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NYSED Case # 599572 - NYC Case #248242
FINDINGS OF FACT AND DECISION
Case Number: 248242
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Service District# [REDACTED]
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 05/12/2023
Hearing Requested by: [REDACTED] (Parent)
Dates of Hearing: 09/19/2023
Record Close Date: 10/02/2023
Date of Decision: 10/02/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2023
For the Department of Education (DOE):
[REDACTED], Consultant Impartial Hearing Representative
For the Student:
[REDACTED], Esq., Law Office of [REDACTED]
[REDACTED], Parent - witness
[REDACTED], Principal of [REDACTED] – witness
INTRODUCTION
Parent, through counsel, filed a Due Process Complaint (DPC) on, or about, May 12, 2023. In the DPC, Parent alleges that the Department of Education (DOE) failed to offer Student[1] a free appropriate public education (FAPE) for the 2022-2023 school year. [2]
Parent seeks an award of tuition reimbursement for Student’s attendance at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, 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) impeded Parent’s opportunity to participate in the decision-making process; (2) created an Individualized Education Program (IEP) team which was invalidly constituted; (3) failed to consider the appropriate evaluative data for Student; (4) made inappropriate program recommendations; (5) made a school placement recommendation that was not capable of implementing the IEP services; (6) failed to follow the recommendations of those working with Student; (7) created goals which are vague and immeasurable; and (8) failed to include adequate IEP transition goals to prepare Student for life post-high school.[3]
As detailed below, I hold: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2022-203 school year; (b) Private School offers Student specially designed instruction sufficient to meet Student’s needs; and (c) the equities support Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on May 15, 2023. DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on June 13, 2023, and a Prehearing Conference Summary and Order was issued the same day.[4] A Status Conference was held on August 15, 2023 and a Status Conference Summary and Order was issued the same day.[5]
A merits hearing was held before me on September 19, 2023. At the hearing, DOE Representative produced four (4) exhibits, all admitted into the record without objection.[6] Also, at the hearing, Parent’s Representative presented 14 exhibits, all admitted into the record without objection.[7] Both parties made opening statements, and the DOE Representative waived presenting any witness testimony. Parent and Private School Representative[8] appeared to provide testimony supporting Student, and the DOE cross-examined the witnesses. The parties made closing statements and rested their cases.
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. Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student presents with “Autism.” In addition, Student has social, academic, and behavioral delays; anxiety; and[9] behavior problems caused by frustration.[10]
Parent attended the March 10, 2022 IEP (2022 IEP) meeting and participated in developing the IEP for the 2022-2023 school year.[11] A Private School employee also participated in the IEP meeting to support the Student.[12] The 2022 IEP recommended that Student receive: (1) placement at a NYC DOE specialized school (District 75); (2) be educated in a classroom with 12 students, one teacher, and one assistant (12:1+1); (3) counseling services one time a week for 30 minutes in an individual setting and also in a group setting (1x30 group); (4) occupational therapy, one time a week for 30 minutes in an individual setting (1x30 1:1); (5) physical therapy, one time a week for 30 minutes in an individual setting (1x30 1:1); (6) speech-language therapy, one time a week for 30 minutes in an individual setting (1x30 1:1); and (7) parent counseling and training.[13]
At the 2022 IEP meeting, Parent argued against placement in a 12:1+1 classroom as this setting would be too large to provide Student with the level of individualized support and small group instruction which they believe Student requires. Additionally, Parent argued the IEP failed to contain adequate transition goals to prepare Student for life after high school.[14] Private School Representative’s professional opinion is[15] that the 2022 IEP was not appropriate to support Student because: Student required a small school setting; required a significant amount of 1:1 support and instruction that would not be available in a 12:1+1 setting; contains vague goals that also fail to address all areas of needs for Student; fails to address any vocational training or transition planning; and the IEP lacks sufficient goals and management needs to address Student’s behavioral and social/emotional needs which impact Student’s ability to learn.[16]
Parent received the school location letter and prior written notice (PWN) dated June 3, 2022.[17] Parent’s first attempt to tour the school was unsuccessful as no DOE employees were available.[18] During the ultimate visit, they met with the Parent Coordinator, who could not provide Parent with an in-person or virtual tour. Based on the conversations with the Parent Coordinator, Parent determined that the class for Student would contain children with varying academic and behavioral needs and that the school could not provide Student with appropriate vocational and life skills training.[19] On August 24, 2022, Parent sent the DOE a “Ten-Day Notice” (TDN) stating their intent to unilaterally enroll Student at Private School if they could not agree on Student’s placement.[20]
Private School
Private School Representative provided testimony regarding the curriculum and Student’s progress at Private School during the 2022-2023 school year. Private School Representative is the principal of the “upper school” at Private School.[21] They possess a Master's Degree in Special Education and a New York State Certification in Special Education.[22] Private School Representative’s responsibilities include: supervising all school programs; developing the school curriculum; supervising teachers and service providers; handling admission assessments, observing classrooms; working directly with teachers and students; and overseeing and supervising the vocational training program.[23]
Private School services students who “cannot function in the mainstream” and need additional services to benefit from academic, life skills, and social skills instruction and “who often have an IEP classification of Learning Disabled, Speech Impaired, Autism, and Intellectually Disabled.”[24] The school has enrolled approximately 120 students from kindergarten to age 21, and the upper school program enrolls approximately 50 students ages 13 to 21.[25] Student’s teachers for the 2022-2023 school year either held or were obtaining a Master’s degree.[26] The service providers are licensed by the State of New York.[27]
Private School Representative is familiar with Student’s special education needs from observing Student in class and from Student’s prior years attending Private School.[28] Student required significant individualized support to address the constellation of issues.[29] Student is placed in a class of 10 students, one teacher, and one assistant (10:1+1).[30] The teachers and service providers employ specific strategies to support Student’s academic learning, and Student requires 1:1 support to address their behavior issues.[31] The education at Private School contains an element of religious instruction for approximately 13% per school week.[32]
According to Parent and Private School Representative, the Student progressed in all areas (i.e., academic, behavioral, communication, and socio-emotional) during the 2022-2023 school year.[33] Parent observed that during the 2022-2023 school year, Student made progress at Private School.[34] Private School Representative also reported Student made progress by: improving their English ability to an “end of 8th-grade level;” made progress towards their writing goals and learning to cite textual evidence to support analysis of text and drawing inferences; improving math skills to a “9th-grade level;” learning vocational skills such as presenting themselves professional and learning soft skills of customer service and data entry; and improving their ability to self-regulate.[35] The record does not show that the DOE Representative’s cross-examination made a significant challenge or dispute to the witnesses’ opined academic, behavioral, communication, or social-emotional improvement.
Parent executed an enrollment contract with Private School for the 2022-2023 school year.[36] Tuition at Private School is $98,000.[37] Parent paid $4,000 towards the tuition for 2022-2023 school year.[38] The enrollment contract contains a provision allowing for the release from the agreement if Parent accepts an appropriate public-school placement.[39] Parent acknowledges they remain responsible for the total tuition regardless of a due process hearing’s outcome.[40] Parent states it would be a financial hardship for them to fund the tuition at Private School directly.[41]
Credibility
I determine the following upon considering the evidence, including all admitted documents and witness testimonies. In accepting the documents, I find them all relevant and representative of the facts. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt their veracity or the earnestness for the opinions offered, and therefore find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, which establish a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parent.
A school district must pay for the cost of a student’s tuition at a private school if the Burlington/Carter’s three-prong test is satisfied, in that: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[42] 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.[43]
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.[44] When the local education 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.[45] To meet its substantive FAPE obligations, a school 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.”[46] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[47]
Prong I
As detailed herein, the DOE did not establish a FAPE was provided under Prong I standard to Student for the 2022-2023 school year.
In support of its case in chief, the DOE offered four (4) exhibits at the hearing but did not present witness testimony. At the hearing, the DOE’s Representative argued that their documentary 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 the Student to make progress.[48] Nonetheless, the absence of any testimony from IEP team members mitigates against DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that the 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.[49] However, the IEP, among other requirements, must establish annual goals designed to meet the student's needs, resulting from the student's disability, and must provide appropriate special education and services.[50] “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs,[51] offers sufficient special education services,[52] and is properly implemented.[53] 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.”[54] In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[55]
The testimony and documentary evidence demonstrate the 2022 IEP denied a FAPE to Student because the CSE (1) did not consider the recommendations of Parent and Private school denying Parent the ability to meaningfully participate in the decision-making process; (2) did not show Public School was capable of implementing the IEP or that Student could make progress in a District 75 school; and (3) failed to make any provision for transitional services for Student.
Firstly, the DOE fails to show they properly considered the input from Parent. Procedural violations in the formation of an IEP do not automatically entitle a parent to reimbursement, but may if “they ‘impeded the child's right to a [FAPE],’ [or] ‘significantly impeded the parents' opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits’."[56] The cumulative effect of multiple procedural violations may constitute a denial of FAPE, even if the violations considered individually do not.[57]
In this action, Parent’s unimpeached and unchallenged testimony establishes that they expressed their concerns about the recommended class size and proposed placement at a District 75 at the IEP meeting.[58] Additionally, a representative from Private School attended the IEP meeting. However, the IEP states that Parent and “school” had “no concerns” regarding the IEP recommendation.[59] The DOE does not explain the discrepancy between the testimony and IEP. Regarding the “other options considered,” the 2022 IEP simply comments that a “15:1 will not adequately address student’s needs” and “8;1:1 is too restrictive at this time (sic).” The statement’s simplicity and spartanism are inadequate to show what factors were considered by the CSE or evaluated to reach the IEP’s recommendations.
The DOE's failure to properly consider Parent’s input is also demonstrated by the absence of any IEP discussions regarding the documents presented to the CSE. The 2022 IEP and PWN do not indicate that the IEP team considered the psychoeducation assessment or fall 2021 progress report.. While listed as documents considered, the IEP does not make any reference to the suggestions or educational opinions that may be in these documents. The DOE failed to provide these supporting documents at the hearing despite their legal burden of production and persuasion. Accordingly, the DOE does show that the IEP comports with Parent’s, teacher’s, or the expert’s education opinions and recommendations.
In conclusion, I find that DOE denied Parent meaningful participation due to the IEP’s failure to record the Parent's concerns; the IEP’s failure to discuss the findings of the psychoeducation assessment and teacher’s recommendations; and the DOE's simplistic rejection of placement options. Parent’s right to participate is not merely the right to speak, especially where, as here, the record is devoid of evidence that the CSE meaningfully considered Parent’s proposed placement.
Secondly, the DOE fails to show that they created an IEP to meet Student’s individual needs. The 2022 IEP references Student suffering from anxiety and being placed in a 10:1:1 at a school that supports approximately 50 high school-aged students. Despite these comments, the 2022 IEP fails to discuss or show how the Student is expected to continue progressing academically, socially, and emotionally in a larger class size and new school setting. Parent’s unchallenged testimony also establishes that the new Public-School classroom would include students with varying academic and behavioral needs.[60]
Finally, the DOE failed to provide a FAPE to student due to the absence of any transition planning in the 2022 IEP. The IEP references Student being enrolled in a culinary course as part of vocational training; that Parent wants vocational training to continue in high school; and references to the current career training at Private School. Nonetheless, the 2022 IEP’s “Measurable Postsecondary Goals” section is blank. The DOE fails to defend or explain the lack of postsecondary school planning. As such, this absence of vocational planning further demonstrates a denial of FAPE.
As detailed above, the evidence demonstrates that Student was denied a FAPE for the 2022-2023 school year.
Prong II
As detailed herein, Parent sufficiently established that Private School was a proper placement for Student.
A private school placement must be “proper under the Act.”[61] This means the Private School must offer an educational program that meets students’ special education needs.[62] A parent seeking tuition reimbursement has the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.[63] 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.”[64] A private placement is appropriate if it provides instruction designed to meet a student’s unique needs.[65] The parent must also 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.[66]
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” to the Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because they: (1) have hired specially trained teachers to educate students with difficulties in the acquisition of reading and writing skills and with special education needs;[67] (2) provide the Student with a student-to-teacher ratio of 10:1 for academic instruction, and 1:1 intervention to support their anxiety and learning challenges, which, in turn, appropriately supports the Student’s learning needs;[68] (3) individualizes instruction for the Student in education instruction;[69] (4) provides vocational training and support;[70] and (5) have shown Student is making objectively established progress.[71]
Private School provides education services to address the individual needs of Student. Specifically, Private School Representative and Parent have demonstrated that Student is progressing academically. Further, DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress.
Accordingly, I hold that Parent has met their burden in proving that Private School offered an educational program that met Student’s needs under the Burlington/Carter Prong II standard.
Prong III
As detailed herein, the equities favor Parent under the third Burlington/Carter standard.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition.[72] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[73] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notifying the DOE about the unilateral placement decision.[74]
In this matter, Parent attended the 2022 IEP meeting. They discussed Student’s education plan and their concerns about the 2022 IEP (specifically regarding the District 75 setting and 12:1+1 classroom not providing sufficient support).[75] Parent toured Private School to inspect and inquire about services and class structure being offered and communicate with school employees to discuss Student’s education needs.[76] Parent timely provided the DOE with their concerns about the DOE's failure to offer Student a FAPE in the TDN.[77] Furthermore, the DOE was timely notified of Parent’s intention to place the Student at Private School unilaterally.[78]
Parent seeks reimbursement for their Private School tuition costs. This is an available remedy under the IDEA.[79] Parent signed a contract with Private School for the 2022-2023 school year.[80] Parent remains liable for all tuition if a claim under IDEA were unsuccessful.[81] The evidence demonstrates Parent would suffer a financial hardship without the DOE directly funding the unpaid portion of Private School’s tuition.[82] I find the costs associated with Private School, including tuition, are reasonable. Moreover, I hold that the evidence establishes that Parent cooperated with the DOE and the CSE’s efforts to develop the 2022 IEP and recommendations, such as by having representatives from Private School attend the IEP meeting; providing the CSE Private School’s progress updates; and investigating the DOE’s recommended placement location.[83]
Tuition Reduction based on religious instruction
It is uncontested that Private School’s services involve approximately 13% of religious instruction per school week.[84] Parent’s Representative consents to a reduction of Private School’s tuition by this amount.
The IDEA’s intent is to authorize reimbursement for the cost of private special education services when a school district fails to provide a FAPE.[85] Further, Courts have held that while the ultimate decisions about a disabled child's education “rest in the hands of the parents, this right is not absolute.”[86] The Court continued to state that: "[I]n opting unilaterally to place [the child at a private Jewish school], though he was otherwise entitled to receive a [FAPE], [the parents] must accept that public monies will not fund it."[87] Similarly, here, Parent unilaterally selected a program that contains a significant portion of daily religious instruction, and the funds intended under the IDEA for special education instruction should not be used to subsidize this instruction. Accordingly, the award relating to the Private School tuition shall be reduced by the amount of religious instruction (13% of the 98,000 per year tuition = 12,7400). As such, the reimbursement for tuition to Private School will be reduced by $12,740, equaling to a tuition reduction to $85,260.
After considering the record, I hold that the equities sufficiently support Parent’s claim for tuition reimbursement and order the DOE to fund Student’s 2022-2023 school year tuition at Private School, minus the reduction for religious instruction.
ORDER
NOW, THEREFORE, BASED ON 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) Parent’s claim for tuition reimbursement or Student’s unilateral placement at Private School is GRANTED for the 2022-2023 school year.
a. The DOE shall reimburse Parent for Student’s tuition at Private School for the 2022-2023 school year in an amount not to exceed $4,000.00 within 35 days of receiving invoices from Private School or Parent.
b. The DOE shall directly fund to Private School any 2022-2023 school year outstanding tuition balance in an amount not to exceed $81,260 within 35 days of receiving invoices from Private School or Parent.
So Ordered.
Kevin T. McGrath
Dated: October 2, 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 279 and model forms are available at http://www.sro.nysed.gov.
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 |
| [REDACTED] | DOE Representative |
| [REDACTED] | Parent’s Representative |
| [REDACTED] | Private School |
| [REDACTED] | Private School Representative |
| [REDACTED] | Public School |
| [REDACTED] | Parent Coordinator |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Due Process Complaint (DPC) | 05/12/2023 | 4 |
| 2 | Prior Written Notice (PWN) | 05/03/2022 | 4 |
| 3 | School Location Letter (SLL) | 05/03/2022 | 4 |
| 4 | IEP 2022-2023 SY | 03/10/2022 | 18 |
PARENT’S EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Due Process Complaint | 05/12/2023 | 3 |
| B | Findings of Fact and Decision | 05/04/2023 | 13 |
| C | Parent Letter | 08/24/2022 | 3 |
| D | Contract | 22-23 | 1 |
| E | Payment affidavit | 08/22/2023 | 1 |
| F | Proof of payments | 22-23 | 6 |
| G | FACTS statement | 22-23 | 2 |
| H | Federal 1040 form | 2020 | 3 |
| I | Program description | N/A | 1 |
| J | Schedule | 23-24 | 1 |
| K | Progress report | Fall 2022 | 2 |
| L | Progress report | Spring 2023 | 2 |
| M | Parent testimony affidavit | 09/12/2023 | 3 |
| N | School witness testimony affidavit | 09/10/2023 | 6 |
IHO EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I | Prehearing Conference Summary and Order | 06/13/2023 | 1 |
| II | Status Conference Summary and Order | 08/15/2023 | 4 |
| III | Pendency Order | 06/27/2023 | 2 |
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.
[5] IHO Ex. II. A Status Conference has been scheduled for July 18, 2023, but adjourned, and updates were provided by email.
[6] See Appendix B to this Order.
[7] Id.
[8] During their testimony, the witness identified a typographical error in ¶32 of Ex. N (their affidavit).
[9] Id.
[10] Ex. M at ¶3.
[11] Id. at 5.
[12] Ex. 4 at pg 18.
[13] Ex 4.
[14] Ex. M at ¶7-8.
[15] Ex. M details the academic and work experiences of Private School Representative. Given the witness’s extensive academic training and experiences in the field of special education, I find they qualify to provide professional opinions in the area.
[16] Ex. M at ¶37.
[17] Ex. M at ¶9; Ex. 2; Ex. 3.
[18] Ex. M. at ¶9.
[19] Ex. M at ¶9. These allegations were raised in the DPC and remain uncontested by the DOE. The allegations are accepted as true because the DOE did not submit any documents or testimony to demonstrate a dispute on the issue.
[20] Id. at ¶10; Ex. C.
[21] Ex N at ¶2.
[22] Id. at ¶1.
[23] Id. at ¶3.
[24] Id. at ¶4-6.
[25] Id. at ¶16.
[26] Id. at ¶13.
[27] Id. at ¶8.
[28] Id. at ¶9-10.
[29] Id. at ¶12-15.
[30] Id. at ¶16.
[31] Id. at ¶12-15.
[32] Id. at ¶38. Parent’s Representative consents to a reduction of any award by the 13% associated with religious instruction.
[33] Ex. K; Ex. L.
[34] Ex. M at ¶11.
[35] Ex. N at ¶21-32.
[36] Ex. M at ¶15; Ex. D.
[37] Ex. M at ¶14; Ex. E.
[38] Ex. M at ¶27; Ex. E.
[39] Ex. M at ¶16; Ex. D.
[40] Ex. M at ¶16.
[41] Ex. M at ¶17; Ex. H.
[42] 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).
[43] NY Educ. Law § 4404(1)(c).
[44] See 34 C.F.R. § 300.13.
[45] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[46] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[47] 20 U.S.C. § 1415(b)(6)(A).
[48] Tr. at 23-24.
[49] Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent.l 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”).
[50] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[51] 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.
[52] 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.
[53] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[54] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130.
[55] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192.
[56] R.E. v. N.Y.C. Dept. of Educ., 694 F3d 167, citing 20 USC §1415(f)(3)(E)(ii).
[57] See Werner v. Clarkstown Cent. Sch. Dist., 363 F Supp 2d 656, 659 (SDNY 2005).
[58] Ex. M at ¶7.
[59] Ex. 4 at pg 1.
[60] Ex. M at ¶9.
[61] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[62] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[63] 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).
[64] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[65] 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).
[66] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[67] Ex N at ¶8 and ¶16.
[68] Id. at ¶12-15.
[69] Id. at ¶18-27.
[70] Id. at ¶28-31.
[71] Id. at ¶18-27; Ex. K: Ex. L.
[72] Gagliardo, 489 F3d at 112.
[73] Bettinger v. N.Y.C Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY 2007).
[74] See D.A. v. N.Y.C. Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[75] Ex. K at ¶9, and ¶11; Ex. 1.
[76] Ex. M at ¶9; Ex. C.
[77] Ex. M at ¶10; Ex. C.
[78] Id.
[79] See Mr. and Mrs. A. v. N.Y.C. Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (The 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”).
[80] Ex. M at ¶14-16.
[81] Ex. M at ¶14-16; Ex D.
[82] Ex. M at ¶17; Ex. H.
[83] 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).
[84] Ex. N at ¶38; Tr. at 70-71.
[85] See Forest Grove, 557 U.S. at 247; Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78 (Dist. Conn 2012).
[86] See Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78, citing J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606 (SDNY 2011).
[87] Id.