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249513 Findings of Fact & Decision
FINDINGS OF FACT AND DECISION
Case Number: 249513
Student’s Name: [REDACTED] (Student)
Date of Birth: [REDACTED]
School District: New York City Department of Education (District)
Hearing Requested by: [REDACTED] (Parent)
Request Date/Date Complaint Filed: 6/29/2023
Dates of Hearing: 09/27/2023
Actual Record Close Date: 11/09/2023
Date of Decision: 11/09/2023
Date of Distribution: 11/09/2023
Time Sensitive: Yes ☒ No ☐
Impartial Hearing Officer: Teresa R. Nuccio, Esq.
-i249513 Findings of Fact & Decision
NAMES AND TITLES OF PERSONS WHO APPEARED ON
For the Student:
• [REDACTED], Esq., Attorney for Petitioner/Parent
• [REDACTED], Parent Student
• [REDACTED], (Administrator) Head of The [REDACTED] School (Private School)
For the Department of Education:
• [REDACTED], Esq., Attorney for the New York City Department of Education
(District)
- ii -
249513 Findings of Fact & Decision
INTRODUCTION & BACKGROUND
Introduction
The parent filed a Due Process Complaint (DPC) against the district on 6/29/2023.[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 school year of 2021/2022.
Background
On 12/23/2020, a Committee on Special Education (CSE) convened for the student’s annual review and classified him with a “Learning Disability.”[2] At that time, the student was attending a private school. 3 An Individualized Education Program (IEP) was developed and recommended as an educational school program and placement in an Integrated Co-Teaching Class (ICT)[4] in a non-specialized district community school. [5] The student entered the sixth grade in the 2021/2022 school year. [6]
This IEP is the operative IEP for the 2021/2022 school year.[7] The parent has alleged that she was never provided with a copy of the IEP[8] with either (a) the Prior 249513 Findings of Fact & Decision
Written Notice dated 01/21/2021 (PWN1)9 or (b) the Prior Written Notice (PWN2) and School Location Letter dated 06/29/2021 (SLL). 10
JURISDICTION & PROCEDURAL HISTORY
Jurisdiction
I was appointed Impartial Hearing Officer (IHO) for this case on 7/3/2023. A prehearing conference was held on 07/13/2023. The hearing and decision in this matter are authorized pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq., 20 U.S.C. § 1412 [a] [10] [A] [i], 34 CFR §300 et seq., the New York State Education Law §4404 and 8 NYCRR §200.5 et seq.
Procedural History
A prehearing conference order was issued, and the due process hearing (DPH) was initially scheduled for 08/31/2023. The parent appeared for the DPH, but the district did not.[11] However, the parent requested to extend the compliance date and adjourn the DPH due to witness availability. 12 The request was granted, and the DPH was adjourned to 09/27/2023. 13 The parties timely exchanged disclosure. The parent’s exhibits, A through M, and the district’s exhibits, 1 through 8, were admitted into evidence without objection on the consent of the parties. [14] 249513 Findings of Fact & Decision
District’s Opening Statement
Each party presented an opening statement.[15] In its opening statement, the district only addressed Prongs I and II: (1) The documentary evidence “alone” was sufficient to meet the Prong I burden that the student was provided with a FAPE. [16] (2) It was asserting the defense of the statute of limitations defense. The DPC was filed on 06/29/2023, but the date the parent knew or should have known that a denial of FAPE occurred was 12/23/2020, the date of the IEP meeting. Alternatively, the latest date the parent knew or should have known was on or about
01/212021, the date of the PWN1. [17] (3) “As to Prong II, the district holds the Parents to their Prong II burden, reserves the right to raise equitable defenses.” [18]
Parent’s Opening Statement
The parent, in their opening statement, set forth that, (1) The district failed to offer the student a FAPE for the 2021/2022 school year.
(2) As to the defense of the statute of limitations, the IEP meeting was held on 12/23/2020. However, PWN2 and the SLL, both dated 06/29/2021, are controlling for the 2021/2022 school year. Therefore, PWN2 and the SLL superseded PWN1. [19] (3) (Prong I) The district failed to develop an appropriate program and offer an appropriate school location based on the student’s unique special education needs. The school could not implement the IEP as written. [20]
(4) (Prong II) The private school offered the student an appropriate education, as evidenced by the testimonial and 249513 Findings of Fact & Decision documentary evidence, -- the progress reports, the individualized curriculum, and the testimony of the head of the private school. [21] (5) The equities favor the parent (Prong III). The parent did not receive a response from the recommended school[22] or the district regarding her 10-day notice. [23]
The district rested after opening statements.[24] The administrator for the private school was sworn in as a witness and cross-examined by the district, 25 then asked clarifying questions by the tribunal. 26 The parent was sworn in as a witness, authenticated her affidavit, and then asked questions on direct examination. 27 The district waived its right to cross-examine the parent.[28] The tribunal did not inquire with clarifying questions.[29] The parent rested. [30]
District’s Closing Statement
In closing, the district argued that the defense of the statute of limitations “may be raised at any time during the impartial hearing.”[31] Based on the facts of this case, the allegations in the DPC regarding the sufficiency of the IEP are time-barred, but any allegations based on events occurring after PWN2 and the SLL “appear to be timely. 249513 Findings of Fact & Decision
However, those allegations, even if true, do not rise to [the] level of [a deprivation of] FAPE.”[32] Further, the district argued that, The due process complaint on page two (2) claims that the parent tried to get information about the school and did not receive a response, see Exhibit A, page 2. This allegation, even if true, does not rise to a level of FAPE deprivation.
A parent is not entitled to a school tour. Please see appeal # 21-077 and appeal
#18-112. And this is a direct quote from appeal number 23-058. That case states, the Supreme Court and Second Circuit have continually reminded litigants that quote: "the IEP is the centerpiece of the IDEA's education delivery system for disabled children." Citing Endrew F. 137 S.Ct. 988, DS v. Trumball Board of Education, 975, F.3d 152, the Second Circuit, 2020.
"Generally," again, this is a direct quote from 23-058, "Generally, the sufficiency of the program offered by the District must be determined on the basis of the IEP itself." Quoting the case of R.E. 694 F.3d at 186. "Moreover, the Second Circuit has explained that speculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." Therefore, the tribunal should find for the district on Prong I. The district made no further legal or factual argument concerning Prong II and once again remained silent on Prong III.
Parent’s Closing Argument The parent repeated their positions from their opening statement that the district failed to offer the student a FAPE for the 2021/2022 school year (Prong I), the unilateral placement offered an appropriate education (Prong II), and the equities favored the parent (Prong III).[33] The parent further argued that they were unable to consider the IEP fully or understand if it could be implemented until the district explicitly 249513 Findings of Fact & Decision designated a school location for the 2021/2022 school year in PWN2 and SLL dated 06/29/2022.[34] Until such time, it was unknown if the school had an ICT class with an available placement or could meet the student’s needs.[35] Specifically, the parent argued that It is unrealistic to expect a parent to send their child to a school that they have received no contact from them, to just send them to that school without any information, particularly a child with -- because [the student] is a child with an IEP and there's a special education program that he needs start of the -- day one of the school.” [36]
The district also failed to offer evidence that the school could meet the student’s needs.[37] Finally, the district had “ample opportunities” to assert the defense of the statute of limitations. Still, it failed to do so in a formal response to the DPC or at any point before the hearing. [38]
ISSUES
(1) Did the district waive the defense of the statute of limitations by failing to timely raise it before the hearing?
(2) If the defense was not waived, is the parent’s claim for the 2021/2022 school year barred by the statute of limitations?
(3) If the statute of limitations does not bar the parent’s claim, did the district deny the student a FAPE for the 2021/2022 school year? 249513 Findings of Fact & Decision
(4) Is the private school the appropriate education program and placement for the student for the 2021/2022 school year?
(5) If the private school is the appropriate education program and placement for the student for the 2021/2022 school year, do the equities favor the parent for an award of tuition reimbursement? Summary
The district failed to raise the defense of the statute of limitations timely. Therefore, the defense is waived. However, even if the defense was timely raised, the date that the parent knew or should have known that a claim existed for tuition reimbursement for unilaterally placing the student in private school for the 2021/2022 school year was 06/29/2021 – the date of PWN2 and SLL identifying the recommended school placement for the 2021/2022 school year. Therefore, the DPC filed on 06/29/2023 was timely filed on the last day of the statute of limitations.
Under the facts of this case, the district failed to meet its evidentiary burden on Prong I that it provided the student with a FAPE for the 2021/2022 school year. The parent’s documentary and testimonial evidence establish that (a) the private school is the appropriate educational program and placement for the student and (b) the equities favored the parent was neither impeached nor refuted by the district.
Accordingly, as set forth below, I find for the parent on all three prongs of the Burlington/Carter tuition reimbursement framework.
249513 249513 Findings of Fact & Decision
FINDINGS OF FACT
The Statute of Limitations
The district waived the defense by failing to raise it at the earliest possible time in the administrative proceedings under the case law and PHCO.
The district waived the defense of the statute of limitations by failing to raise it either in a formal response to the DPC,[39] the pre-hearing memorandum of law,[40] or a motion to dismiss.[41] The PHCO specifically directed the parties to raise all claims and defenses, at the latest, in a pre-hearing memorandum of law; otherwise, any such arguments raised for the first time in an opening statement or closing argument were waived.[42] The district did not object to the directives within the PHCO and, therefore, has waived them.[43] As discussed in the Conclusions Law, infra, the district’s arguments concerning the timing for raising the defense are without merit.
The parent's DPC is timely, even if the district did not waive the defense.
During the 2020/2021 school year, the CSE held an IEP annual review meeting on 12/23/2020 but after that, never provided a copy to the parent[44] with either (a) the 249513 Findings of Fact & Decision
PWN1 on 1/21/2021 45 or (b) the PWN2 and SLL dated 06/29/2021 (SLL). 46 This testimonial and documentary is neither rebutted nor impeached by the district.
The CSE recommended ICT classes in a non-specialized community school, Special Education Teacher Support Services (SETSS), and Individual Occupational Therapy.[47] PWN1, dated 01/21/2021, was sent to the parent without a SLL. I find that there is no evidence that the district recommended that the student be removed from private school at that time and placed in the community school for the remainder of the 2020/2021 school year. In fact, the evidence demonstrates that the student remained in the private school for the remainder of the 2020/2021 school year.[48] Therefore, any claim relating to the 2020/2021 school year from 01/21/2021 through 06/29/2021 is beyond the scope of the DPC irrespective of the statute of limitations argument.
Accordingly, the parent’s claim for tuition accrued once the PWN2 and the SLL dated 06/29/2021 were sent to the parent. Until the current school year ended and a SLL was issued, any claim for tuition reimbursement would have been premature. A determination as to FAPE includes both the program and the placement. Therefore, the parent’s claim for tuition reimbursement is timely. 249513 Findings of Fact & Decision The student’s educational history.
The student’s May 2018 Neuropsychological Evaluation.
In May 2018, the student underwent a neuropsychological evaluation.[49] The student’s parents were concerned that he struggled “significantly to acquire grade-level reading and writing skills.” 50 In 2018, it was reported that although the student “transitioned smoothly into the structured preschool setting and showed solid cognitive and social skills, [his] graphomotor capabilities appeared to be underdeveloped, and he received occupational therapy for two years to address this issue. Early weakness in letter and number retention was also observed.” 51
The student then transitioned into kindergarten. However, his letter recognition continued “to be weaker as [was] his ability to blend sounds together to read and retain sight words, whereas it is clear when speaking to him that he has excellent vocabulary and is a highly verbal child.” 52 It was documented that the student had learning difficulties in both English and Hebrew, requiring a tutor twice a week and in-school Orton-Gillingham small group instruction. [53] 249513 Findings of Fact & Decision The psychoeducational evaluation determined that the student’s full-scale IQ
Score was in the 86th percentile but that this score was “ significantly misleading.” 54
The psychologist explained why the score was misleading: [The score] is comprised of highly discrepant capabilities that range from Superior to Low Average. That is, [the student] earned a Verbal Comprehension Index of 124 (95th percentile, Superior), a Visual-Spatial Index. of 129 (97th percentile Superior), a Fluid Reasoning Index of 115 (84th percentile, High Average), a Working Memory Index of 81 (21st percentile, Low Average), and a Processing Speed Index of 98 (45th percentile, Average)…
In general, these results largely cohere with [the] results of his previous cognitive testing. Importantly, though, the discrepancies between [the student’s] verbal strengths and his weaker skills in the working memory and processing speed domains are statistically significant and clinically meaningful, as such variability occurs in only 0.6% and 9.9% of youngsters the student’s age, respectively. Moreover, the differences between [the student’s] strong visualspatial skills and his weaker working memory and processing speed capacities are also statistically significant and clinically meaningful, occurring in only 0.6% and 3.8% of youngsters in the student’s cohort, respectively. Finally, [the student’s] ability to reason with nonverbal materials and his weaker working memory and processing speed skills are also notably discrepant. In these ways, [the student’s] pattern of strengths and weaknesses, both between and within the domains, has important implications for how he processes information and learns. 55
In sum, the psychologist opined that the student was “endowed with multiple cognitive strengths coupled with particular weaknesses that are impacting his functioning in a significant regard…[the student’s] ability to hold and manipulate rote information in his working memory is significantly underdeveloped.”[56] The student also has deficits in sequencing information in his working memory which is a “major 249513 Findings of Fact & Decision cognitive factor undermining his reading skill acquisition.” 57 These deficits are directly linked to the student’s ability to (a) blend sounds to make words and (b) sequence sounds and letters appropriately while decoding occurs in his working memory. 58 These deficits also contributed to weaknesses in spelling and mathematics. The student was in the 9th percentile for spelling, the 39th percentile in solving word problems, and the 21st percentile in numerical operations. 59
Based on the psychoeducational evaluation results, it was recommended that the student attend a specialized school environment for cognitively advanced students with dyslexia and learning disabilities. The school should specialize in daily intensive multisensory reading remediation. The student should continue to receive occupational therapy to strengthen his graphomotor integration.[60] Finally, the psychologist made a dual diagnosis of (1) a Specific Learning Disability in Reading (Decoding, Fluency, and Comprehension, with Related Deficits in Math and Spelling) and (2) a Developmental Coordination Disorder. [61]
The district’s December 2018 Social History Evaluation of the student.
In December 2018, the student was in the third grade in the private school. [62] The parent requested an evaluation for special education support services because the 249513 Findings of Fact & Decision student continued to struggle with decoding, handwriting, writing, and reading. 63 The district documented that the parent stated that the student’s “handwriting improved. [H]owever, he could not hold the pencil correctly. During this time, [the student] was in the lowest reading and writing level. He struggled to remember letters and numbers…the student struggles to learn visually and also has difficulty retaining information. During this time, [the student] was pulled out for extra help in reading four days a week for 35 minutes.” 64
The school social worker also noted that the student continued to struggle “with decoding, and often does not know the sounds of letters. When writing, [the student] confuses letters, especially the "b" and ''d." It is difficult for [the student] to pronounce words. He cannot break up a word and sound it out. [The student] does not hear the sounds properly and then struggles to put the sounds together. For example, instead of saying the word ''fox," [the student] says "hox." [65] PRONG I: The student was denied a FAPE for the 2021/2022 School Year.
The documents submitted as evidence by the district demonstrate that the student was denied a FAPE. Despite the student’s low percentiles in working memory (21st percentile, Low Average), processing speed (45th percentile, Average), spelling (9th percentile), solving word problems (39th percentile, and numerical operations (21st percentile),[66] and that he was reading three grades below the fifth grade, the CSE 249513 Findings of Fact & Decision failed to recommend daily individualized, multisensory and intensive remedial reading instruction. [67]
The SETSS services were insufficient to meet the student’s unique needs since these services were to be delivered in the classroom rather than in a separate location in a small group,[68] which is necessary due to his low self-esteem in the classroom. 69 This emotional issue stems from the fact that the student is self-conscious in the classroom because he knows “other boys his age can read, and he cannot.” 70 Therefore, I find that the CSE disregarded the student’s unique social-emotional needs for individualized remedial instruction in a small group outside the classroom. Thus, I find that the notation “[T]here are no needs to be met through special education at this time” in the Social Development Needs of the Student, Including Consideration of Student Needs that are of Concern to the Parent section of the IEP[71] is self-serving and without foundation.
Therefore, the district did not meet its burden because it failed to present documentary or testimonial evidence concerning its determination that SETSS within the larger, less restrictive general education ICT classroom could meet the student’s intensive needs. The management needs[72] do not specify how the student would be 249513 Findings of Fact & Decision supported to meet his goals within the larger environment of an ICT class as opposed to individualized instruction in a small group environment outside the ICT class.
The goals are vague. For example, the student’s decoding goal states that the student will decode words with the “supports of explicit instruction.”[73] Without a witness from the school to testify that the “explicit instruction” would consist of direct targeted phonics instruction or multisensory and remedial instruction to address dyslexia specifically, this goal does not incorporate the neuropsychological recommendations or explain the reasonable and cogent basis for changing his educational placement and deviating from the recommendations. This term “explicit instruction” is repeated throughout the IEP goals without modification or application to the specific goal in different content areas.[74] PRONG II: The private school was the appropriate placement for 2021/2022.
The private school provides the student with an individualized learning environment that allows him to develop optimal academic skills commensurate with his personal learning style and intellectual potential,[75] i.e., he has average to aboveaverage intelligence with dyslexia and a language-based learning impairment.[76] The student’s class consisted of 13 students, two lead teachers, and a teacher resident. In the morning, the students and teachers work on social-emotional skills and work habits, 249513 Findings of Fact & Decision then break into small, homogenous reading groups of three to seven students.[77] Due to the student’s specific reading needs, he receives targeted phonics instruction twice weekly for 40 minutes in a small group.[78] The student also receives two hours a day of multisensory instruction in reading and writing that is integrated across the curriculum in all subjects. [79]
The reading and writing curriculums complement each other. The reading instruction is provided through the Orton-Gillingham, together with the Writing Revolution curriculum and the Preventing Academic Failure program. These programs enable the student to (a) integrate phonetic sounds with handwriting and spelling to perform more complex decoding, (b) extract and synthesize meaning [from reading] and, after that, write essays and research papers, and (c) communicate clearly.[80]
The lead teachers work collaboratively with speech and language pathologists, occupational therapists, and counselors, lowering the staffing ratio to approximately 3:1. This low ratio accommodates the need for push-in related services. This is also the ratio for math groups.[81] The math class is also structured with this research-based, individualized, multisensory instructional format and tailored to the student’s individual learning style and ability. [82] 249513 Findings of Fact & Decision
This individualized curriculum resulted in one full year of progress from 06/2020 to 06/2021.[83] The student made substantial progress in his performance levels in multiple domains; he remained at the same level of performance in others. There is no evidence of regression.
This approach to learning also supports the student’s social-emotional needs within the classroom, which gives him self-confidence to build strong friendships and self-advocate in the school and community.[84] The private school has addressed the student’s needs by implementing the psychologist’s recommendations.
The private school program and placement are uniquely tailored to meet the student’s unique educational needs. PRONG III: The equities favor the parent.
Upon receiving PWN2 and the SLL based on the operative IEP dated 12/23/2020 for the 2021/2022 school year,[85] the parent contacted the recommended school by phone in 07/2021 and then by email on 08/20/2021 but never received a response.[86] Ten days later, on 08/30/2021, the parent served a 10-Day Notice. [87]
The parent’s testimonial and documentary evidence establish long-standing cooperation with the CSE. The parent continually expressed concerns about the student’s reading and math performance from 2018 through 2021. The parent 249513 Findings of Fact & Decision attended the IEP meeting and once again expressed that the student should be provided with a program per the psychologists' and the private school’s recommendations based on the documented progress the student was making in the small private school setting and provided evaluative reports supporting all her requests for an individualized program and placement. Most of the parent’s concerns were ignored. The CSE prepared an IEP that did not provide intensive, small group, remedial, targeted, or individual instruction.
The district’s conduct pre and post-filing of the DPC demonstrates a total lack of cooperation with the parent to address her concerns. The school placement failed to respond to the parent’s emails and phone calls, and the district failed to respond to the TDN and the DPC.
I further find that the parent was proactive concerning the student’s 2021/2022 school year placement. Since the district failed to provide a copy of the IEP for the 2021/2022 school year with PWN1 on 1/21/2021, the parent signed the contract and paid a deposit to reserve a placement in the private school on 01/22/2021.[88] The private school required the contract to be signed no later than 02/8/2021 to hold a placement.[89] However, the contract states that “If, prior to September 15, 2021, Parent(s) withdraw Student as the result of accepting the program recommendation of a Committee on Special Education and place the Student in the public school class or New York State Approved nonpublic school class recommended by a Committee on 249513 Findings of Fact & Decision
Special Education, Parent(s) will be relieved of the obligation to make all payments then due and owing, and will receive a refund for 2021-2022 tuition payments made to date, excluding the non-refundable tuition deposit.”[90] The parent paid the tuition in full in three separate payments on 02/16/2021, 06/01/2021 and 11/01/2021.[91] Therefore, the parent knowingly assumed the absolute financial risk and obligation to pay the private school tuition under the terms of the contract. Further, the parent accepted the risk that she would receive a refund less the $5,000.00 non-refundable deposit if she accepted a placement from the district.
Based on these facts, I find that, at all times, the parent was willing to accept an appropriate public school placement if offered by the district on or before 09/15/2021. Although ten business days from 08/30/2021 were 09/14/2021, the district did not respond to the TDN notice or demonstrate that it was prejudiced in its defense by the 09/15/2021 deadline. The district did not address the parent’s concerns or attempt to mitigate its financial exposure under Prong III before 09/14/2021.
CONCLUSIONS OF LAW & ANALYSIS
Statute of Limitations
Introduction
The IDEA and New York State[92] provide an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child 249513 Findings of Fact & Decision or the provision of FAPE that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.”[93] It is well settled that the date when the parent knew or should have known about the claim is a “fact-specific inquiry.” [94]
The district waived the defense of the statute of limitations.
The defense of the statute of limitations is an affirmative defense.[95] Therefore, the district carries the burden of proof to establish that the parent’s claim is timebarred.[96] This defense can be waived if the district fails to raise it in an affirmative and timely manner.[97] The failure to raise an affirmative defense at the lowest administrative level in the proceedings, either in a written response to the DPC, at the pre-hearing conference, or in a pre-trial motion, constitutes a waiver of the defense. [98] The parent must have an adequate opportunity to address this issue. [99]
Based on the case law, the district’s argument that M.G. v. New York City Dep't of Educ. stands for the proposition that the district can raise the defense of the statute of limitations for the first time at the due process hearing is without merit. The district essentially misconstrues the holding in M.G. The Court in M.G. held that the federal 249513 Findings of Fact & Decision court was precluded from considering the defense because the district raised it for the first time at the federal review level.
Next, a presiding administrative tribunal may regulate the course of a hearing, including fixing the time for filing briefs and other documents.[100] 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.” [101] The sanctions imposed due to a party’s failure to follow the IHO’s directives do not constitute a denial of due process. [102]
Here, the district failed to comply with multiple provisions of the PHCO. The PHCO specifically directed the parties to raise all claims and defenses no later than in a pre-hearing memorandum of law; otherwise, any such arguments raised for the first time in an opening statement or closing argument were waived.[103] The district did not object to the directives within the PHCO and, therefore, has waived them. [104]
The memorandum of law was to be served after the receipt of disclosure and two business days before the due process hearing. This afforded all parties the opportunity to brief all issues based on the disclosure and, more specifically, provide the 249513 Findings of Fact & Decision parent with the opportunity to fully prepare and address the defense of the statute of limitations at the due process hearing. [105]
Therefore, not only did the district consent to the terms of the PHCO, but it failed to avail itself of multiple opportunities to assert the defense outlined in the PHCO. A due process hearing is not a “summary gotcha game.”[106] Therefore, the district has waived this defense by failing to exercise its right to be heard in a timely manner. [107]
Even if the district did not waive the defense, the DPC was timely filed.
Here, the parent could not have known that the school location or IEP for the 2021/2022 school year was deficient until 06/29/2021, when the SLL and PWN2 were provided to the parent. Even then, the parent could not assess the school location’s ability to implement the student’s IEP because she was not provided with the IEP. I find the parent’s testimony and documentary evidence credible. The district did not cross-examine the parent or offer evidence to refute her testimony that the district committed this procedural violation. Therefore, I hold that the statute of limitations accrued on 06/29/2021 for the 2021/2022 school year.[108] PWN1 only barred any potential claim for the remainder of the 2020/2021 school year (for which the parent has not made a claim). 249513 Findings of Fact & Decision
Accordingly, the district’s oral motion to dismiss the claims in the parent’s DPC based on the statute of limitations is denied. Burdens of Proof, Persuasion, and Production
The mechanics of decisions in tuition reimbursement and direct funding cases have 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 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).[109] The party who carries the burden must establish an entitlement to a 249513 Findings of Fact & Decision judgment in their favor by a preponderance of the evidence,[110] i.e., evidence that is of greater weight or more convincing than the evidence offered in opposition thereto. [111]
To meet its burden of proof that the student was provided with a FAPE, the school district must offer a “cogent and responsive explanation for their decision that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[112] Moreover, it is the district’s burden “to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEP[s].”[113] Otherwise, a tribunal is …left to speculate many months . . . many years, later as to how the CSE reached the terms of the child's IEP (i.e., which, if any, evaluative materials the CSE actually considered). The resulting implication of this procedural violation is that it provides the reviewing authority with almost unfettered discretion, as it combs through the evaluative materials generated at the time the IEP was formulated, to match terms of the IEP to any assertion contained in any existing document, irrespective of whether it was actually viewed and considered by the CSE or even in possession of the CSE at the time of the meeting. [114]
This is impermissible because “it permits the reviewing body to offer post hoc rationalizations for how the CSE reached its conclusions and refer to documents that may or may not have been in possession of the CSE at the time of the meeting.” [115]
Here, the district failed to offer a cogent and responsive explanation for the IEP program and placement recommendations to place the student in a larger classroom 249513 Findings of Fact & Decision environment without multisensory, intensive, and remedial instruction in a small group setting.
The district’s argument that it met its burden on the documentary evidence is without legal or factual merit. Prong I – Free and Appropriate Public Education The purpose of the IDEA[116] is to provide a FAPE tailored to the unique needs of the handicapped student through an IEP.[117] A tailored FAPE consists of specifically designed instruction that must meet the child’s unique needs in all educational aspects during classroom instruction[118] and prepare them for further education, employment, and independent living.[119] 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.[120] This personalized instruction must also “be appropriately ambitious in light of [the student’s] circumstances”[121] to (a) “enable the student to be involved in and make progress in the general education curriculum”[122] and (b) open the door of public 249513 Findings of Fact & Decision education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression,”[123] or only “trivial advancement.” [124]
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,[125] and (b) to be provided with “a large measure of participation at every stage of the administrative process.”[126] In sum, a tribunal must conduct a two-prong analysis, i.e., whether (a) the school district complied with the procedural requirements in the IDEA and (b) the IEP as developed is reasonably calculated to enable the child to receive educational benefits. [127]
The documentary evidence does not (a) establish that the IEP was uniquely tailored to meet the student’s needs or (b) provide a cogent and responsive explanation[128] for moving the student to a less restrictive environment without remedial, targeted, and intensive individual and small group instruction outside the classroom.[129] The district did not establish through witness testimony that the recommended school had an ICT class or a SETSS teacher who could provide the 249513 Findings of Fact & Decision student with the needed individualized remedial instruction for continued progress. [130] The district left it to the tribunal to speculate on the rationale for this change in placement and program[131] and how the student would continue to progress. [132]
The tribunal holds that the district’s failure to (a) create an appropriate IEP, (b) offer an appropriate school placement with a small class ratio, (c) timely provide the parent with a copy of the IEP, and (d) provide a cogent and responsive explanation for the change in the student’s program and placement, constitutes a denial of FAPE to the student for the 2021/2022 school year.[133] The tribunal also finds that (a) failing to incorporate the psychologist’s recommendations and (b) providing the parent access to the school location denied the parent meaningful participation in the education process. [134]
When taken together, these violations cumulatively and individually constitute a denial of FAPE. [135] Prong II – Appropriate Unilateral Placement The parent has the burden to establish by a preponderance of the evidence [136] that the chosen unilateral placement is appropriate, i.e., that it provides educational instruction specifically designed to meet the student’s unique special education 249513 Findings of Fact & Decision needs.[137] However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[138] The parent must demonstrate that the private school placement is reasonably calculated to enable the child to receive educational benefits to progress, not regress. [139]
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 receives 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.” [140]
Here, the private school offers the student a FAPE with specifically designed instruction tailored to the student’s unique academic, cognitive, and social-emotional needs.[141] The student’s teachers (a) held bachelor’s degrees in English and Psychology and (b) were dually licensed in general and special education.[142] The homeroom 249513 Findings of Fact & Decision teacher was earning her degree while participating “in intense and structured professional training to be an educator specializing in multisensory instruction for students with language-based learning disabilities.”[143] The teachers provide remedial instruction that addresses the student’s needs due to his dyslexia and language-based learning disability.[144] The overall method of instruction has allowed the student to demonstrate progress without any evidence of regression in all domains and maximize his potential. [145]
Accordingly, the private school is the appropriate placement for the student. 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."[146] 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[147] and with adequate notice to the district,[148] 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 249513 Findings of Fact & Decision charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect. [149]
In New York, the district must prove that the equities do not favor the parent. [150] Still, the parents must identify the specific remedy they seek so that the tribunal can craft an appropriate award.[151] 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.[152] 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 justified153 and with adequate notice to the district, [154] b) $60,445.50 155 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. [156]
153 E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
155 This is the cost of the tuition after the deduction for religious instruction (T48:6-25). 249513 Findings of Fact & Decision The parent assumed the unconditional obligation to pay the tuition, 157 with the right to a refund less the non-refundable deposit of $5,000.00 if she accepted a placement from the district on or before 09/15/2023. [158]
The equities favor the parent for a tuition reimbursement award of $60,445.50. The contract and proof of payment were authenticated in the record and need not be resubmitted to the implementation unit.
ORDERS
Based upon the foregoing findings of fact and conclusions of law, it is hereby
ORDERED that the respondent/district’s oral motion to dismiss the DPC is DENIED, and it is further
ORDERED that the respondent/district denied the student a FAPE for the 2021-2022 school year, and it is further
ORDERED that the private school was the appropriate placement for the student for the 2021-2022 school year, and the petitioner/parent’s request for tuition reimbursement is GRANTED, and it is further
157 P-V (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 a defense. See also Cohen v. N.Y. City Dep't of Educ., 2023 U.S. Dist. LEXIS 171815, *18 [SDNY 2023], holding that “To require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay…skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. E.M. v. New York City Dep't of Educ., 758 F.3d 453. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment. Mr. & Mrs. A., 769 F. Supp. 2d 403, 428 [SDNY 2011].” 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). 249513 Findings of Fact & Decision
ORDERED that the respondent/district shall reimburse the parent $60,445.50 for the cost of the private school tuition for the 2021/2022 school year, within 30 days of the date of this order.
SO ORDERED:
Teresa R. Nuccio, Esq.
Impartial Hearing Officer (Digitally Signed)
Teresa R. Nuccio, Esq.
Impartial Hearing Officer
Dated: November 9, 2023
249513 249513 Findings of Fact & Decision
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has 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 of with the Office of State Review of the State Education 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.
249513 249513 Findings of Fact & Decision
APPENDIX A – REDACTION PAGE
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: New York City Department of Education (District)
Hearing Requested by: REDACTED (Parent)
Administrator: REDACTED Head of (Private School)
249513 249513 Findings of Fact & Decision
APPENDIX B – DOCUMENTS ADMITTED IN EVIDENCE
PARENT Description Date PAGES
EXHIBIT
A. Impartial Hearing Request with Receipt 06-29-2023 03 pages
B. Ten-Day Notice with Receipt 08-30-2021 04 pages
C. E-mail to School Placement 08-20-2021 01 pages
D. Enrollment Contract 01-22-2021 05 pages
E. School Profile Undated 04 pages
F. Attendance Record 06-15-2022 01 pages
G. Class Schedule Undated 01 pages
H. Progress Report June 2022 28 pages
I. Student Data Report 06-08-2022 05 pages
J. Tuition Affidavit 02-04-2022 01 pages
K. Proof of Payment 02-16-2021 06-01-2021 11-01-2021 04 pages
L. Affidavit of Testimony, [REDACTED], Head of 09-26-2023 Innovation and Integration of the [Private School] 11 pages
DISTRICT DESCRIPTION DATE PAGES
EXHIBITS
1. IEP 12.23.20 43 pages DOE
2. Prior Written Notice 01.21.21 4 pages DOE
3. Prior Written Notice and School Location Letter 06.29.21 7 pages DOE
4. Neuropsychological Evaluation 249513 05.14.18 18 pages DOE
5. 249513 Findings of Fact & Decision Classroom Observation 02.01.19 3 pages DOE
6. Occupational Therapy Evaluation 02.11.19 6 pages DOE
7. Social History Report 12.14.18 4 pages DOE
8. Progress Repot 06.16.20 21 pages DOE
IHO DESCRIPTION DATE PAGES
EXHIBITS
I. Email Chain/DPH Invite with PHCO 08/31/2023 249513 07/13/2023 249513 Findings of Fact & Decision 10 pages
Footnotes
[1] P-A
[2] P-A001, DOE-1-42
[4] P-A001, B-A001, and DOE-1, pp. 35 and 40
[5] DOE-1-39
[6] P-M001:¶2
[7] P-M001:¶9
[8] P-A001:¶2, P-B001:¶2 249513
[11] T8-9 (Transcript, pages 8 and 9)
[14] T20, 22, 32, and 48 (The affidavits of the Head of School [P-L] and the Parent [P-M] were admitted into evidence once the witnesses were sworn in and their respective affidavits were authenticated.) 249513
[15] District: T22-23 and Parent: T24-26
[16] T22:21-25
[17] T23:3-15
[18] T23:16-18
[19] T24:2-15
[20] T24:16-21 249513
[21] T25:1-10
[22] T24:22-25 and 25:22-25
[23] T25:19-22, 26:1-6
[24] T26:14-21
[28] T49:8-12
[29] T49:13-15
[30] T49:16-19
[31] T50:3-16 249513
[32] T50:17-25, 51:1
[33] T52-55 249513
[34] T51:11-25, 52:1-6
[35] T53:7-17
[36] T53:18-25
[37] T53:7-17
[38] T55:4-9 249513
[39] IHO-I-2:¶6
[40] IHO-I-2:¶9
[41] IHO-I-2:¶10
[42] IHO-I-2:¶¶9-11
[43] IHO-I-6:¶17
[44] P-A001:¶2, P-B001:¶2 249513
[47] P-A001, DOE-1-35, 39, M-001:¶10
[48] The student’s IEP indicates that a Spring [progress] Report from the private school for 2020 was reviewed (DOE-1- 1). 249513
[49] DOE-4-1 The May 2018 neuropsychological evaluation incorrectly states that the student is in the first grade. The student’s chronological age places him at the end of the second grade in 5/2018. The mother’s affidavit testimony states that the student was in the sixth grade for the 2021/2022 school year (P-M001:¶2)
[53] DOE-4-2 249513
[56] DOE-4-5 249513
[60] DOE-4, pp.11-12
[61] DOE-4, pp.11-12
[62] It is noted that the Social History Evaluation incorrectly states the student’s grade as the first grade. The student’s chronological age places him in the third grade in 12/2018, and the 2/1/2019 Classroom Observation (DOE-5) also contains the same error. The mother’s affidavit testimony states that the student was in the sixth grade for the 2021/2022 school year (P-M001:¶2). 249513
[65] DOE-7, pp.2-3
[66] DOE-4-3 249513
[67] DOE-4, pp.11-12
[68] DOE-1-35
[71] DOE-1-23
[72] DOE-1-24 249513
[73] DOE-1-26
[74] DOE-1, pp.26-34
[75] P-L002:¶4
[76] P-L003:¶6 249513
[77] P-L005:¶14
[78] P-L005:¶14
[79] P-L003:¶6, L006:¶15, P-L007-008:¶¶19-20,
[80] P-L007:¶¶17-18
[81] P-L005:¶14
[82] P-L006:¶16 249513
[83] DOE-8 and P-H
[84] P-L006-007:¶16
[85] P-M001:¶9
[86] P-A001-002, P-C, B-001, P-M002:¶17-18
[87] P-B 249513
[88] P-D005
[89] P-D001 249513
[90] D-002
[91] P-J and P-K
[92] Educ. Law § 4404 (1) (a) 249513
[93] Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 114, quoting 20 U.S.C. § 1415 (b) (6) (B).
[94] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393, *52 [EDNY 2014]
[95] K.H. v. New York City Dep't of Educ., 2014 U.S. Dist. LEXIS 108393, *52, citing M.G. v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 296, 305 [SDNY 2014]
[96] Id.
[97] M.G. v. N.Y. City Dep't of Educ., 15 F. Supp. 3d 305, citing Somoza v. New York City Dep’t of Educ., 538 F3d 111, fn.50, and European Am. Bank v. Benedict, 90 F.3d 50, 54, fn.51 [2d Cir. 1996]
[98] R.B. v. Dep't of Educ. of the City of New York, 2011 U.S. Dist. LEXIS 106273, p.15-19 [SDNY 2011]; and see 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 304, 306
[99] Application of a Student with a Disability, Appeal No. 23-036, p.8 249513
[100] State Administrative Procedure Act § 304 [4] [emphasis added]
[101] Application of a Student with Disability, 23-019, p.14 [internal citations omitted]
[102] Id.
[103] IHO-I-2:¶¶9-11
[104] IHO-I-6:¶17 249513
[105] Application of a Student with a Disability, Appeal No. 23-036, p.8
[106] Jusino v. New York City Dep’t, 2016 U.S. Dist. LEXIS 203006, *17 [EDNY 2016], affirmed 700 Fed. Appx. 25 [2017]
[107] Application of a Student with Disability, 23-019, p.14 [internal citations omitted]
[108] K.C. v. Chappaqua Cent. Sch. Dist., 2019 U.S. Lexis 218144, *40 [SDNY 2019]; 20 U.S.C. §1415 [f] [3] [D] [ii], 24 C.R.F. 300.511 [f], Education Law § 4044 [1] [1], and 8 NYCRR § 200.5 [j] [i]; and see Bd. of Educ. v. CM, 744 Fed Appx. 7, *11 [2d Cir. 20189] 249513
[109] 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, 249513 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.
[110] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 521
[111] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[112] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1002 [2017] [hereinafter “Endrew F.”]
[113] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[114] Id. (italics added).
[115] Id. (italics added). 249513
[116] 20 U.S.C. §§ 1400-1482
[117] 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].
[118] Id. at p.188
[119] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; and 20 U.S.C. § 1400 [d] [1] [A]-[B].
[120] Rowley, 458 U.S. 204
[121] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1000
[122] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii]. 249513
[123] 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]
[124] See P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2nd Cir. 2008]
[125] Rowley, 458 U.S. 182-183 (quotations omitted)
[126] Rowley, 458 U.S. 205
[127] 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
[128] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002
[129] Rowley, 458 U.S. 182-183 (quotations omitted) 249513
[130] M.O. v. N.Y. City Dept. of Educ., 793 F.3d 244; Rowley, 458 U.S. 204
[131] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 110
[132] Rowley, 458 U.S. 204
[133] Rowley, 458 U.S. 205
[134] Rowley, 458 U.S. 205
[135] R.E., 694 F.3d 190-191
[136] Gagliardo, 489 F.3d 105, 112 [2d Cir. 2007] [internal citations omitted] 249513
[137] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[138] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006], citing Florence County Sch. Dist. Four v. Carter, 510 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.”)
[139] Gagliardo, 489 F.3d at 112 [internal citations omitted]
[140] Id.
[141] Rowley, 458 U.S. 183 and 20 U.S.C. §§ 1400-1482
[142] P-L005:¶13 249513
[143] P-L005:¶13
[144] P-L003:¶7
[145] Gagliardo, 489 F.3d 112
[146] Forest Grove Sch. Dist. v. T.A., 557 U.S. 246-247
[147] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[148] 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 249513
[149] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[150] Education Law § 4404 [1] [c]
[151] 8 NYCRR § 200.5 [i] [1] [v]
[152] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[154] 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
[156] E.M. v. New York City Dep't of Educ., 758 F.3d 461 249513
[158] P-S p.2, ¶5 249513