NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/15/2023
For the Student:
• [REDACTED], Esq., Attorney for Petitioner
• [REDACTED] (Parent)
• [REDACTED], Supervisor of [REDACTED]
For the Department of Education:
No Appearance.
INTRODUCTION, PROCEDURAL HISTORY & JURISDICTION
A) Introduction and Procedural History
The parent filed a Due Process Complaint (DPC) against the district on 5/19/2023.[1] The DPC alleges violations of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law, resulting in a denial of a free appropriate public education (FAPE) for the 2021/2022 school year based on the district’s failure to convene the Committee of Special Education (CSE), create an IEP and provide a school placement prior to the start of that school year. The parent served a Ten-Day Notice (TDN) notifying the district of her intention to unilaterally place the student in a private school and seek tuition reimbursement.[2] The district served a response to the due process complaint. 3 The response indicates that the last operative IEP is dated 10/07/2020 and that neither a prior written notice (PWN) nor a school location letter (SLL) was provided to the parent. 4
A prehearing conference was held on 06/28/2023. The parties appeared by their counsel, and the due process hearing was scheduled for 08/15/2023 from 10:00 A.M. to 12:00 P.M.[5] The parent timely served disclosure on 08/08/2023. The district did not serve disclosure.
The parent and her attorney appeared for the hearing at the scheduled time. At 10:04 P.M., the tribunal emailed the district requesting that the attorney connect to the hearing.[6] The hearing commenced at 10:15 A.M. without any response to the email or an appearance by the district.[7] Therefore, the tribunal did not adjourn the hearing as the parent’s witnesses were ready to proceed. The hearing ended at 12:00 P.M. without an appearance by the district. [8]
The parent’s exhibits were admitted into evidence.[9] The parent presented an opening statement.[10] The supervisor of the private school[11] and parent[12] were sworn in as witnesses and provided testimony in response to clarifying questions by the tribunal. The parent rested and presented a closing argument. [13]
B) Jurisdiction
The undersigned, a certified New York State Special Education Impartial Hearing Officer (IHO), is employed by the New York City Office of Administrative Trials and Hearings and was appointed to adjudicate this hearing on 05/22/2023 pursuant to the IDEA, Article 89 of the Education Law, and the Federal and State implementing regulations. The undersigned meets all the qualifications and requirements outlined in the Federal and State statutes that grant me the authority to adjudicate this hearing. [14]
ISSUES
The parent seeks a final order declaring that the district denied the student a FAPE for the 2021/2022 school year because (a) the operative IEP at the time of the unilateral placement dated 10/07/2020 was not tailored to the student’s unique needs and recommended an inappropriate educational placement, and (b) the district failed to reconvene the CSE and create an IEP for the 2021/2022 school year and offer the student an appropriate school placement in response to the parent’s TDN. The parent also seeks a full award of $95,000.00 15 for direct retrospective tuition funding to the private school since the equities are in her favor.
FINDINGS OF FACT
(a) Credibility Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, the tribunal has found the evidence relevant and representative of the facts for which they were offered. The weight afforded will be reflected in the analysis. As for the witnesses, there is no reason to doubt the veracity of their statements or the earnestness of their relevant opinions. Therefore, the tribunal finds the witnesses and their respective testimonies credible. The relative weight afforded to the evidence will likewise be reflected in the analysis.
(b) Prong I - The district denied the student a FAPE for the 2021/2022 school year.
The student was [REDACTED] years old, in the sixth grade, with a disability classification of Learning Disability for the 2021/2022 school year.[16] The last operative IEP for the student was dated 10/07/2020 when he was in the fifth grade. 17 On 08/16/2021, the parent notified the CSE that, as of that date, she had not received a proper or adequate placement for the student and intended to unilaterally place him in a private school. 18 The 10/07/2020 IEP indicates that the student was evaluated with Envision Mathematics, Fountas & Pinnell Reading Assessment, and unspecified writing assessments, all of which determined that the student was performing below grade level.19 The IEP also indicates that by the end of the fourth grade, the student stagnated in mathematics and writing at the second-grade level and regressed in reading from a second-grade level to a first-grade level.20 The supervisor of the private school credibly testified that this stagnation and lack of progress continued through the fifth grade.
The supervisor testified that “the description of his grade levels and acquisition of information was pretty accurate, and how he struggled. The word ‘struggle’ you see multiple times throughout the IEP, and it describes all the management needs extensively, his behavioral challenges, in addition to his academic challenges, as well as his social challenges.”[21] However, despite the student’s extensive struggles and challenges academically, emotionally, and behaviorally, the CSE did not recommend a behavior intervention plan. Further, the supervisor credibly testified that, in her opinion, the co-teaching class in a general education class would “be a total waste” due to the student’s inability to (a) transition from class to class and (b) focus and attend in a class of that size, especially without a behavior intervention plan.[22] The tribunal finds that in light of the student’s significant behavioral deficits, the recommended coteaching class was an inappropriate placement for the student, constituting a denial of FAPE.
The tribunal also finds that (a) the failure to reconvene the CSE, evaluate the student, create an IEP, and offer a school placement in response to the parent’s TDN prior to the start of the school year and (b) the failure to thereafter conduct an annual review in 10/2021 denied the parent a meaningful opportunity to participate in the educational process, culminating in separate denials of FAPE to the student for the 2021/2022 school year.
In sum, the 10/07/2020 IEP, as the operative IEP at the time of the unilateral placement by the parent, was neither specifically tailored to the student’s unique needs nor reasonably calculated to provide the student with the ability to access the curriculum and derive an education benefit.
(c) Prong II - The Private School is the student’s appropriate placement.
1) Description of the Private School The private school is designed to meet the specialized educational and clinical needs of students with behavioral, academic, and language deficits[23] in a small, structured, supportive environment, i.e., nine students,[24] a licensed special education teacher, and two teacher assistants.[25] For shared instruction, the students were broken into groups of three, with one teacher and two assistants.[26] The private school implements the Common Core General Education Curriculum with adaptations and multi-modality teaching models to adapt the curriculum to the student’s unique needs. [27]
The private school is housed in a general education building, which provides opportunities for the student to interact with typically developing peers.[28] This affords the student the opportunity to generalize social skills outside of the special education classroom. [29]
2) The Student’s Behavior
The private school conducted a Functional Behavioral Analysis (FBA) to identify the behaviors impeding his capacity to learn and the functional purpose. Thereafter, the private school created a treatment plan with incremental goals, as well as proactive, instructional, and reactive strategies to improve functional communication. [30]
Specifically, the private school devised replacement behaviors, strategies, and techniques to help the student use words instead of behavior to satisfy his needs, reduce frustration levels, and remain on task.[31] The school collects data throughout the day using the “Rethink” system. This system allows the private school to track and identify trends in the student’s behavior in different environments with different providers and teachers “in real time” on an hourly basis.[32]
The student has made meaningful behavioral progress. The student’s problematic behaviors have reduced in frequency and duration, and he has become more self-aware of his behaviors. Also, the student is now able to engage and reengage in a task. Previously, the student could not remain seated and was easily overwhelmed by a task. This frustration resulted in low self-confidence, the need for constant stimulation, and withdrawing internally into his “own world” while making moaning and groaning noises without awareness of the disturbance he was creating in the classroom. [33]
3) The Student’s Academics
Upon entering the private school in 09/2021, the student (a) struggled with forming coherent and complete sentences, (b) could not form an appropriate response to instructions or requests, (c) would read and speak quickly in a flat manner, without language convention, (d) misread, mispronounced and guessed while reading due to a lack of decoding and phonemic skills, (e) would “mumble through paragraphs” despite the use of picture cues, (f) could not understand himself or recall words, and (g) lacked organizational skills. These challenges carried over into the other content areas.[34]
Through the use of the Wilson Foundations, Voice-over applications, and the Explode the Code Program, the student’s encoding, decoding, comprehension, and vocabulary retention improved. The private school also employed the use of highinterest, low-readability materials to engage the student, picture cues, color-coded instructions broken into small increments, and repetition to reinforce the student’s learning. As a result, the student made a full grade level of progress at the private school by the end of the 2021/2022 school year.[35] In reading, the student advanced from a second-grade reading level to a third-grade level and from a third-grade listening level to a fourth-grade level. [36]
Next, prior to any content lesson, there is a primary lesson on decoding, chunking, and segmenting materials, prompting, 3D models and props, and picture cues to reinforce content information. This aids the student to independently “read to learn.” This type of primary/pre-lesson could not be performed in a general education classroom such as the one recommended in the 10/07/2020 IEP due to an inadequate staffing ratio.[37] This is only possible in the 9:1:1 or 9:1:2 classroom. The private school integrates literacy strategies across the curriculum. [38]
Accordingly, the private school is an appropriate placement for the student as it provides a program uniquely tailored to his individual educational and behavioral needs.
(d) Prong III - The Equities favor the parent. The parent served a ten-day notice (TDN) on 08/16/2021 39 and signed the contract enrolling the student in the private school on 08/17/2021. 40 The district did not reconvene the CSE or otherwise respond to the TDN prior to the start of the 2021/2022 school year to address the parent’s concerns. The district was on notice that the parent took issue with the appropriateness of the IEP and the continued placement in a co-teaching class for the 2021/2022 school year in a district school.
CONCLUSIONS OF LAW & ANALYSIS
(a) Burdens of Proof, Persuasion, and Production – The Burlington/Carter
Analysis
The mechanics of decisions in tuition reimbursement and direct funding cases has evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. When considering an award for tuition reimbursement and funding in favor of the parents, a tribunal must use this framework to determine that (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s 39 P-H alternative private placement is appropriate to meet the student’s needs, and (3) the equitable considerations support the claim.
The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the IDEA, except in cases where the parent is seeking tuition reimbursement and direct funding for a unilateral placement. In the latter scenario, the parent or guardian only has the burdens of persuasion and production on the appropriateness of such placement (Prong II).[41] The party who carries the burden must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[42] i.e., evidence that is of greater weight or more convincing than the evidence offered in opposition thereto. [43]
“The IDEA does not specify default as the penalty for the failure to serve an appropriate response to the Due Process Complaint Notice because the response is a mechanism to guarantee meaningful parental participation in the student placement process.”[44] An order granted on default would subvert the administrative process and place the student without regard to the evidence of their actual needs.[45] The failure to serve a response to the DPC [or a PWN] is a procedural violation and is only actionable if it affects the student’s substantive rights.[46] This is because the intent of the IDEA is to ensure an “appropriate education,” and not one that provides everything desired by the parent.[47] Therefore, an IHO or Court must thoroughly examine the record even when the district defaults.
Here, the district defaulted by failing to (a) appear at the due process hearing, and (b) offer evidence to defend Prong I and III or rebut the parent’s direct case on Prong II. After a thorough review of the record and in accordance with the findings of fact stated above, the district has failed to meet its burdens of production and persuasion on Prong I and II and in rebuttal to Prong III.
(b) Prong I – Free and Appropriate Public Education The purpose of the IDEA[48] is to provide a FAPE tailored to the unique needs of the handicapped student through an IEP.[49] A tailored FAPE consists of specifically designed instruction that must meet the child’s unique needs in all educational aspects during classroom instruction[50] and prepare them for further education, employment, and independent living.[51] This includes personalized instruction with sufficient related and other supportive services to assist the student in benefiting from special education to derive an educational benefit, achieve passing marks, and advance grade to grade. [52] This personalized instruction must also “be appropriately ambitious in light of [the student’s] circumstances”[53] to (a) “enable the student to be involved in and make progress in the general education curriculum”[54] and (b) open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression,”[55] or only “trivial advancement.” [56]
To satisfy its obligations under the IDEA, the local school districts must implement extensive procedural requirements to protect the rights of the parents and student, including the right (a) to be notified of a change in the student’s educational placement or the provision of a free appropriate public education,[57] and (b) to be provided with “a large measure of participation at every stage of the administrative process.”[58] In sum, a Court or IHO must conduct a two-prong analysis, i.e., whether the school district complied with the procedural requirements in the IDEA and b) whether the IEP as developed is reasonably calculated to enable the child to receive educational benefits. [59]
Here, based on the student’s cognitive and behavioral deficits and a history of stagnation and regression, the recommendation by the district of a co-teaching class in a non-special education placement without individualized 1:1 and small group instruction constituted a denial of FAPE.[60] The district did not offer (a) evidence that the 10/07/2020 IEP was uniquely tailored to meet the student’s needs or (b) a cogent explanation for the recommendations therein.[61] By contrast, the private school supervisor’s testimony established that the 10/07/2020 IEP and the recommended coteaching class could not meet the student’s needs. [62]
The tribunal holds that the district’s failure (a) to reconvene the CSE, (b) to create an appropriate IEP, and (c) to offer an appropriate school placement in response to the parent’s TDN are the factors that constitute a denial of FAPE to the student. [63]
(c) Prong II – Appropriate Unilateral Placement The parents have the burden to establish by a preponderance of the evidence [64] that the chosen unilateral placement is appropriate, i.e., that it provides educational instruction specifically designed to meet the student’s unique special education needs. [65] However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[66] The parents must demonstrate that the private school placement is reasonably calculated to enable the child to receive educational benefits to likely produce progress, not regression. [67]
Therefore, “[n]o 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 prove that a child is receiving an educational benefit. Still, courts assessing the propriety of a unilateral placement must 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.” [68]
The small, structured, and supportive environment with a 9:1:1 class ratio, multi-sensory teaching programs, 3:1:2 small group instruction, modification of the Common Core Curriculum, a behavior treatment and modification plan, and the student’s demonstrated progress establishes that the private school offers the student a FAPE consisting of specifically designed instruction tailored to the student’s unique academic and social-emotional needs.[69] The private school has demonstrated that the student made one full grade-level of progress and improved across all domains in the 2021/2022 school year. [70]
(d) Prong III – Equities (Tuition Reimbursement) Once the parent establishes the appropriateness of the unilateral placement, "the courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[71] In making that equitable determination, a hearing officer may consider many factors, i.e., a) whether a parent’s unilateral withdrawal of the student from the public school was justified[72] and with adequate notice to the district,[73] b) whether the amount of private school tuition was reasonable, c) whether a parent availed themselves of need-based scholarships or other financial aid from the private school and d) whether there was any fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect. [74]
In New York, the district must prove that the equities do not favor the parent. [75] Still, the parents must identify the specific remedy they seek so that the IHO can craft an appropriate award.[76] The need to specify a remedy is akin to a pleading requirement to provide the district with fair notice of the claim and an opportunity to prepare a defense.77 If the district meets this burden, the burden of proof does not shift to the parent. However, absent rebuttal evidence by the parent, the hearing officer will be constrained to find for the district.
After considering the relevant equitable factors and without evidence to the contrary, the tribunal holds that (a) the parent’s unilateral withdrawal of the student from the public school was justified78 and with adequate notice to the district, [79] b) $95,000.00 for the private school tuition is reasonable, c) need-based scholarships or other financial aid from the private school were not available and d) there is no fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect. [80] The parent assumed the unconditional obligation to pay the tuition. [81]
ORDERS
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Respondent/District denied the student a free appropriate public education for the 2021/2022 school year, and it is further
ORDERED that the Petitioner/Parent’s request for direct retrospective tuition funding for the private school for the 2021/2022 school year is GRANTED, and it is further
78 E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
ORDERED that the Respondent/District shall remit payment in the amount of $95,000.00 directly to the private school for the tuition within 35 days of this order.
Dated: September 20, 2023 SO ORDERED
Teresa R. Nuccio, 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.
APPENDIX A
REDACTIONS
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Parent: [REDACTED]
Principal: [REDACTED]
Private School: [REDACTED]
APPENDIX B – DOCUMENTS IN EVIDENCE
PARENT DESCRIPTION DATE PAGES
EXHIBIT
A. Request for Due Process Proceeding and Notice of Appearance 05/18/2023 6 pages
B. IEP 10/07/2020 20 pages
C. Student Contract, Program Description, and Curriculum 08/17/2021 17 pages
D. Affirmations regarding Tuition Breakdown and Payments 08/08/2023 2 pages
E. Curriculum Schedule 2021-2022 1 page
F. Student Attendance 2021-2022 1 page
G. Assessments, Plans, and Reports Various 27 pages
H. Ten Day Notice 08/16/2021 2 pages
IHO DESCRIPTION PAGES
EXHIBIT
I. Due Process Response 05/30/2023 3 pages
II. Amended Pre-Hearing Conference Order 06/28/2023 7 pages
III. Email Chain Re: Due Process Hearing scheduled for 08/15/2023 06/30/2023 08/15/2023 06/28/2023 3 pages
Footnotes
[1] P-A
[2] P-H
[5] IHO-II:1
[6] IHO-III:1
[7] Transcript Cover Page
[8] Tr.69
[9] Tr.5-6
[10] Tr.7-10
[11] Tr.12
[12] Tr.54
[13] Tr.62-69
[14] 20 U.S.C. § 1400 et seq., Education Law § 4404 et seq., 34 C.F.R. § 300 et seq.; and 8 NYCRR § 200.5 et seq., 15 The tuition is $100,000.00.However, the parent is only requesting an award of $95,000.00 which represents a $5,000.00 reduction for that portion of the tuition apportioned to religious instruction (Tr.9-10).
[16] P-B:1, Tr.16:4-10
[21] Tr.25:8-23
[22] T26:4-25
[23] Tr.13
[24] Tr.40:8-18
[25] Tr.16-17
[26] Tr.40:8-18
[27] Tr.13:22-25, 14:1-5, and pp.31-32
[28] Tr. pp.13-15; 41-42
[29] Tr.15
[30] P-G:pp.2-17
[31] Tr.27-29
[32] Tr.28-29
[33] Tr.17-19
[34] Tr.19-22
[35] Tr.29-36; 47-48; and see P-G:pp.18-27
[36] Tr.38-39
[37] Tr.38-43
[38] Tr.46
[41] R.E. v. New York Dep’t of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; and New York Education Law §4404[1][c]. It is noted that the plain language of the statute is silent as to the burden of proof with respect to the equities and only speaks to the parent’s burden vis-à-vis the appropriateness of the unilateral placement. However, although R.E. v. New York Dep’t of Educ., holds that the parent has the burden on Prong III, this holding relies on Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005] which was decided prior to the amendment of New York Education Law §4404[1][c] in 2007. Compare, Archive 2007 [L.2007, ch 378, § 19, eff. 06/30/07], with Archive 2006. Prior to 2007, the statute was silent as to the burdens of proof and persuasion, thereby following the Burlington/Carter standard which placed the burden on Prongs II and III on the parent.
[42] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 521
[43] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[44] Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 [D.C.D.C. 2007]
[45] Id.
[46] R.B. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIX 106273, p.15; and Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267, citing Lesesne v. District of Columbia, 447 F.3d 828, 832 [D.C. Cir. 2006]; compare Jalloh v. District of Columbia, 535 F. Supp.2d 13, 20 [D.C.D.C. 2008]
[47] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989].
[48] 20 U.S.C. §§ 1400-1482
[49] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 [1982] [hereinafter referred to as “Rowley” [internal quotations omitted].
[50] Id. at p.188
[51] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; 20 U.S.C. §1400 [d] [1] [A]-[B].
[52] Rowley, 458 U.S. 204
[53] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1000 [2017] [hereinafter “Endrew F.”]
[54] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii].
[55] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [internal citations omitted]
[56] See P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2nd Cir. 2008]
[57] Rowley, 458 U.S. 182-183 (quotations omitted)
[58] Rowley, 458 U.S. 205
[59] Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] and R.E. v. New York City Dep't of Educ., 694 F.3d 190-191 U.S. 7, 14 [1993] (“…the §1401 [a] [18] requirements, including the requirement that the school meet the standards of the state educational agency, 1401 [a] [18] [B] -- do not apply to private parental placements.”)
[60] 20 U.S.C. §§ 1400-1482; Rowley, 458 U.S. 183-204
[61] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002 and L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[62] M.O. v. N.Y. City Dept. of Educ., 793 F.3d 236, 244 [2nd Cir. 2015]
[63] Rowley, 458 U.S. 205
[64] Gagliardo, 489 F.3d 105, 112 [2d Cir. 2007] [internal citations omitted]
[65] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[66] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006], citing Florence County Sch. Dist. Four v. Carter, 510
[67] Gagliardo, 489 F.3d at 112 [internal citations omitted]
[68] Id.
[69] Rowley, 458 U.S. 183 and 20 U.S.C. §§ 1400-1482
[70] Gagliardo, 489 F.3d at 112 [internal citations omitted] 77 See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[71] Forest Grove Sch. Dist. v. T.A., 557 U.S. 246-247
[72] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[73] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[74] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[75] Education Law § 4404 [1] [c]
[76] 8 NYCRR § 200.5 [i] [1] [v]
[79] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[80] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[81] P-C (The petitioners’ income and inability is not required to establish the propriety of direct retrospective payment since the exercise of rights under the IDEA cannot be made to depend on the financial means of a disabled child's parents. Ferreira v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 43032, *27 [SDNY 2023] [internal citations omitted]). It is also noted that the district failed to assert the inability to pay as defense. Therefore, the tribunal cannot inquire sua sponte into the parent’s financial ability to pay the tuition (Application of a Student with a Disability, Appeal No. 23-036, p.8).