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CASE NUMBER: 602246 - NYC: 250109
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED
Request Date/Date Complaint Filed: 07/05/2023
Date(s) of Hearing: 09/05/2023, 10/11/2023, & 10/12/2023
Actual Record Closed Date: 11/17/2023
Date of Decision: 11/17/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 5, 2023:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative 1”) For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 11, 2023:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative 2”) For the DOE: District’s representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 12, 2023:
For the Student:
Parent’s representative
REDACTED (hereinafter referred to as “Parent”)
REDACTED (hereinafter referred to as “Parent’s Witness 1”) REDACTED (hereinafter referred to as “Parent’s Witness 2”) For the DOE: District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”), with a disability classification of “Multiple Disabilities” on Student’s latest IEP on record (Ex. DEO-1). Student’s eligibility for special education supports and services is not in dispute.
On July 5, 2023 [2], Parent, through Parent’s representative 2’s firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on August 8, 2023, after another hearing officer was recused, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent sought, inter alia, a finding that the DOE denied Student a FAPE for the 12-month 2023-2024 school year (“SY”), an order that the DOE directly fund Student’s placement at the Attending School for that SY, relief pertaining to transportation, and any further relief deemed just and proper (Ex. P-A-12, & P-A-13).
Pendency was requested in the DPC (Ex. P-A-4, & P-A-13) and a pendency hearing was scheduled for September 5, 2023 [3]. The parties ultimately resolved pendency amongst themselves, and the Pendency Implementation form was filed in the Impartial Hearing System as an agreement on pendency (Ex. IHO-I) (T. P36).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[4] and its implementing regulations,[5] and the New York State Education Law[6] and its implementing regulations. [7] 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 DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[8] It was confirmed that the final relief sought is subsumed under the IDEA and therefore Section 504 is not addressed separately in this decision (T. P30).
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative made an opening statement confirming that the DOE would not be putting on a Prong I case but reserving the DOE’s right to challenge Prong II and raise any relevant Prong III factors supported through evidentiary materials (T. P53-54). There was a formal concession made regarding Prong I. District’s representative confirmed that the DOE rested its case (T. P74) and waived the DOE’s closing statement (T. P121).
Parent’s representative 2 made an opening statement addressing, inter alia, Student’s multiple disabilities and that the profile of students served by the Attending School is very much in line with Student’s profile, how the evidence would demonstrate the type of program Student has at the Attending School and how Student has benefited from it, how there are no equitable considerations that should bar relief, especially where the DOE has conceded Prong I, and detailing the relief sought (T. P54-P58).
There were three witness affidavits included in Parent’s disclosure (Ex. P-M, P-T, P-U, & P-V 9). District’s representative cross-examined the three witnesses. All the affidavits were admitted to the record in support of Parent’s case. Parent’s representative 2 confirmed that Parent rested Parent’s case (T. P120) and made a closing statement (T. P122-P126).
The DOE, through the District’s representative, initially submitted four documents for admission to the record and Parent’s representatives submitted twenty-three. There were formal objections raised to specific exhibits, which were addressed on the record (T. P58-73). All exhibits that are admitted to the record or marked for identification are listed below (see Appendix B).
ISSUES IN DISPUTE
The DOE conceded that it failed to provide Student with a FAPE for the SY at issue and did not present a Prong I case (T. P44, & 53).
9 Exhibit P-W is also an affidavit but is a Spanish translation of Exhibit P-V.
Parent is seeking in the DPC a finding that Parent’s placement at the Attending School for the 12-month 2023-2024 SY is appropriate for Student (Prong II) (Ex. P-A-12) To the extent that the record addressed any equitable considerations, those would need to be considered although the DOE did not raise any. Accordingly, Prongs II and III must be determined, together with the appropriate relief to be ordered, if any.
OUTCOME
Given the DOE’s concession regarding Prong I, and my determination that Parent had met her Prong II burden, relief is being granted in favor of Parent.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [10].
If a procedural violation is alleged, an administrative officer 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 [11]. The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [12].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [13]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [14]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [15].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. [16]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[17]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. [18]
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [19]
The DOE elected to concede that it failed to provide Student with a FAPE for the 2023-2024 SY. Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the 2023-2024 SY.
In the circumstances, I find that there was a denial of a FAPE for the 2023-2024 SY (with a risk that this will continue for the remainder of the 2023-2024 SY) and the District did not discharge its burden in this regard. Accordingly, Parent has met the first criterion of the three-part test set out in the Burlington/Carter case for funding/reimbursement for the cost of the tuition for Student’s placement at the Attending School for the 2023-2024 SY. Prong II - Appropriateness of Parent’s Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [20]
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[21] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [22]
The Judges in the Gagliardo case wrote that “no 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 constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. …
They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[23] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parent’s representative 2 presented testimony by Parent’s Witness 1, Parent’s Witness 2, and Parent, and submitted documentary evidence in support of the Parent’s position that the Attending School placement was (and is) an appropriate placement for the 2023-2024 SY.
Parent’s Witness 1 testified by affidavit (Ex. P-T), inter alia, as to:
Witness 1’s title, namely a special education teacher employed at the Attending School; Witness 1’s educational background, credentials, and work experience; Witness 1’s duties and responsibilities; Witness 1’s familiarity with Student, namely: being Student’s classroom teacher during the 2022-2023 and 2023-2024 SYs; working with Student directly in the classroom; meeting with multiple members on Student’s therapy team to speak with them about Student’s current educational and therapeutic program; observing Student in therapy sessions, both in 1:1 sessions as well as in a group setting while amongst peers; reviewing documentation such as Student’s school IEP, and progress reports; and initially establishing correspondence with Parent through a questionnaire regarding Student’s needs.
How Student has been diagnosed with Student’s Diagnoses; how Student is non-verbal, non-ambulatory, has limited gross and fine motor skills, requires maximum assistance with all living skills and is not yet toilet trained, has significant academic, communication and social/interpersonal needs; and that Student demonstrates great potential to learn, is very social and expressive and has a great sense of humor.
How, with respect to classroom participation, Student engages with moderate-maximum verbal, visual, tactile, and auditory cueing; for hands-on activities, hand-under-hand assistance is provided; how Student responds well to routine classroom activities such as shared reading; how Student shows engagement by using nonverbal communication methods such as facial expression and vocalization, using some words and activating mid-tech, a voice output communication aid to make comments; how Student participates in lessons from Student’s wheelchair with accessories; how Student requires 1:1 adult support for redirection and breaks; how Student requires structured break-times to take walks in Student’s chair and move around the classroom, which improves attention and self-regulation; how Student benefits from modeling when requesting breaks on Student’s device and is working on making independent requests; and how Student benefits from participating in lessons from the mat, especially when Student is feeling particularly tired or frustrated.
How Student uses facial expressions, body language, vocalizations, gestures and reaching to communicate; how Student has a communication device and such device aids in Student’s classroom participation; how Student also activates a variety of augmentative and alternative communication systems; how Student uses a mid-tech Voice Output Communication device to make selections and comments; how Student also communicates using a combination of non-verbal methods; and how Student is socially aware and will turn Student’s head towards a familiar voice and preferred adults.
In terms of literacy skills, Student receives whole group instruction of six students, in addition to smaller group and 1:1 instruction; how literacy instruction is differentiated so that Student is able to attend and interact, with Student’s literacy program addressing reading, writing, communicating and listening; how Student is assessed at the Emergent Literacy Phase and is an emergent reader and writer; how Student shows interest in books, particularly when there is texture and sound; how Student can visually attend to a book for a few seconds before requiring redirection; how when provided physical hand-under-hand support, Student will turn the pages; and how Student receives instruction to develop alphabetic knowledge and phonological awareness.
How in writing, Student receives instruction regarding letter and symbol recognition, practicing, and writing using an alternative pencil; how in math, Student is exposed to foundational math concepts such as matching, colors, shapes, numbers, counting, and sequencing; how Student is working on identifying shapes and explores them tactilely; how Student uses a switch and voice output communication aid to count along with maximum aid; how Student demonstrates an awareness of the sequence of Student’s daily schedule using an object schedule; how Student participates in the sequencing of Student’s day by pushing the object symbol into the finished bin; and how Student is able to anticipate upcoming sessions by touching the objects and is provided with auditory descriptions.
How Parent’s Witness 1 is familiar with the academic program developed for Student for the 12-month 2023-2024 SY and has been responsible for implementing Student’s current program as set forth in Student’s school IEP; how Student requires a 6:1:1 special class placement that allows for frequent 1:1; how Student’s physical, medical, learning and communication needs require this intensity of an academic environment and adult-to-student ratio; how Student requires significant individualized attention to meet Student’s daily needs, to access instruction, and for safety; how Student requires full support throughout the day, as well as consistent and frequent verbal, visual, and physical support to help Student maintain attention, for communication and all interactions, including safety, engaging in activities, health and feeding needs, assisted daily living skills, and using Student’s communication device.
How classroom instructional blocks are one-hour long, allowing time for transitions, setting up student communication, taking breaks as needed, and allowing for sufficient processing and response time; how Student has been placed in a classroom with similar aged students, is matched with peers who are at a similar social engagement to Student, and is working on many of the same goals as many of Student’s peers in the areas of literacy, math, and other academic subjects.
How Student participates in an extended school day from 8:30 to 4:00pm, receives therapy during this time and breaks are scheduled throughout the day as needed; how music and auditory cues are used to signify auditory cues; how Student benefits from an extended lunch period of an hour, sometimes longer; how Student benefits from intensive 60-minute therapy sessions, on a push-in and pull-out basis, which allows for integration of therapy within the academic context, generalization of skills, and close monitoring by multiple professionals, allowing for consultation about progress.
How Student benefits from classroom interventions of schedules and transition routines provided by the teachers and paraprofessionals within the class; how the school has a robust enrichment program that includes activities focusing on daily living skills, social skills and leisure, which Student needs to progress; how Student receives explicit instruction in social skills through engaging in back-and-forth conversations, giving and asking permission, and playing collaborative games; how each week Student participates in a social club of Student’s choice to develop a hobby and mingle with peers; and how Student receives explicit instruction in assisted daily living skills during the health and hygiene block.
How Parent’s Witness 1, as the classroom teacher, is the point person for communication regarding Student’s educational programming and progress; how team meetings occur to discuss Student’s progress towards Student’s goals throughout the week; how providers frequently push-in to the classroom and preview lessons prior to best suit Student’s needs; and how team members are made aware of lesson plans and offer suggestions and modifications best to suit Student’s individual needs.
How Student being in a 6:1:1 24 class environment is necessary to suit Student’s needs; how teachers, therapists, and paraprofessionals monitor their volume levels to maintain a calm environment; how the classroom lights are always dimmed and Student participates using modified cortical vision impairmentfriendly materials, to support Student’s cortical vision impairment; how black backgrounds and flashlights are also used to encourage Student’s sustained visual attention.
24 Parent’s Witnesses 1 and 2 testified in cross-examination that there are currently seven students in the classroom during this SY (T. P90, & P103, respectively).
How Student has extensive needs in regard to adapted materials and program modifications, including:
Student requires sensory related supports (e.g., reduced auditory and visual distractions and clutter); extended time; spatial accommodations; instructional modifications and materials; a communication device and appropriate programs and tools; alternative pencils; self-care equipment (adapted toileting); adapted toys and equipment; mobility related equipment; adapted tools for writing as Student cannot hold a standard pencil or keyboard; and a wheelchair used for mobility and postural support, with a tray to have access to all materials needed for learning.
How Student has a seizure disorder, is on a particular diet and requires medication and a health plan; how Student’s food and medication regiment must be strictly followed; how Student requires close monitoring to prevent injury and aspiration when eating or drinking; how Student’s vision and mobility issues also place Student at increased risk for injury; how Student wears a diaper and is working on a toileting program; and how Student is inconsistent in demonstrating discomfort when wet or soiled and requires close monitoring to prevent skin breakdown for these reasons.
How considering Student’s complex medical and educational needs, Student’s current academic program is appropriate for the 2023-2024 SY, it having been designed to meet Student’s functional and academic needs; how Student receives 1:1 sessions throughout the week that address vision education, physical therapy, speech therapy, and occupational therapy; how Parent’s Witness 1 has weekly 1:1 sessions with Student where Student’s academic goals are addressed; and how part of Parent’s Witness 1’s role is to bring the educational team together and ensure that all team members, which consist of the paraprofessional, occupational therapist, speech and language therapist, physical therapist, and vision education therapist, collaborate and provide support in a transdisciplinary approach.
How, in Parent’s Witness 1’s professional opinion, Student was (and is) making appropriate educational progress, which was further elaborated on during cross-examination (T. P97, & P98), including:
How Student had demonstrated sustained tolerance for interacting with classroom materials and is demonstrating an increased understanding of ‘first, then’ routines within Student’s daily routines; how Student has demonstrated progress across the academic domains of reading, writing, math, and socialemotional development; and how Student participates during shared reading activities by using switches on Student’s voice output communication aid to make comments and has demonstrated increased intentionality by activating those switches more frequently and at appropriate times.
How Student has been working towards making relevant comments during shared readings; and how Student participates in the comment selection process by selecting Student’s preferred comment after being presented them by Student’s communication partner using partner assisted scanning.
How Student participates in writing activities using Student’s alternative pencil and partner assisted scanning; how Student has shown an understanding of the writing process by waiting until all of the letters have been read aloud before making Student’s selection; how Student has demonstrated increased intentionality, with examples provided; how, in math instruction, Student has demonstrated increased intentionality and interest in identifying objects as the same; how Student has demonstrated satisfaction and enjoyment when provided detailed verbal descriptions and hand-under-hand support when engaging with items of various sizes, textures, and colors, by laughing and smiling.
How Student has demonstrated increased familiarity with Student’s augmentative and alternative communication devices, and an eagerness to communicate with people around Student, with examples provided; how Student’s increased intentionality and enthusiasm in using Student’s devices has led
Student to engage more appropriately with other adapted materials as well.
How Student’s school has also seen progress in the functional skills that are necessary within the academic goals, such as developing tolerance for different textures and items, and keeping them in Student’s space, as well as grouping items of similar textures.
How Parent’s Witness 1’s conclusion is based on progress reporting, assessment results, as well as formal/informal observations in both group and a 1:1 setting; how Student is definitely accessing Student’s education and making progress; and how the academic program developed for Student is appropriate and designed to meet Student’s unique sensory, visual, behavioral, and educational needs.
Parent’s Witness[1] testified during cross-examination and elaborated on the ongoing meeting progress, how the team goes over each provider’s goals, provides feedback, makes sure there is no overlap in providers, and ensures that they are all on the same page with the IEP the school develops for Student (T P95). Parent’s Witness
How the school provides small classes with a low student-to-teacher ratio, with classes ranging from 6 to 8 students led by one teacher and each student being assigned one 1:1 paraprofessional assigned to them at all times; how the school implements a variety of curricula (Core Knowledge Curriculum Series; Literacy Through Unity curriculum; “The Letter of the Day” program; Equals curriculum; Core Knowledge Curriculum Series; Meville to Weville curriculum; and Conover Curriculum); how the school’s instructional model is based upon ongoing assessment and evaluations; and how educational and therapeutic decisions about the location, group size, intensity, and duration of interventions are based upon individual student response to intervention, allowing the school to assess students’ responses to the interventions and modify interventions as necessary.
How service providers follow a “push-in/pull-out" therapy model when working with students, how intensive occupational therapy, speech and language therapy, physical therapy, hearing therapy, and vision therapy as needed are provided to students; how progress for ongoing goals is monitored and documented in quarterly progress reports; how the professional from each discipline working with a student completes a thorough assessment to determine the student’s current levels, therapeutic or learning needs, as well as their progress; how the model employed is very collaborative, with the school’s interdisciplinary team for each student collaborating regularly and extensively about programming and progress for each student, also addressing what each discipline focuses on (with examples provided).
How students have many opportunities to visit and interact with the community (with examples provided); how all of the school’s teachers hold or are working towards master’s degrees, and faculty and staff typically come to the school with previous special education experience; how the school has significant professional development opportunities both internally and externally for faculty and staff.
Parent’s Witness 2’s familiarity with Student, who became a student at the school for the 2020-2021 SY, after having been assessed by the school’s multidisciplinary team, and the team determining that Student was an appropriate candidate for placement; how Parent’s Witness 2 visits Student’s classroom each day, has taught several specialty classes such as art and science in the classroom, and works directly with Student’s teacher and her supervisor; how Parent’s Witness 2 joins Student’s team and classroom meetings to discuss Student’s progress, goals, and any adaptations needed.
How in Parent’s Witness 2’s professional opinion the Attending School was appropriate for Student to attend for the 2020-2021 and 2021-2022 SYs, that Student continued to benefit from the school’s program in the 2022-2023 SY, and that based on Student’s progress, strengths and weaknesses as Student transitioned from year to year, Student remained an appropriate student for the intensive, 12-month school program and continues to benefit from the programing Student receives for the 2023-2024 SY.
How Parent’s Witness 2 participated in the development of Student’s individualized program for Student for the 2023-2024 SY, and was involved in monitoring Student’s program; how Parent’s Witness 2 believes, based on her direct knowledge of Student, that the IEP developed by the school team was reasonably calculated to enable Student to derive educational benefit and make appropriate progress for the 2023-2024 SY; how for the 2023-2024 SY, the school’s interdisciplinary team recommended that Student be placed in a 6:1:1 special education classroom due to Student’s physical, medical, learning, social/interpersonal, and communication needs; how Student requires a high adult-to-student ratio to attend to instruction and access Student’s education; how Student can become overwhelmed by noise and visual distractions; and how a small class size enables the room and environment to be fully modified for Student’s significant individual needs.
How Parent’s Witness 1, who holds a Bachelor of Science, with a Dual Major in Early Childhood/Childhood Education and a Master of Science in Education, Severe Childhood and Multiple Disabilities, as well as a dual New York State Early Childhood and Childhood Education Certification, is the lead classroom teacher for Student for the 2023-2024 SY; and how Student also requires a dedicated 1:1 paraprofessional because Student needs full support throughout the school day for activities of daily living, confirming Parent’s Witness 1’s testimony regarding the support Student receives from Student’s paraprofessional throughout the day, who uses a variety of techniques taught by Student’s team, including a Board Certified Behavioral Analyst.
How Student requires vision services and for the 2023-2024 SY it was recommended that Student receive 4x60 minute individual vision therapy sessions to address Student’s diagnosis of Cortical Visual Impairment and Traumatic Brain Injury; how Student also require a program that outlines in great detail all the accommodations Student requires in the classroom, such as: the use of a black background to eliminate visual complexity at near distance; use of a flashlight to highlight items that are presented; provision of verbal descriptions to assist with visual processing; dimmed lighting to avoid glare; preferential seating to allow access to materials; minimal background noise to help encourage vision use; and the use of compensatory strategies when Student is visually fatigued.
How Student requires speech/language services 4x60 minutes per week on an individual basis to address Student’s expressive and receptive communication skills and feeding skills; how the structured and intensive 1:1 60-minute sessions are integral to Student’s overall communication growth and potential to be a competent communicator and participate in Student’s educational program; how Student requires occupational therapy 5x60 minutes per week on an individual basis; how Student also requires physical therapy 5x60 minutes per week on an individual basis to address gross motor and ambulation skills.
How in 2023-2024, Student continues to demonstrate progress in Student’s academics and therapies; how Student’s teacher notes the progress that Student has already made in the area of social-emotional development; and how the teacher reports that Student has demonstrated increased success in independently using Student’s device on Student’s tray to say 'I need a break' instead of pushing the device or tray away; how for the 2022-2023 SY in the areas of reading, writing, math, vision education, speech therapy, occupational therapy, and physical therapy, Student had made progress – with detailed examples provided for each discipline – and continues to benefit from the interventions and learning, with new learning objectives and goals being included for the 2023-2024 SY in the area of literacy, math, vision education, speech therapy, occupational therapy (including self-care), and physical therapy.
How Parent’s Witness 2 believes that the Attending School continues to be an appropriate and necessary program for Student for the 2023-2024 SY, that Student continues to receive educational benefit and make appropriate and meaningful progress across all domains; and how it is her professional opinion that the Attending School is an appropriate program and placement for Student for the 2023-2024 SY.
Parent’s Witness 2 testified during cross-examination and redirect examination, inter alia, as to: how the push-in/pull-out model works (T. P106, & 107); how students are grouped together and how Student’s class was put together for grouping (T. P107, & P108); and how in Parent’s Witness 2’s opinion Student is appropriately placed in the class Student is in for the current SY (T. P108).
Parent testified by affidavit (Ex. P-V), inter alia, as to:
How, despite Student’s disability, Student is capable of learning in the right school environment; how throughout the years Student has been at the Attending School, Parent has seen Student make progress in every area of Student’s development and that Student continues to learn and improve from the education provided by the school; how since the start of the 2023-2024 SY Student has already made progress and is benefiting from Student’s program at the school, including how Student has improved in using facial expressions a lot to communicate and will move Student’s head when Student does not want something, how when Student wants something, Student will look at the object and is better at moving Student’s hands towards it, and is adding more ways of communicating Student’s feelings; how Parent saw progress in Student’s emerging academic skills, observing that Student showed more interest in books, and continued to have more interest in the objects around Student; and how Parent noticed that when Student saw an object that interested Student, Student got close to the object and reached for it with Student’s hands, Student would grab the item, look at it and then throw it on the ground.
How for the 2023-2024 SY, the Attending School continued to recommend a small class size with a student-to-teacher ratio of 6:1:1 plus a 1:1 paraprofessional for Student; how Parent agrees that this small class size is necessary for Student to be able to learn; how since the beginning of the SY, based on Parent’s conversations with Student’s teachers and what Parent see at home, Student continues to improve and make progress in Student’s interest in books as well as in math concepts; how Student is more aware of Student’s surroundings; how Student is showing quicker responsiveness by turning Student’s head, making eye contact, and vocalizing in response to sounds or when called; how Student has also been using Student’s hands more effectively to indicate Student’s preferences for food and to grasp objects that Student wants; how Student seems to be enjoying mealtimes, savoring Student’s food and drinking more water; and how at home, they are working on decision-making with Student by presenting Student with three options and letting Student choose the option that Student prefers.
How for the 2023-2024 SY, the school continues to recommend that Student receive speech and language therapy 4x60 minute sessions per week, and how Parent agrees that Student continues to need this level and intensity of speech and language therapy to address Student’s communication needs, particularly since Student is non-verbal; how since the beginning of the 2023-2024 SY, Student has continued to maintain Student’s learned communication skills and Parent has already seen that Student continues to improve; how Student is vocalizing more and engaging in conversation; how Student is responding more often to questions with facial expressions; how Student is working on vocalizations, using the words Student knows more often and learning new words; how different foods are being introduced to help Student become more comfortable with various textures; and how Parent has seen that Student continues to be more aware of Student’s ability to communication and uses more controlled body language to communicate wants and desires.
How for the 2023-2024 SY, the school continues to recommend that Student receive occupational therapy 5x60 minute sessions per week, and how Parent agrees with this recommendation because of Student’s need for assistance for all of Student’s daily needs; how Parent has already seen continued improvement at home since the beginning of the 2023-2024 SY, having observed that Student has made improvements in using Student’s hands more appropriately, such as holding objects and extending Student’s hands towards desired items; how Student has made progress in keeping Student’s hands out of Student’s mouth with the help of a recommended chewy tool; how different objects are being used to continue working on this skill with Student; and how Student is being helped to use Student’s hands more and hold objects for longer periods.
How for the 2023-2024 SY the SY recommended that Student continue to receive 5x60 minute sessions per week of physical therapy, and how Parent agrees with this recommendation based on Student’s need for warm-up activities prior to working on gross motor activities and because it takes a lot of time to transfer Student from Student’s chair and manage Student’s equipment; how this level of physical therapy services has helped Student continue to improve and progress; how Student is showing improvement in balance and coordination while standing, sitting, and walking; and how the stander is used for one hour per day at home to strengthen Student’s leg muscles.
How for the 2023-2024 SY the school recommended an increase of Student’s vision education service and changed Student’s vision services, as the school believes that Student needs more intensive vision services and therefore recommended 4x60 minute sessions per week; how Parent agrees that Student needs this level of service because Student gets very tired and continues to need breaks often; how since the beginning of the SY, Parent has already seen improvement in Student’s use of vision; and how Student has made progress in using both eyes to observe objects, engage in play, and follow instructions.
How Parent attributes the progress that Student has made to the appropriate level of programming for Student at the Attending School, the collaboration of the teachers and all the providers, and the intensity of the services; how it is obvious to Parent that all the teachers and therapists work together to make sure that Student’s needs are being met and that Student is safe and engaged at school; how Student continues to make progress at the Attending School during the 2023-2024 SY, which Parent believes has provided Student with an appropriate program to meet Student’s unique individual needs; and how Student would not be able to make meaningful progress without the level of support Student is receiving at the school.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with highly specialized needs resulting from some form of brain injuring and/or disability, who struggle to function in a general education setting, requiring a one-to-one paraprofessional support and a small class size/environment, individualized programming and curricula that caters for the student’s pace and ability to learn. The entire program, including the learning approaches and the numerous supports provided are designed to meet the needs of this class or category of student, and I find that Student falls in this class or category.
I also find that Student’s educational needs, were (and are) being met given the level of education, supports, and services provided by the Attending School, as well as how the school specially tailors the program to Student’s specific learning and physical challenges – the record is replete with examples of how this occurs. This evidence was not disputed through any testimony by any District witness(es) contradicting the testimony of Parent’s witnesses and supports Parent’s and Parent’s witnesses’ assertions that the Attending School was (and is) an appropriate placement for Student.
The testimony of the Parent, Parents’ witnesses, and Parent’s documentary evidence (Ex. P-F through P-K, & P-P, P-T through P-W) establishes that the Attending School was (and is) appropriate and has been providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2023-2024 SY.
I find that, based on the Student’s attendance at the Attending School for the 2023-2024 SY, as testified to by Parent’s witnesses, and Parent, and is reflected in the Attending School’s progress report for the previous SY (Ex. P-H), Student has been making, and will likely continue to make, progress, especially given the progress already occurring since the start of the 2023-2024 SY as testified to by Parent’s witnesses and Parent.
Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for funding/reimbursement for the cost of the tuition for Student’s placement at the Attending School for the 2023-2024 SY.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [25]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. [26]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” [27]
This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.” [28]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [29].
The hearing record reflects that Parent, through Parent’s representative, notified the CSE by correspondence dated June 16, 2023, of Parent’s intention to enroll Student at the Attending School and seek public funding for the 2023-2024 SY (Ex. P-C).
I find that in this letter Parent offered sufficient information to put the DOE on notice about Parent’s concerns regarding the CSE’s failure to make an appropriate program recommendation and informed of Parent’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [30]
Although Parent signed a contract enrolling Student in the Attending School prior to the start of the 2023-2024 SY, on June 22, 2023 (Ex. P-L), which is less than ten days after sending the ten-day notice, the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.” [31]
I find that the timing as to when the ten-day notice was sent to the CSE to be inconsequential to Parent’s claims. The enrollment contract had a clause permitting Parents to exit without financial penalty if the Student was enrolled in the public (or state-approved non-public) school offered by the school district on or before October 15, 2022 (Ex. P-L-2). Accordingly, I do not find that by signing the enrollment contract, Parent had no intention of enrolling Student in the public school or prevented the CSE from curing any defects.
It was asserted in the DPC that Parent cooperated with CSE and in no way impeded the CSE from offering Student a FAPE (Ex. P-A-11) and the DOE did not prove otherwise. Parent testified that: at all times she collaborated with the DOE and complied with any request as a part of Student’s educational team; she has neither refused to attend any IEP meeting, nor make Student available for any testing; and that she has shared information with the DOE that was necessary toward developing an appropriate program for Student and upon request (Ex. P-V-7).
Amounts Claimed:
Parent testified that she is aware of the tuition and related fees for Student’s program for the 2023-2024 SY, that she is not able to afford to pay for Student’s tuition and seeks reimbursement from the DOE.
Parent also testified that she does not have the income to pay the tuition outright, referencing her tax return (Ex. P-V-13, & P-O). Parent is therefore requesting, for the 2023-2024 SY, reimbursement in the amount of $100.00 (Ex. P-N-1) for the payment she made to the Attending School, and an order of direct payment to the school in the amount of $228,965.60.
Affiant, the Director of Operations at the Attending School, confirmed, as of July 11, 2023, the total Education Program Cost of $229,065.60, “as stated in the contract”, owing to the Attending School for the 2023-2024 SY for Student’s enrolment from July 6, 2023 through June 30, 2024 (i.e., the extended SY), and that one payment had been received totaling $100.00 (Ex. P-M-1). This evidence is consistent with the contents of the Enrolment Contract (Ex. P-L-1). Parent’s obligation to pay is also evidenced in the Enrollment Contract (Ex. P-L-1, & P-L-2), and Parent confirmed during cross-examination that she paid the $100.00 deposit (T. P114).
Recently the District Court addressed the issue of direct payment versus reimbursement. The Honorable Judge wrote that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”.[32] Based upon a similar analysis that the Court adopted in that case, I find that retrospective direct payment is an appropriate remedy in this case given: Parent 1’s established contractual obligation (addressed above) itself constituting an 'injury in fact' that is 'redressable' by the direct tuition payment Parent seeks; that the DOE is responsible for payment (my findings in this decision refers); and that the DOE did not contest the reasonableness of the cost of the tuition, merely the DOE’s liability.
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for direct funding of the cost of the tuition for Student’s placement (including reimbursement of the deposit paid) at the Attending School for the 2023-2024 SY.
Remaining Relief:
In addition, to the claim for tuition funding and reimbursement, Parent seeks an order directing the DOE to continue to provide special education transportation from the closest safe curb location at home/school, an air-conditioned vehicle, a Lift Bus for a regular size wheelchair; limited travel time (60 minutes) and 1:1 travel paraprofessional (Ex. P-V-13).
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from the child’s special education, in its definition of related services.[33] 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".[34] Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.[35] If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. [36]
The State Education Department has indicated that a CSE should consider and document the needs of a student relating to the student’s disability, and provides several examples including: a student's mobility, behavior, communication, physical, and health needs, when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate".[37] 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. [38]
Save for the request for limited-time travel, which the evidence on record does not directly address [39], the DOE’s last IEP developed pursuant to an IEP meeting held on January 20, 2022 (Ex. P-R) expressly provided for special transportation which included the remaining items included in Parent’s request (Ex. P-R-32). Given my findings and order providing for funding and reimbursement for the 2023-2024 SY at the Attending School, Parent is entitled to an order providing for specialized transportation for Student to attend the Attending School for the current SY.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall directly fund the cost of Student’s placement at the Attending School for the 2023-2024 school year by making payment to the Attending School in the sum of $228,965.60 (Two Hundred and Twenty-Eight Thousand, Nine Hundred and Sixty-Five Dollars, Sixty Cents), minus any payments already made by the DOE for Student’s tuition at the Attending School for the 2023-2024 school year under or in terms of Pendency (if applicable).
2. FURTHER ORDERED that, the DOE shall reimburse Parent the deposit paid towards the cost of Student’s placement at the Attending School for the 2023-2024 school year in the sum of $100.00 (One Hundred Dollars).
3. FURTHER ORDERED that, the DOE shall continue to provide special education transportation from the closest safe curb location to home/school, an air-conditioned vehicle, a Lift Bus for a regular size wheelchair; a 1:1 travel paraprofessional; and limited-time travel (60 minutes) for Student [40], to the extent that the DOE has been providing such limited-time travel for Student for the current school year.
SO ORDERED.
DATED: November 17, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDATED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD 41*
PARENT’S EXHIBITS
P-A. Due Process Complaint 07/03/2023 15 pages
P-C. P-B* Findings of Fact & Decision under case #210772 07/22/2022 19 Ten Day Notice 06/16/2023 5 pages
P-D. DOE’s Response to Parent’s Ten-Day Notice 06/27/2023 1 page
P-E. DOE's Response to Due Process Complaint 07/11/2023 3 pages
P-F. Attending School Educational Annual Assessment 11/22/2022 33 pages
P-G. Attending School Individualized Education Plan 2023-24 06/23/2023 20 pages
P-H. Attending School Quarterly Progress Report Q1 - Q4 06/22/2023 9 pages
P-I. Attending School Classroom & Student Schedules 2023-2024 2 pages
P-J. Attending School Program Description Summer Edition 2023 11 pages
P-K. Attending School Program Description Fall-Spring Edition 2023-2024 11 pages
P-L. Attending School Enrollment Contract 06/22/2023 6 pages
P-M. Attending School Tuition Affidavit 07/11/2023 1 page
P-N. Attending School Proof of Tuition Payment 06/09/2023 1 page
P-O. Tax Return 03/15/2023 2022 2 pages
P-P. Attending School Attendance Record 10/03/2023 1 page
P-T. P-Q* DOE’s Individualized Education Program 04/08/2021 25 P-R* DOE’s Individualized Education Program 02/03/2022 36 P-S - - - Affidavit of Parent’s Witness 1, Attending School 10/06/2023 14 pages
P-U. Affidavit of Parent’s Witness 2, Attending School 10/09/2023 34 pages
P-V. Affidavit of Parent, English 10/05/2023 14 pages
P-W. Affidavit of Parent, Spanish 10/05/2023 16 pages
DOE’S EXHIBITS
DOE-1* IEP 12/20/2022 1-7
DOE-2 Withdrawn - DOE-3 Withdrawn - DOE-4 Withdrawn - -
IHO’S EXHIBITS
I. Pendency Implementation Form 09/05/2023 41 *Exhibits P-B, P-Q, P-R, and DOE-1 were marked for identification purposes but not admitted to the Record. Exhibit P-S was neither admitted nor marked for identification purposes. Exhibits DOE-2, DOE-3, and DOE-4 were withdrawn. 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Capitalized words not explicitly defined right after the word(s) in brackets are defined in the table in Appendix A – Redaction Identification Page on page 25.
[2] The DPC was filed on July 3, 2023, at 7:12p.m. (Ex. P-A-15) and is therefore reflected in the Impartial Hearing System as “requested on” July 5, 2023, being the next business day, with July 4, 2023, being a public holiday.
[3] It appears from the Pendency Implementation Form that it was agreed to by a DOE Reviewer on the day the Pendency Hearing was scheduled (Ex. IHO-I). At that time it was not confirmed that form had been processed and the pendency hearing did not proceed as I afforded the DOE until the next scheduled status conference on September 20, 2023 to get the form processed (T. P16, & 17).
[4] 20 U.S.C. § 1400 et seq.
[5] 34 C.F.R. § 300 et seq.
[6] Educ. Law Art. 89 § 4404 et seq.
[7] 8 NYCRR § Part 200.
[8] 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.
[10] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[11] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[12] 20 U.S.C. § 1415[f][3][E][i].
[13] Rowley, 458 U.S. at 203.
[14] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[15] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[16] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[17] School Committee of the Town of Burlington v. Department of Ed., Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] NYS Educ. Law § 4404(1)(c). The burden was confirmed by the parties’ representatives at a prior SC (T. P29, & 30).
[19] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[20] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[21] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[22] Gagliardo, 489 F.3d at 115.
[23] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[1] confirmed that Parent’s input is also considered, through informal meetings that occur throughout the year and through conversations, and that the goals are created with Parent in mind (T. P96). Parent’s Witness 2 testified by affidavit (Ex. P-U), inter alia, as to: The Attending School in general, being an independent school for students who are severely disabled, including students with traumatic brain injuries, multiple disabilities, vision impairments, medical issues, cognitive delays, significant mobility issues and other medical conditions; how students are non-verbal communicators and must use some kind of augmentative communication device to communicate; how the school offer a 12-month SY, and that during the 2023-2024 extended SY there are 18 classes in the school, 117 students ranging from 5 to 21 years of age, who have been grouped by age, development level, and their ability to learn and interact in the classroom.
[25] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[26] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[27] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[28] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[29] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[30] Greenland Sch. Dist., 358 F.3d at 160.
[31] C.L., 744 F.3d at 840.
[32] Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023).
[33] See 20 U.S.C. § 1401[26]; & 34 CFR 300.34[a], [c][16].
[34] See Educ. Law §§ 4401[1]; 4402[4][a]; & Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
[35] See Application of a Child with a Disability, Appeal No. 16- 035.
[36] See Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; & 8 NYCRR 200.1[ww].
[37] Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf .
[38] See 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]
[39] Outside of a request by Parent (Ex. P-V-13) for that relief and an unsubstantiated statement by Parent’s Witness 2 that Student needs it (Ex. P-U-16).
[40] Parent is seeking an order for transportation to continue, which implies that the DOE has been providing such limited-time travel (Ex. P-V-13) (my emphasis).