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Case Number: 592573 - NYC: 243181
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: N.Y.C. Dept. of Education
Home District: [REDACTED]
Service District: [REDACTED]
Date of Filing: 12/01/2022
Hearing Requested by: [REDACTED]
Hearing Date: 03/17/2023
Actual Record Closed Date: 05/11/2023
Date of Decision: 05/12/2023
Date of Distribution: 05/12/2023
Impartial Hearing Officer: Patricia Peña, Esq.
NAMES OF PERSONS WHO APPEARED ON 04/04/2023
For the Student and Parent:
[REDACTED]
For the Department of Education:
[REDACTED]
Witnesses for the Parent:
[REDACTED]
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 12/01/2022 by [REDACTED] (“Parent”), through counsel on behalf of her child, [REDACTED] (“Student”) against the New York City Department of Education (“DOE” or District”). I was appointed as the Impartial Hearing Officer on 02/06/2023. On 02/13/2023, a pre-hearing conference was held via WebEx. At the conference, the parties indicated the that: (1) a resolution meeting was not held in this case; (2) case concerned a child find issue; (3) DOE was still investigating the claims set forth in the DPC; (4) Counsel for DOE stated that DOE would file a response to the DPC if DOE did not send Parent prior written notice.[1] Additionally, parties asked for and were granted a 30-day extension of the compliance date to allow the DOE time to complete its investigation and to prepare for hearing. [2]
A due process hearing was held virtually on 04/04/2023. [REDACTED]. represented the Parent and [REDACTED] represented the DOE. DOE did not submit any documents into evidence, call any witnesses, and waived opening statement but did not concede that there was a denial of FAPE in this case.[3] Parent submitted exhibits A through N into evidence without objection.[4] Included in Parent’s exhibits were affidavits from the [REDACTED], CSE Liaison (“CSE liaison”) for the [REDACTED] (“Private School”) and the Parent. These witnesses were available for cross examination and clarifying questions. At DOE’s request, parties were given an opportunity to submit written closing statements.[5] DOE did not submit a closing statement.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“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, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Student is a [REDACTED]-year-old child with a diagnosis of specific learning disorder with impairment in reading (word reading accuracy, reading fluency) and written expression (spelling accuracy, organization of written expression).[6] In the DPC, Parent asserts that the Student’s academic struggles began in kindergarten where he experienced difficulty with reading, trouble with vowel sounds, was inconsistent with his sight word recognition and often guessed word by context rather than trying to sound them out.[7] Parent alleges that DOE failed to discharge its Child Find obligations with respect to the Student.[8] Parent further alleges that she only learned about special education in August of 2022 and that upon this realization, on 08/24/2022, she sent the DOE a Ten-Day notice requesting an initial Individual Educational Plan (“IEP”).[9] Parent contends that as of the filing of the DPC, the Committee on Special Education (“CSE”) had failed to offer her son an IEP or consider the recommendations from a recent neuropsychological evaluation provided to the CSE.[10] Therefore, Parent contends that DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”).
ISSUE
Whether DOE failed to discharge its obligations under Child Find and failed to offer Student a FAPE for the 2022-2023 by failing to offer Student an IEP. By way of relief, Parent seeks a finding that DOE denied Student a FAPE for the 2022-2023 school year. Parent seeks an award of: (1) tuition reimbursement for the 2022-2023 school year; (2) door to door special transportation; (3) Costs and fees and (4) any additional relief the IHO determines is appropriate. [11]
In light of the foregoing and as more fully discussed below, I find that (a) the DOE failed to meet its burden that it offered the Student a FAPE for the 2022-2023 school year, (b) the Private School offers Student specially designed instruction sufficient to meet the Student’s needs, and (c) the equities support Parent’s requested relief.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
In May 2022, Student underwent a neuropsychological evaluation.[12] Student was last evaluated by this evaluator in 2016. Student’s overall intellectual abilities in general, tested in the Average range.[13] As compared to his evaluation in 2016, Student’s score in his working memory index increased significantly reflecting greater concentration and problem-solving skills.[14] However, Student’s verbal comprehension index was notably lower than it was the last time reflecting increasing demands of language formulation as Student gets older.[15] The evaluator noted that “[o]verall, [Student’s] verbal knowledge and reasoning are strong; however, he has some inconsistencies in the way that he processes, understands, and explains verbal concepts. In particular, [Student] seems to have specific challenges sequencing and retaining oral information as it becomes more complex, as well as expressing his ideas when he is not confident in his explanations or word choices.”[16] The evaluator diagnosed Student with a moderate specific learning disorder with impairment in reading and a mild impairment in written expression.[17] The evaluator concluded that Student has “challenges with aspects of language based and executive functioning that impact his learning. In particular, [Student] has trouble sequencing and organizing ideas, finding specific words to express himself, and working with information efficiently. While he has made strides in holding and working with information in his working memory, [the Student] continues to struggle at times with auditory cues.” Student has difficulty with reading fluency which can limit his comprehension at times. Also, his spelling and writing are a “laborious” task for Student.[18] Based on these findings, the evaluator recommended that Student continue in a small, structured, and nurturing special education setting with students with similar learning profiles while in elementary school.[19] The evaluator notes that the Student’s progress should be viewed in the context of the level of support that he’s received. [20]
In her affidavit, the CSE Liaison testified that her duties as liaison include advising parents regarding their interactions with the CSE’s and helping parents of students with disabilities understand the supports and services available to them within their public school system for when they are ready to be mainstreamed.[21] She testified that the Private School is an independent, not for profit, special education school that accepts students of average to superior intelligence who the school is to teach the students the tools necessary to make a successful transition to a general education school setting.[23] All of the teachers at the Private School are college graduates, some has master’s degrees, and all receive training at the school.[24] Class size generally range from 10 to 13 students in a class with two teachers.[25] The Private School’s program is based on OrtonGillingham principles.[26] Language instruction is embedded in all content classes, art, and physical education. Teachers are trained in implementing Orton-Gillingham principles.[27] Instruction is differentiated for students through scaffolding, review and reteaching, extra support in classes, during lunch, via program modification and testing accommodation.[28] Students are grouped homogenously for ELA and Math and heterogeneously for science, social studies, homeroom, art, and physical education. [29]
Student is in the 8th grade for the 2022-2023 school year.[30] Student was admitted to the Private School in 2016.[31] The CSE Liaison testified that Student continues to be an ideal candidate for the school. Student does not read accurately in a consistent manner or fluently because the correct application of phonological rules is a slow and laborious process for him. The Student also has limitations of working memory.[32] Student is in a class of 11 students in ELA and 10 students in Math. [33]
22 Id.
On cross examination, the CSE Liaison stated she assumed that the Private School would have been made aware of Student’s special needs upon admission since the school is designed for students with language-based learning disabilities.[34] The Private School does not directly inform the CSEs about the students in the school, they do not initiate the process.[35] She understood the Child Find obligation to be a burden on school districts to identify students with disabilities within the jurisdiction but testified that the Private School does not play a role to bring Students to the attention of the school districts but once a student has an IEP, the Private School will do its best to educate the CSE on the Student’s needs.[36] Not all of the students at the school have an IEP.[37] She testified that Student struggles with decoding.[38] He’s learned good strategies but its not something that comes natural to him. [39]
The Parent testified that Student has a long-standing history of learning challenges stemming from pre-school.[40] Parent is a teacher.[41] In 2016, Student underwent a neuropsychological evaluation when he received a diagnosis of learning disability in reading and writing and anxiety.[42] Student was enrolled at the Private School for the 2017-2018 school year. Parents received financial aid from the Private School except for the 2022-2023 school year when the school did not offer financial aid.[43] Parent testified that she was not aware of availability of a special education evaluation or services from the NYC Department of Education until August of 2022 and is not aware of any outreach by the DOE to either the Private School or the prior school Student attended.[44] Parent clarified that she became aware of the special education services offered by the NYC Dept. of Education when a friend of a friend told her that she should get her son an IEP and that her son should be getting an education from the NYC Public Schools that specialize in dyslexia and that she should not have to pay for it. [45]
Included in Parent’s evidence was the Student’s Q2 Report Card. Student’s lowest grade was a B+ with an A- in reading and B+ in writing.[46] Student’s winter progress reports indicates that student participates in class.[47] His Science teacher notes that Student is able to successfully complete assignments with little teacher support.[48] Similarly, the Student’s Q4 Report Card indicates that he did very well achieving “Good” and “Very Good” marks in his subjects. [49]
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [50]
Prong I
The IDEA provides that children with disabilities are entitled to a FAPE.[51] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[52] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in to enable the student to receive educational benefits. 53 In order 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.” 54 School districts are not required to "maximize" the potential of students with disabilities, 55 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'." [56]
In its opening statement, counsel for Parent contends that Student’s educational challenges were apparent to his parents and teachers from an early age and that the District failed to adhere to its Child Find obligations. Parent further alleges that even after Parent submitted its request, the District failed to conduct a timely evaluation and IEP of the Student. [57] Child Find
Under the IDEA, states and local educational agencies who receive federal funds have an obligation under the “child find” provisions to “identify, locate, and evaluate students who are suspected of having 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.”[58] This mandate extends to “children with disabilities who are enrolled by their parents in private, religious, elementary schools and secondary schools located in the school district served
53 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. 54 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]. 55 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132. receive needed special education services,[60] even though they are advancing from grade to grade." [61]
Furthermore, to satisfy its child find requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children.[62] The U.S. Department of Education Office of Special Education and Rehabilitative Services (OSERS) issued some guidance to State educational agencies and local educational agencies regarding its child find obligations. Examples of ways in which a local educational agency can undertake its obligation to locate, identify, and evaluate children is by holding professional development sessions for private school teachers regarding the IDEA’s evaluation and reevaluation criteria, posting flyers at the private schools and facilitating round table discussions with community members. [63]
The child find duty is triggered when a district “has a reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.”[64] A child find violation occurs when the district overlooks clear signs of disability and a) is negligent by failing to order testing or b) has no rational justification for the decision not to evaluate the student.[65] A school's failure to comply with child find may constitute a procedural violation of the
59 J.S.v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635 [SDNY 2011]. IDEA.[66] A violation of FAPE can also occur when a parent requests that the district evaluate a child for purposes to making FAPE available to the child and the district failed to do so. [67]
Further, under the IDEA, where procedural violations are alleged, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies led to a deprivation of educational benefits to a student or the student’s right to a FAPE is significantly impeded. When a child requires special education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP. [68]
In its closing statement, Parent contends that the District had an affirmative duty to “find” the Student and had ample opportunity to do given the Student’s academic struggles going back to kindergarten. Parent further contends that relying on private school officials to refer students for an evaluation is not a sufficiently active strategy under the IDEA.[69] I agree. The law unequivocally extends a district’s child find obligations to students in private school. However, the District has the burden of showing that it has policies and procedures in place to identify, locate, and evaluate students. In this case, the district failed to meet its burden by failing to present any evidence or witness testimony regarding policies and procedures that the district has in place for this purpose. Further, while I find Parent’s claim about not being familiar with special education services until August 2022 somewhat incredible given her profession as a school teacher, the district should not have waited for Parent to initiate the evaluation process and should have had procedures in place exhibited signs of a possible disability from an early age and the district should have identified Student as a child possibly in need of special education services.
Further, I find that Parent’s letter, at a minimum, constitutes a referral for evaluation under the regulations requiring the district to evaluate the Student to determine the Student’s eligibility for special education program and services. 70 The 08/24/2022 letter details the Student’s academic challenges since kindergarten as well as the findings of neuropsychological evaluations conducted in 2016 and May 2022 wherein the evaluator recommended academic remediation and supports.71 Upon receipt of this letter, the district had 60 school days to conduct the necessary evaluations, convene an IEP meeting, and make a recommendation regarding the Student’s eligibility for services. 72 Not only did the district fail to hold a meeting within the statutorily mandated time frame, but the district failed to conduct the initial evaluation within the required 60 days from receipt of the referral. 73 The DOE was required to conduct the evaluations by October 23, 2022. The evidence indicates that the district reached out to the Parent on November 28, 2022, and that a social history meeting was scheduled for 12/14/2022. There is no evidence in the record regarding the outcome of the meeting or whether the meeting ever took place. Nonetheless, since the district failed to conduct the required evaluations, I find that the that the district failed to offer the Student a FAPE. In sum, not only did the district fail in its child find obligations, but once the Parent alerted the district that Student may eligible for special education program and services, the district failed to conduct timely evaluate the child.
Prong II
A private school placement must be “proper under the Act.”[74] This means the private school must offer an educational program that meets the student’s special education needs. [75] Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. 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’.” [76]
Parents need not show that the placement provides every special service necessary to maximize the student’s potential.[77] 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.”[78] A private placement is appropriate if it provides instruction specially designed to meet the student’s unique needs. [79]
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 the educational benefit. Still, 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. [80]
I find that the Parent has met its burden in proving that the Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard. The evidence establishes that the Student’s individual special education needs are being addressed by the Private School for the 2022-2023 school year. I find that the instruction offered is "reasonably calculated to enable the child to receive educational benefits."[81] Instruction at the Private School is “structured, sequential, multisensory, and language based.”[82] In sum, the Private School provides a supportive environment, with small classes, a low student teacher ratio, individualized instruction, a multi-sensory, and a language-based program to enable the Student to make academic, social, and emotional progress. Under these circumstances, I find that the Parent’s witnesses are credible, and the Private School met the Student’s needs for the 2022-2023 school year.
Equities
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.”[83] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, 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 needbased 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. [84]
Here, there is no evidence that Parents failed to cooperate with the district in its efforts to evaluate the Student. By way of relief, Parents seek an award of tuition reimbursement. Parents signed a contract with the Private School on 02/11/2022 for the cost of tuition and fees in the amount of $68,575.[85] As of 3/15/2023, Parents had paid $61,917.50 towards the cost of tuition leaving an outstanding balance in the amount of $6,657.[86] I find the cost of tuition reasonable and find that Parents are entitlement to reimbursement. However, I do find that reimbursement should be reduced 60 days for a total in the amount of $13,715 to reflect the time the district would have had to conduct the initial evaluation.[87] Additionally, I am ordering the CSE to conduct and/or complete the necessary evaluations and convene a meeting within 60 days of the date of my order to determine Student’s future eligibility for special education programs and services. Transportation
The IDEA requires that a school district must provide transportation for a child with a disability if that service is necessary for a disabled child ‘to benefit from special education.” [88] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’”[89] Additionally, New York law 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.” [90]
Since the DOE did not challenge this request and I find that the Private School is an appropriate placement for the Student, I find that the Student is entitled to transportation.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, I HEREBY FIND: (1) The DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
(2) The Private School is an appropriate placement for the Student for the 2022-2023 school year.
(3) The equities favor an award of tuition for the 2022-2023 school year from November 2022 through June 2023. IT IS THEREFORE ORDERED, (1) The DOE shall reimburse the Parent in the amount of $54,860 for the cost of tuition at the Private School for the 2022-2023 school year. Payments shall be made within thirty (30) days of receipt of proof of attendance.
(2) The DOE shall provide Student with transportation for the 2022-2023 school year.
(3) The CSE shall conduct and/or complete the necessary evaluations and convene an IEP meeting within 60 days of the date of this order to determine the Student’s future eligibility for special education program and services.
SO ORDERED.
Dated: 05/12/2023
Patricia Peña, Esq. (signed electronically)
Impartial Hearing Officer
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.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. LETTER DATE DOCUMENT No. Of Pages Hearing Request 12/1/22 4 pages
B. Ten Day Notice 8/24/22 2 pages
C. Ten Day Notice Confirmation 8/24/22 1 page
D. Neuropsychological Evaluation 6/9/22 21 pages
E. The [REDACTED] Quarter 2 Report Card 2022-2023 1 page
F. The [REDACTED] Winter Progress Report 2022-2023 6 pages
G. The [REDACTED] Enrollment Contract 2/11/22 4 pages
H. The REDCATED Tuition Agreement 3/15/23 1 page
I. The [REDACTED] Quarter 4 Report Card 2021-2022 3 pages
J. The [REDACTED] School Spring Progress Report 2021-2022 7 pages
K. Email from CSE: Social History Meeting 11/28/22 3 pages
L. Neuropsychological Evaluation 7/18/16 21 pages
M. Affidavit of Testimony: [REDACTED] 3/27/23 3 pages
N. Affidavit of testimony: [REDACTED] 3/28/23 14 pages
IHO EXHIBITS
1. Parent’s Closing Brief 04/24/2023 8 pages IHO
Footnotes
[1] PHC Tr. 4-9
[2] Id. at 9
[3] Tr. 6, 8
[4] Tr. 7
[5] Tr. 23
[6] Parent’s D009
[7] Parent’s A002
[8] Id.
[9] Id. at 003
[10] Id.
[11] Parent’s A004
[12] Parent’s D
[13] Id. at 005
[14] Id.
[15] Id.
[16] Id. at 06
[17] Id. at 009
[18] Parent’s D009
[19] Id. at D010
[20] Id.
[21] Parent’s N003 have been diagnosed with language-based learning disabilities including dyslexia. 22 The goal of
[23] Id.
[24] Id. at N004
[25] Id. at N005
[26] Id.
[27] Id.
[28] Id. at 7
[29] Id.
[30] Id. at 010
[31] Id. at N011
[32] Id. at N012
[33] Id.
[34] Tr. 13-14
[35] Tr. 14
[36] Tr. 15-16
[37] Tr. 17
[38] Tr. 19-20
[39] Tr. 20
[40] Parent’s M001
[41] Id.
[42] Id. at M002
[43] Id.
[44] Id.
[45] Tr. 22
[46] Parent’s E001
[47] Parent’s F
[48] Id. at 005
[49] Parent’s I
[50] NYS Educ. Law § 4404[1][c]
[51] 20 U.S.C. § 1400 [d] [1] [A]
[52] 34 C.F.R. § 300.13 the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [SDNY 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. 2010]; and 20 U.S.C. § 1412 [a] [3] [A]; 34 CFR § 300.111; 8 NYCRR § 200.2 [a] [1] and [7].
[56] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[57] Tr. 9-10
[58] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing Handberry v. Thompson, 446 F.3d 335, 347-348 by the [local educational] agency.” 59 This is an ongoing, affirmative duty to ensure that students 750 [2d Cir. 2018], quoting, Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225.
[60] Forest Grove, 557 U.S. 230 [2007] K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [SDNY 2019], aff'd, 2021 WL 745890 [2d Cir. Feb. 26, 2021]; 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 fn.13 [NDNY 2004]; and 20 U.S.C. § 1412[a] [3]; 34 CFR§ 300.111[a] [1] [i].
[61] 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]; and 34 CFR§ 300.111[c] [1]; see 8 NYCRR§ 200.2 [a] [1] and [7].
[62] 34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7].
[63] OSEP Guidance on Child Find Requirements for Privately Placed Students, 80 IDELR 197 (February 2022).
[64] J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 660 [SDNY 2011]; 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].
[65] Application of a Student with a Disability, Appeal No.: 23-026, p.11, citing, Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735,
[66] D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d Cir. 2012); and D.A. ex rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 453 5th Cir. 2010.
[67] See J.S.v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635 [SDNY 2011] (finding that Parent’s written request to evaluate the student creates an obligation on the District to evaluate the student and determine eligibility); see also, OSEP Guidance on Child Find Requirements for Privately Placed Students, Page 5, 80 IDELR 197 (February 2022).
[68] Forest Grove School Dist. v. T.A., 557 U.S. 230
[69] Parent’s Closing Statement, IHO 1 to locate, identify, and evaluate the Student, as required by law. Moreover, Student in this case 70 8 NYCRR 200.4(a)(1)(i) 71 Parent’s B002 72 8 NYCRR 200.4(d) 73 20 U.S.C. §1414(a)(1)(C)(i)(I); 34 C.F.R. §330.301(c)(1)(i); 8 NYCRR 200.4(b)
[74] 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).
[75] 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).
[76] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006].
[77] Frank G., 459 F.3d at 364-65
[78] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[79] 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].
[80] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[81] Frank G., 459 F.3d at 364
[82] Parent’s N013
[83] Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 [2009] whether a parent’s unilateral withdrawal of her child from the public school was justified, whether Educ. Law §§ 4401(4), 4402(4)(d).
[84] E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[85] Parent’s G004, H001
[86] Parent’s H001
[87] Based on a 10-month school year, monthly tuition equals $6,857.50. This amount times 2 for the months of September and October based on Parent’s August letter, totals $13,715.
[88] Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y.
[89] Donald B., 117 F.3d at 1375
[90] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww).