New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243749

Student’s Name: Student

Date of Birth: Birthdate

District: School District

Hearing Requested By: Parent

Date(s) of Hearing: February 17, 2023, March 17, 2023, May 12, 2023, June 9, 2023

Actual Record Close Date: July 24, 2023

Hearing Officer: Virginia Tillyard

BACKGROUND AND POSITION OF THE PARTIES

Parents, through counsel, filed a due process complaint (the “DPC”, Ex. A) under the Individuals with Disabilities Education Act, 20 U.S.C. section 1415(f) (the “IDEA”) and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) on December 14, 2022 and an amended due process complaint on March 29, 2023 (the “DPC”), alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2022-23 school year.

In the DPC the Parents allege, among other things, substantive and procedural violations in connection with Student’s IEP dated June 16, 2022 (the “2022 IEP”1). As remedies in the DPC, Parents request funding for Student’s attendance at the Private School for the twelve month 2022-23 school year, and round-trip special education transportation with a 1:1 transportation paraprofessional. As more fully discussed below, I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the 2022-23 school year, (b) the Private School provides Student educational instruction specifically designed to meet Student’s unique needs, and (c) the equities support the Parent’s requested relief.

JURISDICTION

The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.

PROCEDURAL HISTORY

I was appointed as Impartial Hearing Officer to this case on February 8, 2023. The compliance date was extended at parties’ request so that parties could try and settle this case, but they were unable to do so.

1Ex. 2

Both parties submitted an exhibit packet. All exhibits were admitted. The Parents presented the affidavit testimony of Student’s mother and the Private School Witness. The DOE’s attorney cross-examined Student’s mother. The DOE did not call any witnesses. Both parties made an oral closing.

LEGAL FRAMEWORK

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.2

The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA are (1) to ensure 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) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate (2) the services selected by the parent were appropriate and (3) equitable considerations support the 220 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits. parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

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 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 (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT AND DECISION

The Student

The student was [REDACTED] at the time of the 2022 IEP meeting. The CSE classified him as a student with a disability classification of Autism3. Parents notified the CSE at the 2022 IEP meeting that they intended to unilaterally place him at the Private School for the 2022-2023 school year.^[4] On June 17, 2022, they provided the DOE with written notice of the same, as well as their intent to seek direct funding of the tuition.^[5] They then placed him in the Private School, a specialized private school in Long Island, New York.

Student’s Needs

3Ex. 2-1

There is ample evidence of Student’s needs in the record, although I rely only on those that pre-date the 2022 IEP meeting for purposes of the appropriateness of the DOE’s recommendations and placement, and the Parents’ unilateral placement.^[6] Student has been diagnosed with a mixed expressive and receptive language disorder, moderate delays in pragmatic language disorder7 and autism.^[8] He has a severe (life threatening) peanut and nut airborne allergy and his doctor recommends a nut-free school and paraprofessional for safety on the bus.^[9] A neuropsychological evaluation update dated April 2021 recommended continued twelve month placement in a small, full-time special education program specifically designed to meet the needs students with functioning levels similar to Student, with applied behavioral analysis (“ABA”) therapy, and teachers and providers trained to manage and support his areas of need.^[10] Student’s mother’s affidavit testimony and the Private School Witness’ affidavit testimony confirm the foregoing and provide further evidence of Student’s needs.

The Committee on Special Education (“CSE”) convened on June 16, 2022, to review Student’s educational program. Student was at a different private school at the time and was estimated to be at third grade level in reading and math.^[11] The 2022 IEP recommended continued placement in an 8:1+1 special class in a special school with adaptive physical education and related services of occupational therapy, speech therapy and parent counseling and training. It also recommended round trip special transportation with a 1:1 paraprofessional, limited travel time and fewer other students.^[12] On June 22, 2022 the CSE recommended placement in an 8:1+1 class at the Public School.^[13] The 2022 IEP notes Student’s severe nut allergy (Ex. 2-6) but does not indicate how Student would be protected from potential exposure to allergens.^[14]

The DOE’s case – provision of a FAPE

7Exs. 2 and 5

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).

A FAPE 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.” Rowley, supra. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.

The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).

The DOE’s failure to offer before the start of the school year an interim or permanent placement that can implement the student’s IEP is a procedural violation that may amount to denial of FAPE. See, e.g. Mr. and Mrs. A. v. New York City Dep’t of Educ., 56 IDELR 42 (S.D.N.Y. 2011), citing Bettinger v. New York City Dept. of Educ., 2007 U.S. Dist. LEXIS 86116 (S.D.N.Y. 2007); N.R. v. Dept. of Educ., 2009 WL 874061 (S.D.N.Y. March 31, 2009); G.U. v. New York City Dep't. of Educ., 23 F. Supp. 3D

210 (S.D.N.Y. 2014); V.S. v. New York City Dep't. of Educ., 25 F. Supp. 3D 295 (E.D.N.Y. 2014).

In limited cases, documents alone may be sufficient to prove the appropriateness of the CSE’s recommendations.15 Here, the DOE submitted the notice of the meeting for the 2022 IEP, the 2022 IEP, minutes and a waiver from the meeting for the 2022 IEP, a speech and language evaluation report dating from the spring and summer of 2021, a prior written notice for the 2022-23 school year citing two reports that the CSE “reviewed and discussed” and “used in the decision” to make the recommendations in the 2022 IEP, a school location letter dated June 22, 2022, and the SESIS events log for Student.^[16] The DOE cited SRO Appeal No. 23-005 in support of the proposition that its exhibits alone are sufficient to prove it has met its burden in Prong I of the Burlington/Carter test.

This is not one of the rare cases in which documentary evidence alone is sufficient to establish the appropriateness of the relevant IEP. The prior written notice (Ex. 6) lists two documents that the CSE reviewed and used in making its recommendations: a psychoeducational assessment dated March 12, 2021 and “school reports” dated June ^[15], 2022.^[17] None of the exhibits in the record correspond to those descriptions.^[18]

It is therefore not possible to determine, based solely on the DOE’s exhibits, that the evaluative materials the CSE relied on were adequate, or that at the time the CSE made its recommendations, the recommendations were reasonably calculated to enable Student to make progress appropriate in light of his circumstances. For the above reasons, the DOE has not met its burden, and I find that the DOE failed to offer Student a FAPE for the 2022-23 school year.

I do not need to consider further evidence in order to decide whether the DOE provided a FAPE for the 2022-23 school year.^[19]

The Parents’ Case

Appropriateness of the Private School unilateral placement

With respect to the requested remedy of tuition payment, the burden now shifts to the Parent to prove the appropriateness of the private placement. I find that Parents have met their burden with respect to the Private School.

To meet their burden of proving that their unilateral placement was appropriate, the parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007). However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d. Cr. 2006). The private placement need not provide certified special education teachers or have its own IEP for a student. Parental placements are not subject to the same mainstreaming requirements as a school district placement. Id. Subject to those exceptions, however, the same considerations and criteria that apply in determining whether a school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Gagliardo, 489 F.3d at 112. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14).

The Second Circuit has provided the following guidance in determining whether parents have met their burden:

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.

Gagliardo, supra, 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The Private School The DOE did not cross examine the Private School Witness and did not object to any of the Parent’s evidence regarding Student’s program at the Private School. The Private School Witness is the Vice President of Educational Programs at the Private School. There is nothing in the record that calls her reliability as a witness into question.^[20]

The Private School is a full time, twelve month, private special education school designed for students with autism spectrum disorder 5-21 years old. It provides academic, social and emotional supports. Students typically need extensive 1:1 services and treatment such as may not be available in a mainstream setting.^[21] Students receive a functional behavior assessment and an individualized behavior intervention plan. The Special Program is a program at the Private School that uses ABA methodology and another technique called Collaborative Problem Solving (CPS) to facilitate pupils’ skill development.^[22] Staff include certified special education teachers, a certified school psychologist, a certified clinical psychologist, a board certified behavior analyst, a social worker and licensed speech/language and occupational therapists. All staff are extensively trained in ABA. ^[23]

Student’s program at the Private School Student’s detailed progress reports from the Private School, his Action Plan and Functional Behavioral Assessment (both created by the Private School) show that the Private School has a detailed understanding of Student’s unique needs, has created detailed goals in each area of need and is providing individually designed services to meet those needs.^[24] Student’s summer and fall classroom schedules and the Private School Witness’s unchallenged affidavit testimony further demonstrate how the Private School’s programming and teachers met Student’s individual needs.^[25]

Progress

The hearing record also contains evidence to support a finding that the student made progress at the Private School.^[26]

Based on the record, including the Private School Witness’ testimony, I find that the Private School provided educational instruction specifically designed to meet Student’s unique needs. Parents have met their prong 2 burden with respect to the Private School.

Equities

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting Burlington, 471 U.S. at 374). Courts and hearing officers enjoy “broad discretion” in fashioning appropriate relief. Burlington, 471 U.S. at 374. In doing so, they may consider among other things 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. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Total reimbursement will not be appropriate if the cost of the private education was unreasonable. Carter, 510 U.S. 7.

Whether or not the parents cooperated with the CSE is a significant equitable consideration. Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. § 1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). 20 U.S.C. § 1412(a)(10)(C)(iv)(I) (bb) provides an exception to the ten business day notice requirement in the event a parent has not received notice of the ten business day requirement.27 Certain New York cases have also denied tuition reimbursement where the parents had no intention of accepting a school district placement.^[28]

Nothing in the record indicates that Parents failed to cooperate with the DOE. They provided the necessary ten days’ notice of their concerns with the 2022 IEP on June 17, 2023.^[29] The ten day notice also gave the DOE notice of the Parents’ intention to unilaterally place the Student at the Private School for the 2022-23 school year.^[30] No evidence was submitted at hearing describing the DOE’s response to the ten day notice.

Direct payment of tuition

Parents request direct payment of a total of $107,250 tuition for the 2022-23 school year to the Private School. On July 6, 2022 Student’s mother executed an unconditional, irrevocable guarantee to pay that amount.^[31] According to the Private School’s tuition affidavit, Parents had not paid any of it as of July 25, 2022.^[32] However, Student’s mother testified that Parents had paid a $500 deposit.^[33] Student attended the Private School during the year at issue.^[34]

Direct tuition funding may be an appropriate equitable remedy. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents have a right to 27“Notwithstanding the notice requirement in clause (iii)(1), the cost of reimbursement ...shall not be reduced or denied ...if...the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(1);….” retrospective direct payment where the private school is willing to “take the risk that the parents will not be able to pay tuition costs” as long as the parents are legally obligated to do so. As the court in Mr. and Mrs. A. also noted, the United States Supreme Court has endorsed prospective relief in Burlington.35 While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, direct payment need not be conditioned on the parent’s inability to pay and hearing officers have broad discretion to grant appropriate relief, including direct payment. Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 2023) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 2013) and Mr. & Mrs. A., 769 F. Supp. 2d at 428; see also Erde ex rel. J.E. v. Banks, 2022 U.S. Dist. LEXIS 232797 (S.D.N.Y. 2022). In any event, Parents in this case have submitted evidence of their income, which shows that they have insufficient means to afford the Private School.^[36]

I find nothing in the record to indicate that the cost of tuition at the Private School is unreasonable. The weight of the evidence establishes that Parent cooperated with the CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-23 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for direct payment of tuition.

I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) is directed to fund the cost of Student’s 2022-23 school year tuition at the Private School up to a total amount $107,250; and it is further

35“[I]t seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”

ORDERED that the DOE shall pay for the foregoing by reimbursing the Parents for any amounts they have paid towards the total, upon proof of payment, and pay the remainder directly to the Private School within 35 days of the date of this decision.

July 24, 2023

Virginia Tillyard, 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

EXHIBIT LIST

PARENT EXHIBITS

A. Exhibit Date Title Number of Ten Day Notice 6/17/2022 2 pages

B. Impartial Hearing Request 12/14/2022 5 pages

C. Amended Impartial Hearing Request 3/29/2023 4 pages

D. Neuropsychological Evaluation 4/2021 3 pages

E. Assistive Technology Evaluation 12/5/2022 3 pages

F. Neuropsychological Evaluation Update 3/2023 9 pages

G. Tax Return – [REDACTED] 2022 2 pages

H. Tax Return – [REDACTED] 2022 2 pages

I. Enrollment Contract 7/6/2022 2 pages

J. Payment Affidavit 7/25/2022 1 page

K. Classroom Schedule 2022 Summer 1 page

L. Classroom Schedule 2022-2023 Fall 1 page

M. Program Description 2022-2023 2 pages

N. DOE Transportation Amendment Form 7/22/2022 1 page

O. SL 45 Day Progress Report 9/1/2022 2 pages

P. Academic 45 Day Progress Report 9/21/2022 3 pages

Q. Social/Emotional 45 Day Progress Report 10/20/2022 2 pages

R. Action Plan 10/28/2022 2 pages

S. Functional Behavioral Assessment 10/28/2022 3 pages

T. OT 45 Day Progress Report 11/4/2022 2 pages

U. Q2 Progress Report Various 9 pages

V. Attendance Record 2022-2023 1 page

W. Affidavit of [REDACTED] 4/20/2023 4 pages

X. Medical Forms Various 9 pages

Y. Affidavit of [REDACTED] Undated 7 pages

DOE EXHIBITS

EXHIBIT DATE NAME PAGES

1. Notice of IEP Meeting 03/31/2022 3 pages DOE

2. IEP 06/16/2022 32 pages DOE

3. IEP Meeting Minutes 06/16/2022 5 pages DOE

4. IEP Meeting Waiver 07/01/2022 2 pages DOE

5. & Summer Speech and Language Evaluation Report 2021 Spring 10 pages DOE

6. Prior Written Notice 06/22/2022 4 pages DOE

7. School Location Letter 06/22/2022 3 pages DOE

8. Dates Events Log Various 4 pages DOE

IHO EXHIBITS

None

Footnotes

[4] Ex. 2-2

[5] Ex. A

[6] Exs. D-F, O-U, W-Y, 2, 3 and 5.

[8] Exs. 5, W and Y.

[9] Ex. W-1; Ex. X.

[10] Ex. D

[11] Ex. 2

[12] See also Ex. N

[13] Ex. 7

[14] Parents’ evidence includes medical forms and a completed medical accommodations request form for 2022-23 (Ex. X). The ten day notice says that Student “cannot be in a placement that has nuts of any kind on-site”. Ex. A Parents allege substantive and procedural violations of the IDEA and New York State law, including that the 2022 IEP recommendations were inappropriate, the recommended program was not reasonably calculated to confer a benefit, and that the CSE failed to rely on adequate evaluative materials. The DOE relied on its exhibits in defense of its provision of a FAPE for the 2022-23 school year. It did not put on any witnesses.

[15] See L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-090 and 19-054.

[16] Exs. 1-8

[17] Ex. 6-2

[18] The 2022 IEP, Ex. 2-1, and the 2022 IEP meeting minutes, Ex. 3-1, cite several other documents, not listed in the prior written notice, that the DOE received. Since they are not cited in the prior written notice, I cannot conclude that the DOE used them as a basis for its recommendations. Even were I to do so, they would fail to support a finding that the 2022 IEP was appropriate because, with the possible exception of Ex. 5 (which perhaps corresponds to the “Speech Language Evaluation 7/13/2021 mentioned in the 2022 IEP) none of them is in the record.

[19] I note, for example, that in the DPC, Parents allege that the DOE’s proposed placement school was “not nut free”. Student’s mother testified that the Public School served lunches in a communal cafeteria and regularly served peanut butter sandwiches at lunch time. Nothing in the 2022 IEP requires the DOE to offer a placement in a nut free school and the DOE did not explain how it would accommodate Student to insure he was not exposed to nuts or other allergens.

[20] Ex. Y

[21] Ex. M.

[22] Ex. P

[23] Id.

[24] Exs. O-U.

[25] Exs. K, L and Y

[26] Exs. O-U; Ex. W-4; Ex. Y-6.

[28] See, e.g. Carmel Cent. Sch. Dist., 375 F.Supp. 402 (S.D.N.Y. 2005).

[29] Ex. A

[30] Id.

[31] Ex. I

[32] Ex. J

[33] Ex. W, ¶25

[34] Ex. V.

[36] Exs. G and H

[279] and model forms are available at http://www.sro.nysed.gov