NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED FINDINGS OF FACT AND DECISION*
Case Number: 249340
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: New York City Department of Education (District)
Hearing Requested by: REDACTED
Request Date/Date Complaint Filed: 6/27/2023
Dates of Hearing: 08/18/2023
Actual Record Close Date: 09/08/2023
Date of Decision: 09/08/2023
Date of Distribution: 09/08/2023
Time Sensitive: Yes ☐ No ☒
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
*The decision was corrected to include the jurisdictional statement. No substantive findings have been changed.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/21/2023
For the Student:
• REDACTED, Advocate for Petitioner on behalf of the Parent/Petitioner
For the Department of Education:
• REDACTED, District Representative.
INTRODUCTION AND PROCEDURAL HISTORY
A) Introduction The parent filed a Due Process Complaint (DPC) against the district on 6/27/2023.[1] The DPC alleges violations of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law §3602-c and § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq., resulting in a denial of a free appropriate public education (FAPE) for the school year of 2021/2022. The DPC only seeks reimbursement of $4,030.00 for transportation costs to and from privately retained Special Education Teacher Support Services (SETSS).[2] The district did not serve a response to the DPC. As the student’s entitlement to SETSS is not in dispute, reciting the student’s special education profile is unnecessary.
B) Procedural History A pre-hearing conference was held on 07/31/2023. All parties appeared by counsel or a representative. The parties agreed to conduct the due process hearing (DPH) on 08/21/2023 from 10:30 A.M. to 11:30 A.M. A Prehearing Conference Order was issued (PHCO).
The PHCO directed that.
(a) If any party becomes unavailable to appear or unable to proceed on the scheduled date/time, the party must file an Affidavit of Unavailability and Request for Adjournment [PHCO ¶4].
(b) The district was to serve a written response to the DPC within five (5) business days of the order [PHCO ¶5], (b) The parties were to serve memoranda of law at least two (2) business days before the DPC [PHCO ¶8], (c) All substantive motions were to be served five (5) calendar days before the DPH; otherwise, the issues raised therein were waived [PHCO ¶9 (a) – (d)], (d) Claims or defenses raised for the first time in opening statements or closing arguments were deemed waived [PHCO ¶ 6-8, and 9 (d)], (e) The cross-examination of any witness is limited to the scope of the direct affidavit testimony. Any party who seeks to use the opposing party’s witness(es) to prove their direct case must disclose the identity of the witness and the substance of such testimony (8 NYCRR 200.5 [j] [3] [xii]); otherwise, any such testimony may be excluded (8 NYCRR 200.5 [j] [xii]). A generic statement, such as “all issues in the DPC,” is insufficient. [PHCO 10 (c) (i) & (iii)], (f) That upon the failure to serve a notice of intention to cross-examine witnesses, the witness did not need to appear for the hearing [PHCO 10 (c) (i)-(iii)], and (g) The parties were to serve written objections to disclosure before the hearing, or the objections would be deemed waived [PHCO 10 (d)(h)].
The parent served disclosure on 08/14/2023 [IHO-I-4], and the district served disclosure [DOE-1 and 2] one day late on 08/15/2023 [IHO-1-3]. The parent did not object to the late disclosure. The district did not serve a notice of intention to crossexamine witnesses per the PHCO [see ¶10 (c) (ii)].
On 08/17/2023, the district served what purported to be an “updated disclosure,” attempting to add as DOE-3 a resolution agreement [IHO-II, pp.3-4].[3] On Friday, 08/18/2023, at 3:45 P.M., the district served a motion to dismiss based on, inter alia, a resolution agreement [IHO-II-2]. The motion to dismiss and the proposed untimely; the parent was advised that a response to the motion was not required [IHOII-1]. The district then attempted to convert the motion to dismiss to a memorandum of law. [4]
At 6:58 A.M. on the morning of the hearing, the Office of the General Counsel emailed the tribunal that “…REDACTED is out sick unexpectedly today. I understand that this case is on today for a hearing. We are trying to secure coverage and get someone up to speed with the facts of the case however, because of the short amount of time, and REDACTED knowledge of the case, we are asking to adjourn the hearing to next week. My apologies for the last minute request and any inconvenience this may cause” [IHO-III-2].
The parent’s attorney and another representative appeared for the district at the hearing. The district requested an adjournment of the hearing to allow the representative assigned to the case to argue the motion to dismiss [Tr. 9:20-25]. The request was denied as (a) the tribunal previously rejected the motion and (b) the parent’s appearance was unnecessary since the district did not serve a notice of intention to cross-examine the witness. The right to cross-examination was waived per the PHCO [Tr. 10]. The tribunal did not have clarifying questions for the witness.
As neither party served objections to the disclosures served on 08/14/2023 and 08/15/2023 [PHCO 10 (d)-(h)], the parent’s exhibits A through G and the district’s exhibits 1 and 2 are admitted into evidence. However, DOE-3 is deemed an exhibit to the untimely motion to dismiss, not an exhibit for the DPH, and is excluded from evidence as late.[5]
The tribunal directed the parties to serve written closing arguments by 08/25/2023 and concluded the hearing [Tr. 10-11]. This allowed each party to argue their case based on the evidence. The parties served their closing arguments on 08/25/2023.
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. I was appointed to adjudicate this hearing on 06/28/2023 pursuant to both 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. [6]
FINDINGS OF FACT
After a thorough review of the parent’s exhibits A through G, the district’s exhibits DOE-1 and DOE-2, the memoranda of law, and closing arguments, the tribunal makes the following findings of fact: sessions per week of SETSS as per the last agreed-upon Individualized Education Service Program (IESP) dated 10/15/2020 [P-1-1]. The district did not implement the services; therefore, the parent independently located and retained a SETSS provider. The SETSS provider could not deliver the services to the student at home or school, and the parent paid out of pocket for round-trip transportation costs. These transportation costs were necessary; otherwise, the IESP could not be implemented, and the student would not have been able to receive the services [Id. and P-G-1].
By way of background, this failure to implement the SETSS was the subject of a prior DPC under case #218926 [DOE-1]. After a due process hearing was held, but before a final order was issued, the parent made an application to withdraw the DPC without prejudice. This request was granted in an Order of Termination without any reference to a resolution agreement [DOE-2-2].
The district neither presented documentary evidence nor affidavit testimony that the cost of transportation was unreasonable or inflated. There is also no evidence in the record that the parent engaged in conduct that impeded the district’s ability to arrange transportation for the student to receive the SETSS for the 2021/2022 school year, which would reduce the parent’s entitlement to reimbursement in whole or in part. The district also could not establish the defenses on its direct case through the parent’s testimony as it failed to serve the required notice per the PHCO. Therefore, the district could not establish its defenses through cross-examination by going beyond the scope of the parent’s direct affidavit testimony. To hold otherwise would result in a trial by ambush.
Accordingly, the cost of the transportation was reasonable, and award full reimbursement to the parent.
CONCLUSIONS OF LAW & ANALYSIS
A) Education Law §3602-c A student parentally placed in a private school is entitled to special education services under the IDEA.[7] However, Congress did not delineate rights to any particular service, program, or due process in the IDEA but, instead, delegated this authority[8] to the state legislatures and agencies.[9] Therefore, the extent of both the available services and the accompanying due process rights are set forth under the New York State Education Law and the implementing Regulations of the Commissioner of the Education Department,[10] which have granted nonpublic school students with disabilities the right to any relief available in a civil action under the IDEA.” [11]
Under § 3602-c [2] [a], school districts shall provide services to nonpublic school students upon the parent’s written request. “Services” are defined as instruction for (a) the education of students with disabilities and (b) counseling, psychological, and social work services pertaining to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district.[12] The district must also provide transportation to enable the student to receive such services. [13]
The Court of Appeals has also held that Education Law § 3602-c expressly “authorizes services to private school handicapped children and affords them an option of dual enrollment, so that they may enjoy equal access to the full array of specialized public school programs.”[14] Moreover, “the statute was plainly designed to increase benefits afforded to handicapped children in private schools -- not to limit them -- by offering these students access to all of the special programs provided for public school students” and enable such students to share “the benefits from such public programs.” [15]
Therefore, to afford equal access to services, the district must comply with all New York state implementing regulations and offer students parentally placed in private schools a FAPE on an equitable basis.
Any violations of Education Law § 3602-c is a question of New York State law; thus, the federal courts lack subject matter jurisdiction to hear such due process complaints. [16]
B) FAPE & Transportation The district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the Education Law §4404 [1] [c], except in cases where the parent is seeking tuition reimbursement, which is not at issue herein. The district must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[17] i.e., evidence of greater weight or more convincing than the evidence offered in opposition thereto. [18]
The district did not serve a response to the due process complaint within ten (10) days of filing the DPC[19] or within five (5) business days of the pre-hearing conference [PHCO ¶5]. Although default is not the penalty for the failure to serve an appropriate response to the DPC, it is a procedural violation that is only actionable if it affects the student’s substantive rights.[20] Therefore, a tribunal must thoroughly examine the record even when the district defaults.
The IDEA specifically includes transportation and any modifications or accommodations necessary to assist a student to benefit from their special education.[21] Similarly, New York State law 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.”[22] By the authority delegated by Congress, the New York State Legislature afforded all private school students full access to all special education services.
Here, the failure to implement the IESP improperly and unlawfully shifted to the parent the district’s duty to provide equitable services.[23] This left the parent no alternative but to resort to self-help in obtaining an available SETSS provider. [24] Therefore, the failure to provide and fund the student’s necessary transportation costs directly caused by the failure to implement the IESP is a substantive denial of a FAPE on an equitable basis. The parent could not implement the IESP without round-trip transportation.[25] But for the district’s improper conduct, the parent would not have incurred the expenses.
The district’s argument that transportation is not an equitable service is without basis in law or fact as it is contrary to the Court of Appeals and the plain wording of the Education Law and its implementing regulations.[26] The transportation services paid for by the parent afforded the student equal access to special education services and programs. [27]
Next, the district’s argument that the Committee on Special Education (CSE) did not recommend transportation services is not a denial of FAPE lacks factual support in the record. The district cannot establish a cogent and responsive explanation for the contents of the IESP without a witness from the CSE to testify as to the recommendations in the IESP [P-A].[28] It is the district’s burden to demonstrate the evaluative materials reviewed and relied upon during the CSE meeting to develop the IESP.[29] Without this evidence, the tribunal would be engaging in “post hoc rationalizations” for the CSE’s recommendations.[30] It is noted that this argument is also without merit since, at the time the IESP was created, the parent could not have foreseen that 1) the district would not implement the 2020/2021 IESP dated 10/15/2020 and send a provider to the student at home or school for the 2021/2022 school year and 2) that if the district did not implement the IESP, transportation would be necessary.
Accordingly, as the district has failed to meet its burden of proof, a full award reimbursing the parent for transportation costs is warranted.
C) The rejection of the district’s motion and exhibit DOE-3.
A presiding administrative tribunal may regulate the course of a hearing, including fixing the time for filing briefs and other documents.[31] Therefore, unless expressly prohibited by regulation, an IHO is provided with broad discretion, subject to review, concerning the conduct of an impartial hearing, “so long as they accord each party a meaningful opportunity to exercise their rights during the impartial hearing,” and a “sufficient opportunity to prepare their respective cases and review evidence.” [32] The sanctions imposed due to a party’s failure to follow the IHO’s directives do not constitute a denial of due process. [33]
A motion is defined as a “formal request made by any party for a desired ruling, order or judgment,”[34] whereas a memorandum is a “comprehensive and organized written document that summarizes and analyzes relevant laws based on legal research to support a conclusion on a particular legal issue.”[35] A motion is a vehicle to request an order or judgment that an accompanying memorandum of law can support. A motion and a memorandum of law are not the same.[36]
Here, the tribunal fixed two separate timelines for the service of briefs and documents in the PHCO, i.e., a) pre-hearing dispositive motions seeking an accelerated judgment and b) hearing memorandum of law. The latter afforded the parties one final opportunity to present or clarify, as needed, a claim or defense after the timely disclosure of the parties’ proposed evidence. The order also established a separate timeline for objections to the terms of the PHCO [see ¶17].
The district has failed to respond to the DPC, thereby depriving the parent of an opportunity to exchange evidence and address the defenses raised in the late motion and DOE-3.[37] In violation of the five-day disclosure rule,[38] the district belatedly served its disclosure and motion “piecemeal” over the course of three days. The parent’s attorney objected to the late service of the motion, which includes the exhibit DOE-3 it relied upon. Without this exhibit, the motion [and memorandum of law] lack evidentiary support. The district neither raised defenses in a written response to the DPC nor at the pre-hearing conference.[39] Therefore, I hold that this conduct is wholly prejudicial to the parent and the attorney since it deprived them of a fair opportunity to review the district’s application to dismiss the DPC, prepare their case, and present any additional evidence due to the service on the eve of the Sabbath.[40] A due process PHCO prevent a party from being ambushed at the hearing. [42]
D) The denial of the district’s application for an adjournment The Impartial Hearing Consultant, who is also an attorney, 43 did not provide an affirmation or affidavit of unavailability in accordance with the PHCO. Instead of emailing a sworn statement to the tribunal, the attorney apparently contacted a colleague who emailed a request for an adjournment. In light of the continuing disregard for the rules set forth in the PHCO, the unsworn request for an adjournment was denied. An adjournment was also unnecessary because the tribunal would not hear oral argument on the motion, and the district forfeited its right to question the parent’ by failing to serve a notice of intention to do so. The parent should not be “on call” at the whim of the district.
Next, despite the history of non-compliance by the district with the statutory mandates and the PHCO, the tribunal afforded the district one final opportunity to present its case in a written closing argument. This also afforded the parent the opportunity to address all legal issues.
Still, without the resolution agreement in evidence, the res judicata argument must fail because the tribunal would be speculating as to the terms and scope of the resolution agreement, i.e., whether the issue of transportation costs was resolved in the agreement. Thus, it is unknown whether the resolution agreement resolved all claims
41 Jusino v. New York City Dep’t, 2016 U.S. Dist. LEXIS 203006, *17 [EDNY 2016], affirmed 700 Fed. Appx. 25] (1) the prior DPC did not seek an order awarding the cost of transportation [DOE-1, pp.1-2], and (2) the prior due process proceeding was dismissed without prejudice [DOE-2-2 emphasis added]. Therefore, irrespective of the terms of the resolution agreement excluded from evidence, the parent had the right to refile a DPC for claims arising out of the 2021/2022 school year. If the district wanted to settle and foreclose all claims for the 2021/2022 school year, it should have made a motion to dismiss the prior DPC with prejudice based on the resolution agreement.
Therefore, notwithstanding the exclusion of the resolution agreement, the res judicata argument in the district’s closing is without merit based on the evidence in the record.
As the parent has provided sworn proof of the expenses and the completed forms as required by the district, the parent does not need to resubmit these forms to the implementation unit.
ORDER
NOW, in light of the above findings of fact and conclusion of law, it is hereby
ORDERED that:
(1) The District failed to offer the Student a FAPE on an equitable basis for the 2021-2022 school year.
(2) The Parent’s claim for reimbursement for the Student’s transportation to
(3) The District shall, within thirty-five (35) days of receipt of this ORDER, reimburse the Parent in the amount of $4,030.00 for out-of-pocket transportation costs incurred for the 2021-2022 school year.
SO ORDERED
Teresa R. Nuccio, Esq.
Impartial Hearing Officer (Digitally Signed)
IHO Teresa R. Nuccio
Dated: 09/08/2023
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
School District: New York City Department of Education Hearing Requested by: REDACTED
APPENDIX B
DOCUMENTS IN EVIDENCE
PARENT DESCRIPTION DATE PAGE
EXHIBIT
A. Impartial Hearing Request 06/27/2023 4 pages
B. Individualized Education Services Program Various 9 pages
C. Vendor Monthly Service Form Various 11 pages
D. Invoices from REDACTED Car Service Various 10 pages
E. Transportation Reimbursement Voucher 08/26/2021 20 pages
F. Authorization for Independent SETSS 08/10/2023 1 page
G. Affidavit of REDACTED 08/10/2023 1 page
DISTRICT DESCRIPTION DATE PAGE
EXHIBIT
DOE-1 Due Process Complaint 218926 10/05/2021 4
DOE-2 Order of Termination 218926 03/31/2022 3
IHO DESCRIPTION DATE PAGE
EXHIBIT
I. Email Chain Re: Memo of Law 08/18/2023 4 pages
II. Email Chain Re: Motion to Dismiss 08/18/2023 08/17/2023 4 pages
III. Email Chain Re: Request for Adjournment 08/21/2023 2 pages
IV. District Motion to Dismiss/Memorandum of Law 08/18/2023 14 pages
PARENT
V. Memorandum of Law 08/18/2023 2 pages
VI. District Closing Argument 08/25/2023 8 pages
PARENT
VII. Closing Argument 08/25/2023 2 pages
Footnotes
[1] P-A
[2] P-A and G1 reads “Amended” [IHO-II-4]. This list without the excluded exhibit is included for reference and clarity of the record only.
[3] It is noted that although the district’s email states that the Disclosure List was “Updated,” [IHO-II-3], the actual list exhibit thereto [DOE-3] were objected to by the parent and rejected by the IHO as
[4] The memoranda of law were due two business days prior to 08/21/2023, which is 08/17/2023. However, the IHO had inadvertently responded in an email that the memorandums were due on 08/18/2023. It is noted that once the motion to dismiss was rejected as untimely, the district’s representative attempted to convert it as a memorandum of law. A memorandum of law and a motion to dismiss seeking an accelerated judgment are separately identified in the PHCO. The parent also served a memorandum of law on 08/18/2023. The memoranda of law are marked as IHO exhibits IV and I.
[5] 8 NYCRR § [j] [3] [xii] [a]
[6] 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., For the 2021/2022 school year, the student was mandated to receive four (4)
[7] See H.C. v. Colton-Pierrepont Cent. Sch. Dist., 341 Fed. Appx. 687, 691 [2d Cir. 2009]. The Second Circuit held that a student enrolled in and attending a nonpublic school is eligible to receive services under the IDEA. The right to services under the IDEA is distinct from the right to due process.
[8] Mistretta v. United States, 488 US 361, 372-373 [1989] [Congress simply cannot do its job absent an ability to delegate power under broad general directives…this Court has deemed it "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.]
[9] See 34 C.F.R. § 300.140 [a] and [c] and 34 C.F.R. § 300.151 through 34 C.F.R. § 300.153
[10] Education Law § 3602-c and § 4401 through § 4404, and 8 NYCRR § 200.1 and § 200.5
[11] Education Law § 4404 [3] [b].
[12] Education Law § 3602-c [1] [a]
[13] 8 NYCRR § 200.2 [b] [1]
[14] Board of Education v. Weider, 72 NY2d 174, 184 [1988] [emphasis added]
[15] Board of Education v. Weider, 72 NY2d 184-185; See also, NYS_Bill_and_Veto_Jackets_2008_Chapter_217. Leg. History, p.14, which amended Education Law § 3602-c codifying home-schooled children’s right to IESP services. (The school district of residence, as the local educational agency, has an obligation under the I DEA to ensure that a free appropriate public education is available to all students with disabilities who reside within the district.)
[16] Matter of Board of Educ. Of Bay Shore Union Free School Dist. V. Thomas K., 14 N.Y.3d 292; Bay Shore Union Free Sch. Dist. V. Kain, 485 F.3d 730, 736 [2d Cir. 2007]; and see Gabel ex rel. L.G. v. Bd. Of Educ., 368 F. Supp. 2d 313, 333 [S.D.N.Y. 2005]; and see H.C. v. Colton-Pierrepont Cent. Sch. Dist., supra
[17] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 516, 521 [D.C. Cir. 2005]
[18] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[19] 8 NYCRR §200.5 [i] [4] [a]
[20] 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 D.D.C. 2007], 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]
[21] See 20 U.S.C. § 1401 [26]; 34 CFR § 300.34 [a] and [c] [16]
[22] Educ. Law § 4401 [1], [2] and [4] [a] [emphasis added], 8 NYCRR § 200.1 [ww] and 8 NYCRR § 200.2 [b] [1]; [a]; and see Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 [1992]
[23] See, e.g., Application of a Student with a Disability, Appeal No. 21-068.
[24] Id.
[25] 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 267
[26] Educ. Law § 4401 [1], [2], and [4] [a], 8 NYCRR § 200.1 [ww] and 8 NYCRR § 200.2 [b] [1]
[27] Board of Education v. Weider, 72 NY2d 184
[28] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1002 [2017] and L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[29] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 110
[30] Id.
[31] State Administrative Procedure Act § 304 [4] [emphasis added]
[32] Application of a Student with Disability, 23-019, p.14 [internal citations omitted]
[33] Id.
[34] Cornell Law School Legal Information Institute - Motion Defined
[35] Cornell Law School Legal Information Institute - Memorandum Defined
[36] See Johnson v. Bd of Police Comm’rs, 351 F.Supp.2d 929, 934 ([Missouri E.D. 2004] fn2. “…Defendants' request that to be dismissed from this action has not been properly presented…[The] defendants’ request is presented neither in a responsive pleading nor by motion but is instead presented in a memorandum in opposition; see also 22 NYCRR § 202.8-a [a].
[37] Jusino v. New York City Dep’t, 2016 U.S. Dist. LEXIS 203006, *17 [EDNY 2016], affirmed 700 Fed. Appx. 25 [2d Cir. 2017]
[38] 8 NYCRR § 200.5 [j] [3] [xii]
[39] See generally Application of a Student with a Disability, Appeal No. 23-032, p.8 citing M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [SDNY 2014] [A defense is subject to the doctrine of waiver if not the subject of the initial due process hearing with a complete record.]; and see, R.B. v. Dep't of Educ. of the City of New York, 2011 U.S. Dist. LEXIS 106273, p.15-19, 2011 WL 4375694, pp.4-6 [SDNY 2011], which held that the IDEA requires the parties to raise all issues prior to the impartial hearing.
[40] Application of a Student with a Disability, 23-019, p.14 [internal citations omitted] hearing is not a “summary gotcha game.” 41 The rules of disclosure and directives in a 43 See the cover page of the District’s Memorandum of Law.
[42] Compare, Application of a Student with a Disability, 23-121, p. 7 for the 2021/2022 school or was limited to the claims set forth in the prior DPC since and from the SETSS Provider is GRANTED.