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CASE NUMBER: 597366 NYC: 246694
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 3/7/2023
Hearing Requested by: Parent
Date of Hearing: 5/1/2023; 5/30/2023
Record Close Date: 10/6/2025
Date of Decision: 10/6/2025
NAMES AND TITLES OF PERSONS WHO APPEARED
AT THE DUE PROCESS HEARING: May 1, 2023 May 30, 2023
For the Student:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
2. REDACTED, Law Student
For the Department of Education:
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
For the Student:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
2. REDACTED; REDACTED; law students observing
For the Department of Education:
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Identifying Information Term Used In FOFD and/or Exhibit List
REDACTED Parent
REDACTED Private School
REDACTED VP of Educational Programs
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
RESPONDENT
Dr. Oren Varnai, Esq., Impartial Hearing Officer
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/7/2023, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year.
During the school year in which Parent filed the DPC, Student was classified with Autism.
The Due Process Hearing (“DPH”) took place on 5/1/2023, where the Parent presented documentary evidence and the affidavit testimonies of Parent and Private School VP of Educational programs. DOE did not defend its provision of a FAPE, objected to the appropriateness of the unilateral placement, and did not claim that Parent was uncooperative or that the equities did not favor the Parent. A second hearing date took place on 5/30/2023 to address the sole issue of whether Parent’s request for an IEE was appropriate as there was insufficient information at the first hearing date with respect to whether it was DOE that conducted a neuropsychological evaluation on 2/22/2022 or independently by Parent. During the second day of hearing, the Parties agreed that it was DOE that conducted the evaluation through a contracted psychologist, and it was therefore a ‘DOE evaluation’ fur purposes of 8 NYCRR 200.4. Although Parent’s disagreement with the DOE evaluation first appeared in the DPC, DOE did not present a case as to the appropriateness of its own evaluation.
III. Findings of Fact and Decision
A. The DOE Deprived Student of a FAPE for the 2022-2023, 10-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and parents of such students are protected.[1] 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. [2]
A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[3] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[4] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[5]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[6] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[7] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [8]
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] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[11] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[12] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[13] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[14] 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.'"[15]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[16] and designed to be provided in the least restrictive environment (“LRE”).[17] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[18] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[19] through the use of appropriate special education services.[20] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[21]
A review of the IEP offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” [22]
As to Prong I of the Burlington/Carter standard, the DOE did not defend that it had provided the Student with a FAPE for the 2022-2023, 10-month, school year, and failed to meet its burden at hearing. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 10-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE.
B. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[23] This means that the private school must offer an educational program which met the student's special education needs.[24] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[25] 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.'" [26]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and when determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[27] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [28]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. [29]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was appropriate, and the cross examination of Parent and Parent’s witness did not elicit facts that Private School was not an appropriate placement. Private School VP of Educational Programs testified via affidavit[30] that she is familiar with Student and Student’s needs, placed Student in a classroom that would address those needs, and described the services Student was receiving at the Private School. Parent submitted Private School’s progress reports, 31 Private School enrollment contract, 32 Private School schedule,[33] and Private School program brochure.[34] I find the testimony credible, and that the Private School provided Student with instruction specially designed to meet Student’s unique needs.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [35]
C. The Equities Favor the Parent (Burlington/Carter Prong III)
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[36] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [37]
Here, Parent provided the necessary Ten-Days’ Notice[38] of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns, whereby Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.
By way of relief, Parent seeks direct funding of Private School tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so;” Parent testified that her annual salary was $53,000 per year, and is unable to pay the tuition at the Private School, which amounts to $96,276.25.[39] Equity demands that the DOE directly fund Student’s remaining Private School tuition.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement, and direct funding.
D. Section 504 Claims
Parents asserted a claim under Section 504 of the Rehabilitation Act for the School Year in question and requested reimbursement of Private School Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”[40] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” [41]
An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”[42] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.[43] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.[44] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. [45]
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”[46] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. [47]
Parent, who is of limited financial means provided uncontroverted evidence [48] maintaining that the contracted meal plan amounts to $1,317.50. Accordingly, it may appear that a “policy…is outwardly neutral—only students who attend participating schools can receive free meals. But this policy disproportionately affects disabled students, who are the only students who must choose between a FAPE at a non-participating school and free meals at a participating school that cannot meet their needs.” [49]
Given that the Student qualified for free meals while attending DOE schools and, due to their disability and a denial of FAPE for the 2022-2023 school year, which necessitated their unilateral placement at Private School, the Student is entitled to reimbursement for meals during in-person instruction days at Private School.
E. Independent Educational Evaluation
1. Evaluation/Re-evaluation
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation.[50] A district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary. [51]
A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities.[52] Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP. [53]
A district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors;[54] and ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status. [55]
An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified. [56]
2. IEE
An IEE is an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.[57] If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. [58]
An IEE may be requested by parents.[59] If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.”[60] A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. [61]
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.” "When an evaluation is conducted in accordance with [34 CFR 300.304 through 34 CFR 300.311] and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.”[62] When a parent seeks an IEE to make up for a missing assessment, the district may not avoid either filing for due process or funding the IEE by simply conducting the missing assessment. [63]
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.”[64] The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.
It has been held that a parent may request a district funded IEE in a DPC in the first instance, and it has also been noted that because this method can be used unfairly, a parent may be in a better position to elicit district funding of an IEE if the IEE was requested outside of the more formal context of an impartial hearing.[65] Where a request for IEEs was received for the first time in the parents' DPC, the state review officer determined that the district ought not to be faulted for attempting to defend the appropriateness of the evaluations it conducted at the resulting impartial hearing.[66] The Court in the Trumbull Bd of Educ. held that:
“The IDEA does not provide a statute of limitations for a parent's right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. But that does not mean that a parent will be able to abuse the process to obtain a publicly funded IEE based on their disagreement with an old evaluation. … As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable. "A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation. The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.”
The rationale for Parents’ embedded rights to demand these independent evaluations exists because “[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short. It provides “parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion,” and it ensures that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [67]
During the second day of hearing, the Parties agreed that the 2/22/2022 neuropsychological evaluation was conducted by DOE, and Parent challenges the comprehensiveness of the evaluation. Therefore, absent DOE’s meeting its burden as to the appropriateness of its own evaluation, Parent is entitled to a publicly funded IEE. Although DOE objected to the granting of an IEE, DOE did not object to an IEE at reasonable market rate if ordered.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that DOE directly fund Private School tuition for the 2022-2023, 10-month, school year, in an amount not to exceed $96,276.25.
2. ORDERED that DOE directly fund Student’s meals at Private School in an amount not to exceed $1,317.50 for the 2022-2023, 10-month, school year.
3. ORDERED that DOE directly fund an independent neuropsychological evaluation by a licensed New York State Psychologist, with a provider of Parent’s choosing, at reasonable market rate.
4. ORDERED that the CSE shall reconvene to reconsider Student’s placement within 30 days of receipt of the neuropsychological report.
5. All other claims and requested relief not addressed at the Due Process Hearing are dismissed with prejudice.
DATED: SO ORDERED
October 6, 2025
Dr. Oren Varnai, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
PARENT EXHIBITS
A. Impartial Hearing Request 03.07.23 4 pages
B. Ten Day Notice 10.12.22 3 pages
C. Daily Behavior Sheet 2022 148 pages
D. IEP 08.22 25 pages
E. Parental Guarantee of Tuition 2022-2023 2 pages
F. Affidavit of Tuition 04.11.23 1 page
G. Class Schedule 2022-2023 1 page
H. Quarterly Report 2022-2023 2 pages
I. Private School Program Brochure 2022-2023 8 pages
J. 45 Day Social Emotional Report 01.11.23 1 page
K. 45 Day Progress Report 01.12.23 2 pages
L. 45 Day Speech Therapy Report 01.12.23 2 pages
M. Occupational Therapy Report 01.04.23 2 pages
N. FBA 2022-2023 4 pages
O. BIP 2022-2023 6 pages
P. Neuropsychological Evaluation 02.22.22 7 pages
Q. Affidavit of VP of Educational Program 04.26.22 6 pages
R. Affidavit of Parent 04.25.23 3 pages
S. Resume of VP of Educational Program Undated 2 pages
T. Parental Guarantee Meal Costs 2022-2023 3 pages
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. None None None
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[4] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[5] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[6] R.E., 694 F.3d at 190-91.
[7] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[12] Endrew F., 137 S. Ct. at 1001.
[13] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[14] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[15] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[16] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[17] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[18] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[19] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[20] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[21] Endrew F., 137 S. Ct. at 1000.
[22] Endrew F., 137 S. Ct. at 1002.
[23] 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).
[24] 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).
[25] Gagliardo, 489 F.3d at 112.
[26] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[27] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[28] 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).
[29] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[30] Ex. P-Q.
[33] Ex. P-G.
[34] Ex. P-I.
[35] Frank G., 459 F.3d at 364.
[36] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[37] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[38] Ex. P-B.
[39] Ex. P-E; P-F. It should be noted that Parent requested in her DPC direct funding for a tuition amount of $88,000. The nature of the discrepancy is unclear, but the tuition contract and affidavit consistently indicate that the total tuition due was $96,276.25, which seems to reflect related services costs and 1:1 paraprofessional.
[40] 34 C.F.R. § 104.33(a).
[41] 34 C.F.R. § 104.33(b).
[42] 34 C.F.R. §104.3(j)(1).
[43] 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).
[44] See 28 C.F.R. § 35.108(c)(1)(ii).
[45] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
[46] 34 C.F.R. § 104.36.
[47] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act- 504-delegation-Signed.pdf.
[48] Ex. P-T.
[49] C.D. v. New York City Department of Educ., WL 400382 (S.D.N.Y. 2009) at 21.
[50] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(a)(2).
[51] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(B)(1)-(2).
[52] 8 NYCRR § 200.4(b)(3).
[53] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[54] 20 U.S.C. § 1414[b][2][C]; 8 NYCRR 200.4(b)(6)(x); 34 CFR 300.304(b)(3).
[55] 20 U.S.C. § 1414[b][3][B]; 8 NYCRR 200.4(b)(6)(vii); 34 CFR 300.304(c)(4).
[56] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[57] 8 NYCRR § 200.1(z); 34 CFR § 300.502(a)(3)(i).
[58] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[59] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[60] 8 NYCRR § 200.5(g)(1)(iv); 34 CFR § 300.502(b)(2)(i)-(ii).
[61] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
[62] Letter to Baus, 65 IDELR 81 (OSEP 2015).
[63] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[64] 8 NYCRR § 200.5(g)(2); 34 CFR § 300.502(d).
[65] See, e.g. Application of a Student with a Disability, Appeal No. 21-170; Application of the Dep't of Educ., Appeal No. 21- 135; Application of a Student with a Disability, Appeal No. 19-094.
[66] Application of a Student with a Disability, Appeal No. 21-172.
[67] D.S. v. Trumbull Bd of Educ., quoting Schaffer, 546 U.S. at 60-61.