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NYSED # 597521 - NYC #246818
FINDINGS OF FACT AND DECISION
Case Number: 246818
Student’s Name: REDACTED (Student)
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 03/21/2023
Hearing Requested by: REDACTED (Parents)
Date of Hearing: 08/28/2023
Record Close Date: 09/07/2023
Date of Decision: 09/07/2023
Names and Titles of Persons Who Appeared on August 28, 2023
For the Department of Education (DOE): REDACTED, Esq., Agency Attorney
For the Student:
REDACTED, Esq., Law Office of Tamara Roff
REDACTED - Parent and Witness
REDACTED - Witness
Observers
INTRODUCTION
Parents, through counsel, filed a Due Process Complaint (DPC) on March 21, 2023. In the DPC, Parents allege that the Department of Education (DOE) failed to offer Student[1] a free and appropriate public education (FAPE) for the 2022-2023 school year. [2]
Parents seek an award reimbursing them for Student’s tuition at Private School, a private program, for the 2022-2023 school year. The DPC asserts the DOE failed to provide Student with a FAPE for the 2022-2023 school year when its Committee on Special Education (CSE): (1) failed to recommend a program calculated to confer an educational benefit on Student; (2) made recommendations that are inappropriate, insufficient, vague, and unmeasurable; (3) failed to include sufficient promotional criteria; (4) failed to describe or adequately address the full range of Student’s academic, social/emotional, language, sensory/motor, and behavioral needs; and (5) failed to recommend an appropriate school placement location.
As detailed below, I find: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2022-203 school year; (b) Private School offered Student specially designed instruction sufficient to meet Student’s needs; and (c) the equities support Parents’ requested relief.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer on March 22, 2023. The DOE did not hold a resolution meeting. A Prehearing Conference was held on April 25, 2023, and a Prehearing Conference Summary and Order was issued the same day.[4] Status Conferences were held on May 24, 2023, June 21, 2023, and July 24, 2023, with Status Conference Summaries and Orders issued and served on the parties on those dates. A Due Process Response was served on April 19, 2023.
5 [6]
Four orders of extension were granted in the action.
A merits hearing was held before me on August 28, 2023. At the August 28, 2023 hearing, DOE Representative produced 13 exhibits, and all were admitted into the record.[7] Also, at the hearing, Parents’ Representative presented 18 exhibits, and all were admitted into the record.[8] The DOE waived making an opening statement and rested their case without presenting testimony from witnesses. Parent #1 9 and Private School Representative provided testimony on behalf of Student and were cross-examined. Both parties then presented closing statements.
5
IHO Ex. II.
9 Only Parent #1 provided testimony evidence. There was no suggestion in the record of a disagreement between the two parents regarding the facts, observations, conclusions, and opinions provided by Parent #1. Therefore, the decision uses the plural “parents” and assumes Parent #2 agrees with the facts, observations, conclusions, and opinions expressed by Parent #1.
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, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student was REDACTED years old for the 2022-2023 school year and attended Private School on a 10-month school year basis.[10] Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that the Student presents with “learning disability.”
Student was first evaluated for academic services in the 2nd grade. Prior to the school year
[12] at issue, Student had been educated in a New York City (N.Y.C.) public school, in a general education setting with integrated co-teaching services (ICT) and receiving related services, such as speech-language therapy and counseling services.[13] In October 2001, Parents had Student privately evaluated by Neuropsychologist.[14] The report prepared by Neuropsychologist concluded that Student has many academic strengths. Still, the testing identified Student to have: Social Anxiety Disorder, Specific Phobia, Other Specific Anxiety Disorder, “weak language skills,” “weak math skills,” and Nonverbal Learning Disorder (NLD).[15] Neuropsychologist opined that: (1) an ICT classroom is inappropriate for Student’s needs as it is too large to provide the individualized support Student needs; (2) ICT [16] classes are not organized around the type and intensity of support Student requires; 17 (3) adding more small-group intervention is not an appropriate solution for Student because the frequent pull-out for services will amplify the confusion and disorganization Student struggles with; and (4) Student requires a smaller program organized around the needs of students with similar struggles and academic potential. [18]
17
Id.
Parent #1 attended the May 23, 2022 IEP (2022 IEP) meeting and participated in developing the 2022 IEP, which planned for the 2022-2023 school year. 19 The 2021 Neuropsychological Report had been provided to the CSE prior to the 2022 IEP meeting. 20 Ultimately, the 2022 IEP recommended that Student’s education continue in an ICT classroom while receiving Special Education Teacher Support Services (SETSS), speech-language therapy, and counseling sessions.
21
At the 2022 IEP meeting, Parent #1 expressed their concerns that ICT was not an appropriate placement because Student was already struggling academically while receiving ICT with SETSS. [22] Student received a school placement recommendation for Public School, which accommodated about 4,200 students.[23] Parents claim that employees at Public School indicated that ICT classes can have up to 34 students with a variety of different educational needs.[24] On August 24, 2022, Parents sent the DOE a “Ten-Day Notice” of their intent to enroll Student at Private School unilaterally. [25]
Private School Private School Representative testified on behalf of Student. They are the Clinic Director and a Licensed Clinical Social Worker at Private School. They have worked at this school for over forty years.[26] Private School Representative possesses a Master’s Degree in Social Work and a New York State(N.Y.S.) license in Clinical Social Work.[27] Private School is a New York State-approved, non-public day school, that is approved to accept students with classifications of Learning Disabled, Emotionally Disturbed, and Other Health Impaired.[28] Private School Representative’s work responsibilities include supervising clinical staff, providing crisis intervention, maintaining contact with parents and the CSE, arranging for ancillary services as needed, conducting classroom observations, and consulting with school staff on students' emotional and behavioral functioning and needs.
The typical student at Private School was described as having “at least average intelligence” with a history of struggles in socialization, emotional fragility, self-regulation, or attention. The school is a high-school Regent’s based program that follows the N.Y.S. Core Curriculum.[30] All classroom head teachers have N.Y.S. certifications in special education.[31] The school employs N.Y.S. licensed staff to provide counseling, speech-language, and occupation therapy.
19
Ex. 1 and 2. 20
Tr. at 46. 21
Ex 1.
Private School Representative is familiar with Student’s special education needs from their review of Student’s records; and from communications with Student, staff, and teachers.[33] They have created an education plan individualized for Student’s different classes based on Student’s needs, especially with Student’s needs for cues, prompts, modeling, and small group instructions. [34] Student’s classes have at most twelve students, one head teacher, and one and a half assistants (12:1:1.5). [35]
The Student progressed in all areas (i.e., academic, behavioral, communication, and socioemotional) during the 2022-2023 school year, according to Parent #1 and Private School Representative. Parent #1 observed that Student: (a) increased their confidence to participate in [36] school, socialize, and handle academic challenges; (b) has increased their math skills; (c) does not avoid attending school; and (d) overall has made academic progress.[37] Private School similarly reported Student progress in academic instruction and the building of confidence. [38]
Parents executed an enrollment contract in January 2022 with Private School for the 2022-2023 school year.[39] Tuition at Private School for the 2022-2023 school year was $45,059.00.[40] The CSE committee reconvened on January 31, 2023, where it decided to fund Student’s tuition at Private School for the remainder of the 2022-2023 school year.[41] Thus, parents only seek reimbursement for the $24,782.45 they paid towards tuition for the school year prior to the DOE commencement of tuition funding. [42]
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In accepting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore, find all the witnesses and their testimonies credible. The relative weight I afford them is likewise reflected in the analysis. It is hereby noted that although the DOE cross-examined Parents’ witnesses, said cross-examination did not serve to rebut the relevant testimony in question.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, which sufficiently establish a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parents.
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[43] In New York, 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. [44]
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. When the local education [45] district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[46] 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.” The due process complaint may address “any matter relating [47] to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [48]
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to Student for the 2022-2023 school year.
In support of its case in chief, the DOE offered 13 exhibits at the hearing but did not present witness testimony. At the hearing, the DOE’s Representative argued that their evidence demonstrated that Student was provided a FAPE for the 2022-2023 school year and that the DOE offered placement in a program that would allow Student to make progress.[49] Nonetheless, the absence of any testimony from a member of the 2022 IEP team limits the impact of the DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that the 2022 IEP was tailored to meet Student's academic and other needs.
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1. However, the IEP, among other requirements, must establish annual [50] goals designed to meet the student's needs resulting from the student's disability and provide appropriate special education and services.[51] “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs,[52] offers sufficient special education services, [53] and is properly implemented. To demonstrate a FAPE, the DOE must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.”[55] In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” [56]
The testimony and documentary evidence in this action demonstrates that the recommendations in the 2022 IEP and placement recommendation at Public School denied Student with a FAPE. At the May 23, 2023 CSE meeting, the DOE was in possession of the 2021 Neuropsychological Report that expressly concluded ICT, with pull-out sessions for SETSS services, was not an appropriate placement for Student. Nonetheless, the 2022 IEP recommends ICT instruction in academic subjects, SETSS, speech-language therapy, and counsel. The DOE fails to establish why they did not accept the Neuropsychologist's conclusions or why they believed that ICT classroom would still allow Student to make academic progress, especially considering Student’s past academic struggles in the ICT setting. The 2022 IEP only mentions, without clarifying details, that the CSE considered an alternative placement of General Education or placement in a specialized school. Furthermore, the DOE does not meet its burden to demonstrate that Public School was appropriate to meet Student’s needs given the 2021 Neuropsychological Report recommendations that Student be placed in a “small program” with “students with similar struggles and academic potential.” The DOE presented no evidence that Public School was an appropriate placement [57] location. Accordingly, the 2022 IEP and DOE recommendations were not tailored to Student’s individual needs and abilities, demonstrating a denial of FAPE.
I conclude that the weight of the evidence in the records indicates a deprivation of educational benefits to the Student. Accordingly, based on the above, I hold the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
54
See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087
Prong II
As detailed herein, Parents sufficiently established that Private School was a proper placement for the Student.
A private school placement must be “proper under the Act.”[58] This means the Private School must offer an educational program that meets students’ special education needs.[59] A parent seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[60] When determining whether a unilateral placement is appropriate, the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[61] A private placement is appropriate if it provides instruction designed to meet a student’s unique needs.[62] A parent needs only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. [63]
Taken as a whole, the testimony and documentary evidence show that Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because it (1) specializes in serving students with difficulties in the acquisition of reading and writing skills and special education needs[64] and has hired teachers specially trained to do so; 65 (2) provides Student with a student-to-teacher ratio of no more than 12:1:1.5 for academic instructions; (3) individualizes instruction for the Student in education [66] instruction;[67] and (4) the Student is making objectively established progress. [68]
Private School provides services in compliance with the needs of Student. Specifically, Private School Representative and Parents have demonstrated that the Student is making educational progress.[69] Further, the DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress.
As a result of the above, I hold that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
65
Id. at ¶10-¶13.
Prong III
As detailed herein, the equities favor the Parent regarding the unilateral placement of the Student at the Private School.
The DOE Representative argued that the equities did not favor the Parent because the Parent did not meaningfully participate in the IEP process and would not accept a placement other than at Private School. On this evidence, the DOE Representative argued that Student did not require tuition reimbursement to Private School.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. “[A] major consideration in deciding whether the third factor is satisfied is whether
[70] the Parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[71] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE.
In this matter, Parents attended the 2022 IEP meeting. They engaged in a dialogue about Student’s education plan and their concerns about the 2022 IEP (specifically regarding the ICT setting not providing sufficient support). They provided a copy of the 2021 Neurologist Report to the DOE.[73] Parents provided timely “Ten-Day Notice” of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Parents detailed specific concerns regarding the [74]
Student’s special education in the “Ten-Day Notice.”[75] Furthermore, Parents notified the DOE of their intention to unilaterally place Student at Private School. [76]
Parents seek reimbursement for their Private School tuition costs. This is an available remedy under the IDEA. Parents signed a contract with Private School for the 2022-2023 school year. I
77 [78] find no issue with the reasonableness of the costs associated with Private School, including tuition. Based on the uncontested testimony of Parent #1, I find no issue with the timing of the contract execution, the decision to engage in admission evaluations at Private School, or the use of a down payment to reserve a space at a potential school. Moreover, I find that the weight of the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop an IEP and recommendation by attending the 2022 IEP meeting and providing the 2021 Neuropsychologist Report. [79]
Overall, and after considering the record, I hold that the equities sufficiently support Parents’ claim for tuition reimbursement and order the DOE to fully fund Student’s tuition to Private School for the 2022-2023 school year.
77 See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (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”).
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2022-2023 school year, and
(2) Parents’ claim for tuition reimbursement for Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The DOE shall reimburse Parents for Student’s tuition at the Private School for the 2022-2023 school year in an amount not to exceed $24,782.45 within 35 days of submission of proof of payment.
SO ORDERED.
Kevin T. McGrath
Dated: September 7, 2023
Kevin T. McGrath, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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
APPENDIX A – REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Date of Birth
REDACTED Student’s I.D. Number (OSIS)
REDACTED Parent #1
REDACTED Parent #2
REDACTED DOE Representative
REDACTED Parents Representative
REDACTED Private School
REDACTED Public School
REDACTED Private School Representative
REDACTED Neuropsychologist
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
1. Individualized Education Program 05/23/2022 28 pages District
2. IEP Meeting Attendance Page 05/23/2022 1 page District
3. Prior Written Notice 06/03/2022 5 pages District
4. Neuropsychological Evaluation 10/31/2021 32 pages District
5. DOE Psychoeducational Evaluation 06/09/2021 10 pages District
6. Social History Update 12/08/2022 8 pages District
7. Social-Emotional Assessment 05/07/2021 5 pages District
8. Classroom Observation 05/26/2021 1 page District
9. Report Card 2021-2022 2021-2022 2 pages District
10. iReady Math Diagnostic 05/12/2022 2 pages District
11. iReady Reading Diagnostic 05/27/2022 3 pages District
12. 2021Vocational Assessments 09/20/2021 3 pages District
13. Due Process Complaint 03/21/2023 4 pages District
PARENTS EXHIBITS
A. Impartial Hearing Request 03/21/2023 3 pages
B. Ten Day Notice Letter 08/24/2022 4 pages
C. Amended Ten Day Notice Letter 08/24/2022 4 pages
D. Neuropsychological Assessment 11/08/2021 31 pages
E. Individualized Education Program 01/31/2023 28 pages
F. Present Level of Performance January 2023 4 pages
G. IEP Progress Report January 2023 3 pages
H. Report Card 2022-2023 2 pages
I. Speech Report 01/23/2023 3 pages
J. Counseling Report 01/23/2023 3 pages
K. Program Description 2022-2023 11 pages
L. Schedule 2022-2023 1 page
M. Enrollment Contract 01/12/2022 1 page
N. Tuition Rates 2022-2023 1 page
O. Tuition Agreement 11/04/2022 1 page
P. Affidavit of Payment 05/31/2023 1 page
Q. Proof of Payment 2022-2023 7 pages
R. Affidavit of REDACTED August 2023 9 pages
IHO EXHIBITS
I. Prehearing Conference Summary and Order 4/25/2023 1 page IHO
II. Status Conference Summary and Order Various 6 pages IHO
III. Due Process Response 4/19/2023 3 pages IHO
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Ex. A.
[3] Id.
[4] IHO Ex. I.
[6] IHO Ex. III.
[7] See Appendix B to this Order.
[8] Id.
[10] Ex. 1.
[11] Id.
[12] Tr. at 42.
[13] Tr. at 43-45.
[14] Ex. D; Tr at 45-46. The report will hereinafter be referred to as the “2021 Neuropsychological Report.”
[15] Ex. D at pg 17.
[16] Ex. D at pg 20-21.
[18] Id.
[22] Tr. at 48-49.
[23] This allegation was raised in the DPC and remains uncontested by the DOE. The allegation is accepted as true because the DOE did not submit any documents or testimony to demonstrate the ability of Public School to appropriately support Student’s academic and social needs.
[24] Id.
[25] Ex. B and C.
[26] Id. at ¶4.
[27] Id. at ¶1-¶3.
[28] Ex. R. at ¶6-¶7
[29] Id. at ¶5.
[30] Id. at ¶8.
[31] Id.
[32] Id. at ¶11.
[33] Id. at ¶16.
[34] Id. at ¶25-¶29.
[35] Id. at ¶10.
[36] Tr. at 52-59.
[37] Id. at 52-54.
[38] Ex. R at ¶33-¶35; Ex H.
[39] Ex. M and O. An “interim agreement” was signed in January 2022, and an “addendum” was signed by Parents in November 2022.
[40] Ex. E.
[41] Ex. E; Tr. at 54.
[42] Ex. P and Q.
[43] See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[44] NY Educ. Law § 4404(1)(c).
[45] See 34 C.F.R. § 300.13.
[46] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[47] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[48] 20 U.S.C. § 1415(b)(6)(A).
[49] Tr. at 65-81.
[50] Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent. Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[51] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[52] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs.
[53] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[55] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130.
[56] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192.
[57] Ex. D at pg 20-21.
[58] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[59] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[60] Gagliardo, 489 F3d at 112 (“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.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006).
[61] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[62] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014).
[63] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[64] Ex. R at ¶4-¶7.
[66] Id. at ¶10.
[67] Id. at ¶20-¶30.
[68] Id. at ¶33-¶35; Ex H.
[69] Ex. R at ¶33-¶35; Ex H; Tr. 54-59.
[70] Gagliardo, 489 F3d at 112.
[71] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007).
[72] See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[73] Tr. at 46; Ex. D.
[74] Ex. B and C.
[75] Id.
[76] Id.
[78] Tr. at 51-52; Ex. O.
[79] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014).
[279] and model forms are available at http://www.sro.nysed.gov.