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CASE NUMBER NYC: 249234
FINDINGS OF FACT AND DECISION
Student’s Name1: REDACTED (“Student”)
Date of Birth: REDACTED
School District: NYC
Hearing Requested by: REDACTED, Parent(s)
Request Date/Date Complaint Filed: 7/27/2023
Date(s) of Hearing: 9/12/2023
Actual Record Closed Date: 10/6/2023
Date of Decision: 10/6/2023
Hearing Officer: Teril Holston, Esq.
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 9/12/2023
For the Student:
REDACTED, Esq.
The Law Offices of REDACTED
REDACTED, parent Student
REDACTED
For the Department of Education:
NONE
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, a REDACTED -year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On July 27, 2023, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2023-2024 school year, in that the District failed to develop an IEP program that was reasonably calculated to confer an educational benefit and failed to provide the student with an appropriate school placement (P-A)2. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2023-2024 school year (Id.). The Petitioner is also seeking 100 compensatory hours of tutoring for a previous failure of the District to transport the student to tutoring (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the school years at issue, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parent.
PROCEDURAL HISTORY
On June 26, 2023, the undersigned was appointed to conduct an impartial hearing.
On July 27, 2023, the parties held a prehearing conference. On August 10, 2023, a status conference was held and both parties appeared. On September 12, 2023, the virtual impartial hearing on the merits of the DPC commenced and concluded. One extension was granted to allow for scheduling of the due process hearing and settlement negotiation (IHO-I). It was a closed hearing and the record closed on October 6, 2023.
At the hearing, the District’s representative failed to appear.
2 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
The Parent, through their attorney, submitted to documents (Ex. P-A though P-Z),[3] in addition to the affidavit testimony of the Educational Program Coordinator of the Private School and the parent, in support of the Parent’s case. All of the documents were admitted to evidence. The parent rested and gave a detailed closing statement.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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 a full review of the record generated at hearing, I make the following findings of fact and determinations4:
The student is a REDACTED -year-old attending the 10th grade at Private School, diagnosed with Autism (P-D). During the most recent neuropsychological evaluation the student’s profile was consistent with a diagnosis for Specific Learning Disorder (id.). The neuropsychologist opined that the student requires placement in a small, specialized school that utilizes a multi-sensory approach with a high teacher to student ratio (id). The neuropsychologist further opined that the student requires a 12-month academic program with additional related services (id).
The student has been attending the Private School in 8th grade (P-Y). The CSE last convened an IEP meeting on August 18, 2022 (P-Y). The parent was not provided the IEP or a school placement for the 2023-2024 school year (id.).
The parent first provided notice of their concerns on June 23, 2023, and their intention to place the student at Private School for the 2023-2024 school year (P-L). On or about July 19, 2023, the District responded and indicated the parent’s claim was not appropriate for settlement and instructed the parent to file a due process complaint (P-C). The student has made substantial progress in the Private School (P-L; P-M; P-N; P-O; P-P).
4 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.
The parent signed an enrollment contract with Private School for the 2023-2024 school year, at the rate of $114,000, on July 18, 2023 (P-G).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[5] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[6] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”7 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.[8]
The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2023-2024 school year and the cost of related services. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S.[7] (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE9. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[10] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the 9 20 U.S.C. § 1415[f][3][E][i]. child’s circumstances.”[11] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[12]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.[13]
Special education services must be provided by the district in conformity with the student's IEP.[14] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.[15]
However, school districts are not required to "maximize" the potential of students with disabilities16, but must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement'" [17]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"18.
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement19. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
16 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
18 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
19 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].
ANALYSIS
A. Prong I: FAPE
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no documentary evidence or witnesses and failing to appear and cross-exam parent’s witnesses. The District offered no explanation as to how the CSE made its recommendation or how its evaluation appropriately describes the Student. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the school year at issue. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for school years at issue (P-Y, see also P-Z). Although not the Parent’s obligation, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[20]
B. Unilateral Placement
In this case, as the District did not offer the student a FAPE for the school year issue, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[21] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[22] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.[23]
A private school placement must be “proper under the Act”24, i.e., the private school must provide an educational program which meets the student's special education needs.[25] A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.[26] The private school need not employ certified special education teachers or have its own IEP for the student.[27] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[28] Moreover, where the District failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parents and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.[29]
24 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370 a. Student Needs
In this case, the Parent submitted several progress reports composed by the Private School professionals, an updated neuropsychological evaluation, as well as the testimony of the Private School Educational Coordinator, and parent, detailing the student’s needs (See Generally, P-D; P-K; P-L; P-M; P-N; P-O; P-P; P-Q; P-Y; P-Z). The student needs support in executive functioning skills, communication and pragmatic language skills, social emotional skills, and academic skills (P-Z).
b. Program
The Private School is a small, specialized school serving students with Autism Spectrum Disorder (P-Z). The Private School offers a REDACTED (“REDACTED”) program for student who are average to above average intellectually with an emphasis on social thinking and vocation or postsecondary opportunities” (P-Z). All the staff receive training in Applied Behavioral Analysis (“ABA”), ASD-related disorders, Collaborative Problem Solving (CPS), Non-violent Crisis Prevention Intervention (CPI) (P-Z).
The student was placed in an 8:1:1 classroom allowing individualized support (P-Z). In addition to 1:1 instruction, the student also received the following related services: speech and language therapy twice per week; counseling services twice per week, and life skills (P-Z).
c. Progress
With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.30 The student’s reports from his teachers and related services providers demonstrate the progress she made towards reaching his delineated academic and functional skill goals (See Generally, P-D; P-K; P-L; P-M; P-N; P-O; P-P; P-Q; P-Y; P-Z). Further, the student is at or achieving grade level in all subjects since placement at the private school.
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2023-2024 extended school year as required.
The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."31 Of note, the District failed to appear and offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.
C. Equitable Considerations
Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”[32]
“With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[33] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."[34] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.[35] Parents of students enrolled in private school are not exempted from 10-day notice requirements.[36] The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"[37] However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.[38] In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the portion of the 2023-2024 school year on June 23, 2023 (P-A; P-Z). Therein, the parent detailed their specific concerns that the District had not provided an appropriate program or an appropriate school location for the student and provided notice of their intention to unilaterally place the student (Id.). There is nothing in the hearing record to demonstrate that the District adequately responded to the parent’s request (P-C).
By way of relief, Parent seeks direct funding to the Private School and reimbursement for tuition and fees paid. The record establishes that the Parent incurred an obligation to pay the Private School and the student attended the school (P-F; P-G). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents 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”). I find that the unilateral tuition costs are extensive and exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC (P-A). The parent submitted 2022 tax returns demonstrating that the total tuition costs exceed the family income. Equity demands that the DOE fund Student’s Private School tuition to the extent that the parent was unable to do so in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student was enrolled in the 2023-2024 school year (P-F; P-G; P-H). D. Compensatory Tutoring Parent is also seeking 100 hours of compensatory tutoring to correspond with missed instruction during the 2022-2023 school year due to the student’s ongoing transportation issues. Although this issue was addressed in a prior decision with a different hearing officer, this hearing record does not contain any information as to how the lateness has adversely impacted the student or the actual time the student missed. While the record supports a finding that the District failed to provide the student a FAPE, the formulation of the recommended relief should not disregard in its entirety the program and related services to be provided to the student as a whole, over the school year in issue. Moreover, even where there is a denial of FAPE, the record may support no reward of compensatory education for the denial because it would not help or because the student has flourished.[39] Lastly, any award shall consider the nature of the violation and the impact the award may have on the child’s educational needs.[40] The parent argued that the student missed nearly half the year of his ELA class and sometimes math, but this was not included on an attendance sheet or in any way documented, other than text messages between the parent and the bus staff (P-T; P-V). Of note, the text message exchanges between the parent and the bus staff correspond to approximately 22 school days over the course of four months where the student’s bus arrived later than 7:20am (P-V). The student’s grades for the 2022-2023 school year indicate that the student has passed both English 9 and Algebra 1a with a grade of 84 (P-X). It appears the student is on schedule to take the Regents exams in both subjects (P-X).
The parent also argued that the student failed his Living Environment due to the missed instruction in ELA (see Transcript). However, even assuming the student missed 100 days of ELA due
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following
findings:
• The District failed to provide the student with a FAPE during the 2023-2024 school year.
• The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and direct funding for the 2023-2024 school year.
• The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2023-2024 school year and reimburse parents for all tuition and fees paid with 35 calendar days of this Order, with the total amount not to exceed $114,000; and IT IS FURTHER ORDERED, that the New York City Department of Education shall provide special education transportation to and from school, with a scheduled pick-up time between 7:00am and 7:15am each morning with a route time of no longer than 75 minutes from the student’s home to the school. IT IS FURTHER ORDERED, the parent’s requested relief for 100 hours of tutoring services is denied and dismissed with prejudice.
DATED: SO, ORDERED
10/6/2023 /s/ Teril Holston
Teril Holston, 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 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
10/6/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
Footnotes
[3] A more detailed list of exhibits is attached.
[5] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[6] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[7] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[8] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[10] Rowley, 458 U.S. at 203.
[11] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[12] Id.
[13] See, Walzczak, supra; Id., Appeal No. 00-005.
[14] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[15] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[17] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[20] Rowley, 458 U.S. at 203.
[21] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[22] Id.; see Gagliardo, 489 F.3d at 115.
[23] 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[25] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[26] Carter, 510 U.S. at 14
[27] Id.
[28] Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[29] see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 30 Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002) 31 Frank G., 459 F.3d at 364.
[32] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[33] 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[34] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[35] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[36] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[37] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[38] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)
[39] Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 [D.D.C. 2013]
[40] see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity”] to being tardy because of the bus, the student would have been present for his 7th period Living Environment class, held daily from 12:51pm - 1:31pm, and the student achieved a grade of 87 (P-S; P- X). Therefore, the undersigned is constrained to dismiss the request for compensatory tutoring.