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FINDINGS OF FACT AND DECISION
Case Number: 249283
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 6/26/2023
Hearing Requested by: Parent
Date of Hearing: 9/1/2023
Record Close Date: 9/6/2023
Date of Decision: 9/6/2023
Time Sensitive? Yes
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”) — Student
2. REDACTED, Esq. & REDACTED, Esq., co-counsels. — Student
(“DOE”): — DOE
1. REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as — DOE
“District’s Representative”) — DOE
Identifying Information Term Used In FOFD and/or Exhibit List — DOE
REDACTED — Parents
REDACTED Neuropsychologist — DOE
REDACTED Program Director — DOE
REDACTED Sister — DOE
REDACTED State Approved Nonpublic School (NPS) — DOE
Findings of Fact and Decision — DOE
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 249283
THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor
has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 6/26/2023,
Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2019-2020;2020-2021;2021-2022;2022-2023 school years due to Student’s severe delays in reading. Case No. 249389 was consolidated into the present case on July 31, 2023 after a Prehearing Conference held on the same day. A DOE attorney was not assigned to this case until August 10, 2023, and DOE did not appear at the PHC.
During the school year in which Parent filed the DPC, Student was classified with Speech or Language Impairment.
The Due Process Hearing (“DPH”) took place on 9/1/2023. Parent submitted documentary evidence and the affidavit testimonies of Parent, Neuropsychologist, Program Director, and Sister. DOE presented no documentary or testimonial evidence. As outlined in the PHC Summary and Order issued on 7/31/2023, DOE did not alert Parent or IHO that it intended to cross examine any of Parent’s witnesses, and the witnesses were properly excused and did not appear. A more through discussion of the issue was on the record, and will not be recited herein.
III. Findings of Fact and Decision
A. FAPE
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (1)
to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected.[1] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.[2] Here, the Parents are not seeking the remedy of tuition reimbursement.[3] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [4]
establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum,[5] and provides for the use of appropriate special education services. 6A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive
6 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
educational benefits.[7] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[8] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [9]
Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[10] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[11] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a)
impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [12]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[18] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[19]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[20] and designed to be provided in the least restrictive environment (“LRE”).[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[22] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum 23 through the use of appropriate special education services.[24]
Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from
23 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[25]
DOE did not present a case or dispute Parent’s allegations in the DPC, which are presumed true, and therefore failed to meet its burden at hearing vis-à-vis the IDEA claims.
I find that DOE denied Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years, and the only issue remaining is the compensatory education award.
B. Compensatory Education
The IDEA applies to children between the ages of 3 and 21, but States have leeway with respect to eligibility age.[26] New York law entitles children with disabilities to special education services until they receive a high school diploma or complete the school year following their twenty-first birthday,[27] at which point, a child is no longer entitled to the protections of the IDEA.[28] Nevertheless, a child who is above the age of eligibility can receive "compensatory education," which is "prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education."[29]
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case,[30] with the purpose of providing an appropriate remedy for a
denial of a FAPE. 31 In fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." 32
An award of compensatory education should be designed so as to "appropriately address[]
the problems with the IEP,"33 “place children in the position they would have been in but for the violation of the Act, " 34 "replace[] educational services the child should have received in the first place" 35 and "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA." 36
New York State Law places the ultimate burden of production and persuasion 37 on the District to express its views as part of the evidentiary record on the issue of the appropriate compensatory education which would place the Student in the position he would have been but for the denial of a FAPE. 38
Parent alleged in her DPC that Student is entitled to compensatory education “for the 2019-2020, 2020-2021 and 2021-2022 school years, payment for 1,800 hours of tutoring at
Lindamood-Bell Learning Center, as well as transportation to and from the Lindamood-Bell
Learning Center in the form of a MetroCard” 39 because Student lacked “academic progress…despite possessing ample school records documenting [Student]’s academic
31 See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123. 32 Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]. 33 Newington, 546 F.3d at 123. 34 Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]. 35 Reid, 401 F.3d at 518. 36 Id. 37 Educ. Law § 4404[1][c]. 38 E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524 39 Ex. P-E-9; 10.
struggles, the [DOE] failed to appropriately modify [Student]’s IEPs to address his significant learning and language weaknesses that were impacting his ability to access grade-level content” and he “is currently a sixth grader who reads at a kindergarten level.” 40 Student’s second grade, 41 and fifth grade (which was after Student repeated this grade) IEPs both indicated that Student remained at level C, which was far below his grade level. Student’s
NPS, sixth grade, progress report indicated that Student was at a 1st grade reading level. 42
The associated Parent’s evidence in the record makes it clear that Student has made little progress in reading, specifically the school years claimed in the DPC.
To remedy Student’s undisputed reading delays, Neuropsychologist opined that a “program such as Lindamood-Bell ("LMB") can provide [Student] with targeted support to address his specific underlying neurocognitive weaknesses related to reading, writing, and mathematics. I am familiar with LMB, and it is my opinion that this program will be able to provide the evidence-based academic remediation that he requires.” 43 Program Director testified via affidavit that “1800 hours of tutoring would be for [Student] to read and comprehend texts at approximately sixth-grade level, and to gain proficiency with applications of mathematics such as ratios and understanding equations.” 44 Program director also outlined the LMB methodology, and how it would be applied to Student, and recommended “1600-1800 hours of tutoring.” 45 Although there appears to be a contradiction between the two recommendations, I find no reason to adopt the lower end of 40 Ex. P-E-2. 41 Ex. P-J-1. 42 Ex. P-AA-15. 43 Ex. P-A-10. 44 Ex. P-B-5. 45 Id.
the recommendation, and will therefore award 1,800 hours of compensatory tutoring hours of LMB. In addition, although DOE did not object to deciding the precise number of hours within the range of 1,600-1,800 of compensatory hours, DOE did not provide an alternative number, or articulate the reason to resolve the apparent contradiction in its favor. Practically speaking, compensatory education is almost always speculative even when an expert opinion is involved, and I find that, absent other evidence or testimony, 1,800 hours would reasonably compensate Student for the denial of FAPE over the course of 3 school years, and to compensate for Student’s 5-6 grades of reading ability gap.
C. Transportation
Under the IDEA, transportation and any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. 46 New York State Education Law 47 defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." 48.
Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education. 49 If the provision of FAPE is dependent on the transportation as a related service, then the CSE must ensure that the student receives the 46 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]. 47 Educ. Law §§ 4401[1]; 4402[4][a]. 48 State Appeal No. 21-057; Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]. 49 State Appeal No. 03-053.
necessary transportation at public expense. 50 An IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate." 51 “Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” 52
Here, DOE did not object to awarding Student public transportation costs for Student and an accompanying adult to and from the Lindamood Bell center in the form of MetroCards until the compensatory bank of hours is exhausted, or Student graduates from high school.
D. Section 504 Claims
As to the 2022-2023 school year in the consolidated DPC, Parents asserted a claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Section
504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 53 Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 54
50 Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]. 51 ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf). 52 State Appeal No. 21-057 citing Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]. 53 34 C.F.R. § 104.33(a). 54 34 C.F.R. § 104.33(b).
An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 55 However, only students who have a substantial limitation of a major life activity are entitled to a FAPE. 56 Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. 57 The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. 58
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s]
parents or guardian and representation by counsel, and a review procedure.” 59 Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. 60
55 34 C.F.R. §104.3(j)(1). 56 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2). 57 See 28 C.F.R. § 35.108(c)(1)(ii). 58 See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y.
2007). 59 34 C.F.R. § 104.36. 60 NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-
504-delegation-Signed.pdf.
a. Meals Under Section 504
It is a violation of 504 and the ADA (although not the IDEA) to deprive a disabled student of free meals that he would have received at public school, if the student is attending a private school (or NPS in this case) because the District is unable to provide FAPE in a public school setting by reason of their disability. 61 In making such a claim, Parent must show that a reasonable accommodation can be made, and that their disability is ‘a substantial cause of the exclusion or denial’ at issue. 62
Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 63 The Southern District of New York uses a two-step approach to determine whether student plaintiffs alleging Section 504 discrimination are otherwise qualified for the benefit they have been denied. The student is otherwise qualified “if she meets all of a program’s other essential requirements.... If a plaintiff does not meet the essential requirements of a program, however, the court can determine whether the plaintiff would meet those requirements if a reasonable accommodation were made.” 64 Finally, a litigant must show that the disability was a “substantial cause of the exclusion or denial” at issue. 65 Impartial hearing officers routinely order the DOE to pay for students’ breakfast and lunch while attending private schools as a result of their disabilities.
61 C.D. v. New York City Dep’t of Educ., WL 400382 (S.D.N.Y., Feb 11, 2009); 2009 U.S. Dist. Lexis 10167 62 Id. At 32-34 and 23-26 63 34 C.F.R. § 104.3(j)(1). 64 C.D., 2009 WL 400382, at *7 (citing Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 288 n. 17, (1987)) 65 Meekins v. City of New York, 524 F. Supp. 2d 402, 407 (S.D.N.Y. 2007)
In order to support a claim that there has been a violation of Section 504, a party must show that he or she has a disability, is otherwise qualified for the benefit that has been denied and has been denied the benefit by reason of the disability. 66 The District Court in C.D. ex rel.
S.D. found that the DOE’s policy of not providing free meals to minor students with disabilities who attended private special education schools was impermissibly discriminatory and a violation of Section 504, because it denied those students a benefit it provided to public school students solely by reason of the students’ attendance at private schools based on their disabilities. Here, Student attended an NPS where no meals were provided. DOE did not dispute that Student is entitled to meals.
The Parent’s request that the DOE be ordered to pay for the Student’s breakfast and lunch on school days while he attended the NPS during the 2022-2023 school year is brought under Section 504. Hearing officers in New York have jurisdiction over claims brought under Section 504. 67
The DOE’s failure in the instant case to provide the Student with free breakfast and lunch while attending the NPS, when it provided free breakfast and lunch to similarly situated public school students, is equally discriminatory and a violation of Section 504.
Consequently, the DOE must reimburse the Parent for the expenses she incurred in providing those meals to the Student while attending the NPS during the 2022-2023 school year. The
Parent credibly testified that she spent an $12/day so that she can prepare breakfast and lunch for Student daily for 177 days of school. The DOE did not challenge this portion of
66 C.D. ex rel. S.D. v. New York City Dept. of Educ., 2009 WL 400382, at *7 (S.D.N.Y. 2009) [citing Weixel v. Bd. of Educ., 287 F.3d 138, 146-47 (2d Cir. 2002)] 67 See A.M. ex rel. J.M. v. New York City Dept. of Educ., 840 F. Supp. 2d 660, 671 (E.D.N.Y. 2012)
Parent’s testimony and averred that the requested daily amount was in-line with what was appropriate. Therefore, Parent will be reimbursed for the requested amount totaling
$2,124.00.
There are no other Section 504 claims that are not subsumed in the IDEA’s provisions for any of the school years in this case, and no further discussion or analysis is required.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that DOE provide Student with a bank of 1,800 hours of tutoring services, by a provider trained in the Lindamood-Bell methodology, at the Lindamood-Bell
Learning Center, at a rate not to exceed $175 per hour. DOE shall directly fund and/or reimburse Parent immediately upon presentation of invoices and/or paid receipts.
This bank of hours may be used until such time as Student graduates from high school.
2. ORDERED that DOE provide two New York City transit MetroCards, or other form of New York City public transportation payment if MetroCards are unavailable, for Student and an accompanying adult, for use to and from the Lindamood-Bell Learning Center. MetroCards shall be provided year-round, depending on Student’s tutoring schedule, until the earlier occurrence of the depletion of the bank of hours, or Student’s graduation from high school.
3. ORDERED that DOE shall forthwith reimburse Parent for 177 days of school meals for the 2022-2023 school year at a rate of $12 per day, for a total of $2,124.00.
4. All other claims and requested relief not addressed at the Due Process Hearing are dismissed with prejudice.
DATED: SO ORDERED
9/6/2023
Dr. Oren Varnai, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, 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 were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
9/6/2023
Dr. Oren Varnai, Esq., IHO
EXHIBITS
PARENT EXHIBITS
Exhibit Document Date Pages
A. Witness Affidavit of Neuropsychologist 08/25/2023 10
B. Witness Affidavit of Lindamood-Bell Learning Processes 8/25/2023 7
C. Witness Affidavit of Parent 8/25/2023 12
D. Witness Affidavit of Sister 8/25/2023 5
E. Due Process Complaint – Compensatory Services 6/26/2023 11
F. Bilingual Psychological Evaluation 4/14/2015 7
G. Initial Referral for CSE Evaluations 7/23/2015 8
H. 2015-16 IEP (for Kindergarten) 8/5/2015 22
I. 2016-17 IEP (for First Grade) 5/17/2016 22
J. 2017-18 IEP (for Second Grade) 4/28/2017 21
K. Second Grade Bilingual Psychological Evaluation 5/17/2018 6
L. 2018-19 IEP (for Third Grade) 5/17/2018 24
M. IEP Meeting Minutes 5/17/2018 3
N. 2019-20 IEP (for Fourth Grade) 6/7/2019 24
O. IEP Meeting Minutes 5/19/2020 5
P. 2020-21 IEP (for Fifth Grade) 5/19/2020 35
Q. Neuropsychological Evaluation 11/11/2020 18
R. 2021-22 IEP (for Fifth Grade repeat) 5/2/2021 26
S. Reevaluation 4/15/2022 7
T. 2022-23 IEP (for Sixth Grade) 5/9/2022 27
U. Request for IEP Meeting to Review Reevaluation 5/12/2022 1
V. NPS Acceptance Letter 7/8/2022 1
W. Lindamood-Bell Learning Ability Evaluation 10/12/2022 3
X. Lindamood-Bell Learning Ability Evaluation Summary 10/12/2022 3
Findings of Fact and Decision
Y. NPS Sixth Grade Progress Report December 16
2022
Z. NPS Sixth Grade Progress Report March 2023 17
AA. NPS Sixth Grade Progress Report June 2023 16
BB. Due Process Complaint – Meals Reimbursement 6/27/2023 2
(consolidated case #249389)
CC. Screenshot of NYCPS School Meals Webpage 8/22/2023 1
DD. C.D. v. NYC Dept. of Educ., 2009 WL 400382 2/11/2009 18
EE. NPS 2022-23 Attendance Card 2022-2023 [1]
FF. Store Receipts for Breakfast and Lunch 2022-2023 4
DOE’S EXHIBITS
Exhibit Document Date Pages
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Ex. P-A.
[4] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[5] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[7] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
[8] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[10] R.E., 694 F.3d at 190-91.
[11] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[12] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[13] 20 U.S.C. § 1415[f][3][E][i].
[14] Rowley, 458 U.S. at 203.
[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[16] Endrew F., 137 S. Ct. at 1001.
[17] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[21] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[22] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[24] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[25] Endrew F., 137 S. Ct. at 1000.
[26] 20 U.S.C. §1412(a)(1).
[27] N.Y. Educ. Law § 4402(5).
[28] See Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 113 (2d Cir. 2008).
[29] Id, at 109 n.2.
[30] Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[1] None None None IHO’S EXHIBITS Exhibit Document Date Pages I. None None None