21/2023 1 page
G. Contract 10/3/2022 1 page
H. Provider Credentials 2/10/2023 1 page
I. Progress Report IHO’s Exhibits 12/18/2022 4 pages
I. DOE Pendency Brief 3/27/2023 6 pages
II. DOE June 1st Brief 3/27/2023 5 pages
III. Parent’s Pendency Brief undated 12 pages
Footnotes
[1] 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.
[2] A more detailed list of exhibits is attached.
[3] 20 U.S.C. § 1415(j); N.Y. Educ. Law §§ 4404(4); 34 C.F.R. § 300.518(a); 8 NYCRR § 200.5(m); see also Arlington Cent. Sch. Dist. V. L.P., 421 F. Supp. 2d 692, 696 (S.D.N.Y. 2006).
[4] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982).
[5] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[6] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[7] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[8] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[12] Id.
[13] Educ. Law § 3602-c (2)
[14] Educ. Law § 3602-c(2)(a)
[15] 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].
[16] SRO-19-101.
[19] 20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]
[20] 34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]
[21] 34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]
[22] J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]
[23] Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225
[24] Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]
[25] 8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]
[26] Endrew F., 137 S.Ct. at 1002.
[27] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369- 70 [1985]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]; T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 [2d Cir. 2009]
[28] 471 U.S. at 370-71; see Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]
[29] 20 U.S.C. § 1415 [i][2][C][iii]
[30] Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985)
[31] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993);
[32] Burlington at 369; see Polera v Board of Education, 288 F.3d 478, 486 (2d Cir. 2002).
[33] see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity”]
[34] SRO 23-019
[35] Id.