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FINDINGS OF FACT AND DECISION
Case Number: 250917
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Nicholas Bancroft
Date of Filing: July 6, 2023
Hearing Requested by: Parent
Date(s) of Hearing: September 27, 2023
Record Close Date: October 19, 2023
Date of Decision: October 19, 2023
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on July 6, 2023. In the DPC, the Parent alleges the Department of Education (“DOE” or “District”) failed to offer the student a free appropriate public education (“FAPE”) for the 2023-2024 school year. [1]
Parent alleges the DOE failed to: recommend an appropriate class size, recommend an appropriate school location, conduct appropriate and timely evaluations, recommend sufficient related services, recommend appropriate special education transportation services and accommodations, or develop an appropriate IEP.[2] Parent further alleges the DOE denied parent meaningful participation in the IEP process and predetermined the outcome of Student’s IEP. [3] By way of relief, Parent seeks an award of direct funding of tuition for Student’s attendance during the 2023-2024 school year at Private School as well as direct payment for the costs of related services, 1:1 nursing services, a 1:1 paraprofessional, transportation, independent educational evaluations (“IEE”), and an order for the DOE to hold an updated IEP meeting. [4]
The District did not file a response to the DPC.
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student a FAPE for the 2023-2024 school year, the b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs and c) the equities support the Parent’s requested relief in part.
PROCEDURAL HISTORY
I was appointed on July 13, 2023. I held a settlement and pre-hearing conference (“PHC”) with the parties on August 15, 2023.[5] At that time, the parties were not pursuing settlement, but Parent was seeking pendency and a pendency hearing was scheduled for August 24, 2023.[6] The August 24, 2023 pendency hearing was converted to a status conference as the DOE did not contest pendency.[7] At the status conference, a Due Process Hearing (“DPH”) was scheduled for September 27, 2023.[8] I issued a PHC Summary and Order outlining the issues to be addressed, the remedies, as well as evidentiary and witness disclosures.[9] Finally, the DOE requested and I ordered two subpoenas duces tecums. [10]
On September 27, 2023, the parties appeared for a DPH. At the hearing, Parent submitted, and I admitted Parent’s Exhibits A-J.[11] Parent called two witnesses who testified via affidavit.[12] The DOE submitted and I admitted Exhibits 1-18.[13] The DOE called no witnesses. Parent and the DOE each gave opening statements.[14] Similarly, each side gave closing arguments. [15]
FINDINGS OF FACT
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
Student is a [REDACTED]-year-old Student diagnosed with a brain injury, seizure disorder, cerebral palsy, periventricular leukomalacia, incontinentia pigmenti, developmental delay, optic neuropathy, and right eye blindness.[16] Student is non-verbal and non-ambulatory. [17] Student has a G-tube and seizure monitor. [18]
Student’s current IEP disability classification is Traumatic Brain Injury.[19] Student’s most recent IEP meeting was held on January 13, 2023.[20] At the meeting, the IEP team reviewed the following reports and evaluations: assistive technology assessment [21], social history update [22], physical therapy assessment [23], classroom observations [24], psychoeducational assessment [25], occupational therapy assessment [26], speech and language assessment [27], and academic and related services reports. [28]
Summaries of the relevant evaluations and their recommendations are as follows:
Assistive Technology Assessment:
Student is non-ambulatory, non-nonverbal, and dependent for mobility.[29] The evaluation was initiated based on concerns regarding Student’s limited expressive language and communication access.[30] Assistive technology is recommended for Student.[31] Student requires an augmentative and alternative communication device (“AAC”). [32]
Social History Update
This assessment was conducted via phone with Parent.[33] Parent reports she is very satisfied with Student’s current school placement and the related service therapies Student receives there.[34] Student is not yet fully potty trained, but her toileting skills are improving. [35] Student is improving her ability to communicate through gestures, pointing, reaching, pulling, and through pictures on her communication device.[36] Student is becoming more vocal.[37] Student is learning to identify colors, can identify numbers 1-5, and knows the letters of the alphabet. [38] Although Student is dependent on others for all activities of daily living, Student’s daily living skills are improving.[39] Student eats a pureed diet due to choking issues.[40] Student plays with sensory driven toys, and enjoys music very much, particularly in her music therapy sessions at school. [41]
The evaluator found Student’s communication, daily living, social skills and relationships all low compared to others her age. [42]
Physical Therapy Update
Student is transported in a manual wheelchair.[43] Student has significantly limited range of motion in her upper/lower extremities that interferes with her completing functional tasks. [44] Student is non-ambulatory and has poor strength in the arms and legs.[45] Student is recommended for physical therapy. [46]
Classroom Observations
Student is very persistent and tries her best to accomplish tasks with the support of staff.[47] Student likes to socialize with adults and peers.[48] She likes to listen to music.[49] Music is used as a tool to engage her in all activities.[50] Student recognizes familiar voices and smiles when she recognizes a familiar voice.[51] Student indicates her needs by pointing.[52] In the classroom, Student likes looking at a book with sounds.[53] Student benefits from cues and support to use her hand to grasp objects and pick things up from surfaces. [54]
Psychoeducational Assessment
Student was not able to participate in standardized reading, writing, or math tasks. [55] Student was presented with enlarged letters but did not identify letters by looking or pointing. [56] While Student is not able to write independently, she can grasp writing utensils independently. [57] Student was able to put quantities of items in a cup with hand over hand, gestural prompts and context cues.[58] Student did not identify numbers when presented. [59]
Occupational Therapy Assessment
Student has significant difficulty with gross and fine motor coordination.[60] Student’s hand skills are poor and mostly uses raking and open palm in right hand to communicate. [61] Student has difficulty palmar grasping and struggles to utilize more advanced grasps and hand manipulation with various objects.[62] Student has difficulty with upright sitting and adjusting posture.[63] Student sometimes needs help with head and core support when fatigued.[64] Student has significant difficulty maintaining attention to activities for longer periods of time; especially ones with little interest.[65] Occupational therapy services are recommended. [66]
Speech and Language Assessment
Student has an emerging ability to identify objects based on function and respond to “Wh” questions using pictures.[67] Student is nonverbal but produces vocalizations.[68] Student previously did not vocalize as consistently or as often, indicating this to be a positive prognostic indicator.[69] Student will benefit from ongoing supports to improve social communication skills that may not require verbalization.[70] Student continues to present with a severe language impairment that impacts functional language use in the areas of receptive and expressive language and social communication.[71] Speech therapy is recommended. [72]
The DOE utilized the above evaluations when formulating Student’s IEP. Parent disagreed with the DOE’s recommendation of a District 75 school, a 12:1:4 class size, and the lack of a recommendation for music therapy, a 1:1 nurse or all the transportation accommodations Student requires to be safe. [73]
Parent sent a ten-day notice to the DOE on June 20, 2023 notifying the DOE of Parent’s concerns and Parent’s intention to enroll Student at Private School. [74]
Private School is a private and highly specialized special education program in New York City created for children who suffer from acquired brain injuries or brain-based disorders. [75] Private School has a 12-month school year and offers all services during its school day, which runs from 8:30 am – 5:00 pm.[76] Every student at Private School requires a 1:1 paraprofessional to assist with activities of daily living and to have access to and benefit from the educational program.[77] Student also has a 1:1 nurse at Private School.[78] Most Students at Private School have management needs that are either intensive or highly intensive and which require a significant degree or high degree of individualized attention and intervention. [79]
Due to the severe nature of her brain injury, Student has highly intensive management needs requiring a high degree of individualized attention and intervention throughout the school day.[80] Student currently attends a 6:1:1 class, with direct and small group instruction.[81] Student receives occupational therapy 5x per week, physical therapy 5x per week, speech and language therapy 5x per week, vision education services 2x per week, assistive technology 1x per week, and music therapy 3x per week.[82] All related service sessions are for 60 minutes. [83]
According to Deputy Direct of Private School, Student has made progress in skills across academic and related service domains at Private School.[84] Parent similarly reports noticing Student’s progress at Private School. [85]
Base tuition at Private School for the 2023-2024 school year is $190,000.[86] Costs for related services are $106,080.[87] Student receives transportation to and from Private School at a cost of $192,930 for the 2023-2024 school year.[88] Student’s nursing services are $292,556 for the 2023-2024 school year. [89]
CONCLUSIONS OF LAW
Burden
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 for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [90]
Prong I
The IDEA provides that children with disabilities are entitled to a FAPE.[91] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[92] A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[93] In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” [94]
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden.[95] A review of the record establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year.
Student has severe cognitive and physical limitations that must be addressed at any placement school. Student is non-verbal, non-ambulatory, and requires assistance for all aspects of daily living. At the DPH, the DOE submitted a significant number of evidentiary documents but called no witnesses. The DOE argues that the DOE can meet their burden on documents alone. However, none of the documents submitted by DOE support a conclusion that the DOE’s proposed placement could accommodate Student’s significant needs nor implement Student’s IEP. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” [96]
Although, the DOE argues that it can meet its burden that it provided Student FAPE on documents alone, and cites to relevant authority, I find those circumstances do not apply to the specific facts at issue here.[97] The SRO notes that although the District may be able to meet its burden on documents alone, “…this bare presentation of its case is not encouraged, and in many instances, may result in a finding that the district failed to meet its burden of proof…”[98] This is one of those instances.
Therefore, I find that the DOE failed to offer the Student FAPE for the 2023-2024 school year.
Prong II
A private school placement must be "proper under the Act."[99] This means that the private school must offer an educational program which met the student's special education needs. [100] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[101] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.' [102]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[103] When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[104] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [105]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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. [106]
Private School is a specialized school for children with acquired brain injuries or brain-based disorders. Private School provides Student with an individualized education program geared toward improving skills appropriate to Student’s individual cognitive, physical, and developmental levels.[107] Student receives all her related services through the school and has a 1:1 paraprofessional and 1:1 nurse to assist Student throughout the day. Student has a G-tube, uses a wheelchair, and needs assistance with all aspects of daily living.
I find that the evidence presented by Parent at the DPH met their burden in proving that the private program offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. In reviewing the hearing record, the weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [108]
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[109] In making that equitable determination, a hearing officer may consider many factors, including, among other things, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [110]
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2023-2024 school year. Therein, Parent detailed specific concerns.[111] Furthermore, Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School.[112] Parent was an active participant in the IEP process. Additionally, although DOE submitted a School Location Letter in evidence, Parent testified she did not receive a school location letter for the 2023-2024 school year.[113] The DOE presented no witnesses to the contrary.
The DOE addressed the costs related to this student in their opening statement, cross examination, and closing arguments. The total amount requested in this case amounts to around $780,000.[114] Parent testified “it would be virtually impossible” for their family to pay the cost associated with Parent’s unilateral placement. [115]
“Courts fashioning discretionary equitable relief under the 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.”[116] I have considered the high tuition and related service costs in this matter and have determined they do not raise an equitable issue. Parent has cooperated throughout the IEP process. The DOE raised no argument to the contrary. Furthermore, the unilateral placement school has a 12-month extended school year and an extended 8:30-5:00 PM school day. Student requires constant assistance and supervision throughout the day to address their medical issues.
Parent requests direct funding of tuition and costs for Student’s attendance at Private School. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Student attended the Private School during the school year at issue. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. Overall and after considering the record at the hearing, I find that the equities support Parent’s claim for direct funding of Student’s tuition, paraprofessional, and nursing services. Transportation will be addressed below.
Evaluations
Parent raised a request for reevaluations. Specifically, psychoeducational or neuropsychological, SLT, OT, and PT.[117] Student’s most recent psychoeducational is from January 2022, SLT is from November 2022, OT is from April 2022, and PT is from October 2021. Pursuant to 34 C.F.R. 300.303 a public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with 34 C.F.R. 300.304 through 34 CFR 300.311. Namely, a reevaluation shall occur if the public agency determines that educational or related service needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or if the child’s parents or teacher requests a reevaluation.
Student’s psychoeducational, occupational therapy and physical therapy evaluations are over a year old. Evaluations should occur no more than once a year, unless the parent and educational agency agree otherwise. Here, Parent is requesting updated evaluations. The District has not responded to Parent’s request for evaluations. Although the SLT evaluation is just over 11 months old as of this writing, I do not find that sufficient to bar this form of relief.
I am ordering the DOE to conduct reevaluations in the areas of: psychoeducational or neuropsychological, SLT, OT, and PT.
Transportation
The IDEA specifically includes transportation, as well as any modifications or accommodations needed to assist a student to benefit from his or her special education, in its definition of related services.[118] Under New York law and regulations, special education is defined 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.”[119] The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the DOE’s obligation to provide a student with a FAPE.[120]
Here, DOE emailed a representative at Private School to inquire whether Private School had students who required special education transportation services through the DOE.[121] Private School responded they did not.[122] This evidence was presented by the DOE on its face, without accompanying witness testimony. However, the evidence was admitted without objection by Parent. It is unclear from this piece of evidence whether DOE had the resources, equipment, or personnel to accommodate Student’s transportation needs. It is similarly unclear whether Parent was made aware of this inquiry by the DOE.
Therefore, I am ordering the DOE to fund Student’s transportation. However, DOE is only obligated to fund transportation services actually provided, meaning, every ride taken to and from Private School provided by Transportation Provider. DOE will fund Student’s transportation only for the occasions Student utilized transportation services offered by Transportation Provider.
Music Therapy
Parent requests that music therapy be added to Student’s related services. The evaluations, as well as testimony of both Parent witnesses support this request.
“Enough cannot be said about music therapy…Music is an extensive motivator for [Student]. Extensive motivator. It’s been one of the key contributors to her ability to self-regulate. It’s also improved her socioemotional connection…music therapy ha[s] been very, very beneficial in even helping [Student] express herself…[Student] was not able to express herself in certain ways.
Now she’s able to grow in or even use certain words to indicate the fact that she doesn’t want anything. So she often says, she often adds a few words to her vocabulary, like more or all done. And all of these things have been the result of specific techniques used by the music therapist to help her become more expressive, to become more engaged in her socioemotional state, and just to make improvements in her overall satisfaction.” [123]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.[124] I am ordering the DOE to add music therapy to Student’s array of related services.
Other Relief
The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is entitled to attorneys’ fees.
Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for tuition and related services for Student at Private School is GRANTED for the 2023-2024 school year as follows:
(a) The District shall directly fund tuition at Private School for the 2023-2024 school year in an amount not to exceed $190,000.00.
(b) The District shall directly fund supplemental tuition fees to Private school for the 2023-2024 school year in an amount not to exceed $160,080.00.
(c) The District shall directly fund nursing service fees to Private School for the 2023-2024 school year in an amount not to exceed $292,556.00.
(2) Parent’s claim for direct funding of transportation services is GRANTED IN PART for the 2023-2024 school year as follows:
(a) The District shall directly fund Transportation Provider in an amount not to exceed $192,930.00 for transportation services actually rendered, meaning for every ride taken by Student to and from Private School provided by Transportation Provider, upon receipt of appropriate documentation showing Student’s utilization of Transportation Provider to get to and from Private School.
(3) Parent’s claim for reevaluations is GRANTED. The District shall reevaluate Student in the areas of neuropsychology, speech language therapy, occupational therapy, and physical therapy. These evaluations shall occur within 35 days of this order.
(4) Parent’s claim for music therapy is GRANTED. Music therapy shall be added to Student’s array of related services at Student’s IEP reconvene ordered infra.
(5) The District shall hold an IEP reconvene for Student within 35 days of receipt of Student’s reevaluations ordered supra.
Dated: October 19, 2023
Nicholas Bancroft
Impartial Hearing Officer
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.
DISTRICT EVIDENCE
1. Due Process Complaint 07/05/2023 (9 pages; DOE)
2. Prior Written Notice and School Location Letter 03/06/2023 (7 pages; DOE)
3. Quarterly Progress Report 01/13/2023 (29 pages; DOE)
4. Meeting Minutes 01/13/2023 (5 pages; DOE)
5. Individualized Education Program 01/13/2023 (69 pages; DOE)
6. [REDACTED] IEP 01/12/2023 (71 pages; DOE)
7. Speech and Language Evaluation 11/15/2022 (6 pages; DOE)
8. Nursing Referral 11/08/2022 (4 pages; DOE)
9. Quarterly Progress Report 09/30/2022 (20 pages; DOE)
10. Assistive Technology Evaluation 01/25/2022 (10 pages; DOE)
11. Psychoeducational Evaluation 01/18/2022 (7 pages; DOE)
12. Classroom Observation 01/21/2022 (2 pages; DOE)
13. Social History Update 12/14/2021 (2 pages; DOE)
14. Physical Therapy Evaluation 10/06/2021 (12 pages; DOE)
15. Occupational Therapy Evaluation 04/08/2022 (8 pages; DOE)
16. Transportation Email Chain 06/27/2023 (3 pages; DOE)
17. Monthly Attendance (23-24 SY) 09/14/2023 (1 page; DOE)
18. Student Schedule (23-24 SY) 07/05/2023 (1 page; DOE)
PARENT EVIDENCE
A. Due Process Complaint IH# 250917 07/05/2023 (9 pages)
B. [REDACTED] IEP 2023-24 School Year 01/12/2023 (71 pages)
C. Ten Day Notice 2023-24 School Year 06/20/2023 (2 pages)
D. [REDACTED] Enrollment Contract 2023-24 School Year 07/05/2023 (6 pages)
E. Transportation Agreement 2023-24 School Year 07/10/2023 (6 pages)
F. Pendency Implementation Form 08/23/2023 (1 page)
G. Nursing Agreement 2023-2024 07/04/2023 (8 pages)
H. [REDACTED]- Parent Affidavit 09/19/2023 (3 pages)
I. [REDACTED]- Affidavit 09/19/2023 (4 pages)
J. Medical Forms 08/18/2022 (4 pages)
IHO EXHIBITS
i. Pre-Hearing Conference Transcript 08/15/2023 (10 pages; IHO)
ii. August 24, 2023 Status Conference Transcript 08/24/2023 (17 pages; IHO)
iii. PHC Summary and Order 08/24/2023 (4 pages; IHO)
iv. Due Process hearing Transcript 09/27/2023 (66 pages; IHO)
v. Subpoena Duces Tecum to [REDACTED] 08/24/2023 (4 pages; IHO)
vi. Subpoena Duces Tecum to [REDACTED] 08/24/2023 (1 page; IHO)
APPENDIX
[REDACTED] Information Term Used In FOFD
[REDACTED] Student
[REDACTED] Mother of Child/Parent(s)
[REDACTED] Parent Attorney/Representative
[REDACTED] District Attorney/Representative
[REDACTED] Private School
[REDACTED] Deputy Director of Private School/Deputy Director [REDACTED] Transportation Provider
Footnotes
[1] Exhibit P-A.
[2] Id.
[3] Id.
[4] Id.
[5] This hearing officer was not present for the settlement portion of the conference, and it was not on the record; Exhibit IHO-i.
[6] Exhibit IHO-i.
[7] Exhibit IHO-ii.
[8] Id.
[9] Exhibit IHO-iii.
[10] Exhibit IHO-ii at p. 12; Exhibit IHO-v; Exhibit IHO-vi.
[11] Exhibit IHO-iv at p. 34; The exhibits are listed below.
[12] Exhibit P-H; Exhibit P-I.
[13] Exhibit IHO-iv at p. 31.
[14] Exhibit IHO-iv at p. 37-41.
[15] Id. at p. 65-75.
[16] Exhibit P-H at p. 1.
[17] Id.
[18] Id.
[19] Exhibit D-5 at p. 1.
[20] Id.
[21] Exhibit D-10.
[22] Exhibit D-13.
[23] Exhibit D-14.
[24] Exhibit D-12.
[25] Exhibit D-11.
[26] Exhibit D-15.
[27] Exhibit D-7.
[28] Exhibit D-2 at p. 2.
[29] Exhibit D-10 at p. 2.
[30] Id.
[31] Id. at p. 1.
[32] Id. at p. 10.
[33] Exhibit D-13 at p. 1.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] Id. at p. 2.
[42] Id.
[43] Exhibit D-14 at p. 1.
[44] Id.
[45] Id. at p. 5.
[46] Id.
[47] Exhibit D-12 at p. 1.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] Exhibit D-11 at p. 7.
[56] Id
[57] Id.
[58] Id.
[59] Id.
[60] Exhibit D-15 at p. 6
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] Id. at p. 7.
[67] Exhibit D-7 at p. 2.
[68] Id.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Exhibit P-H at p. 3.
[74] Exhibit P-C.
[75] Exhibit P-I at p. 2.
[76] Id.
[77] Id.
[78] Id. at p. 4.
[79] Id. at p. 3.
[80] Id.
[81] Id. at p. 4.
[82] Id.
[83] Id.
[84] Id.
[85] Exhibit P-H at p. 3.
[86] Exhibit P-D.
[87] Id. at 2.
[88] Exhibit P-E at p. 2.
[89] Exhibit P-G at p. 3.
[90] NYS Educ. Law § 4404(1)(c).
[91] 20 U.S.C. § 1400 (d)(1)(A).
[92] 34 C.F.R. § 300.13).
[93] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[94] Endrew F. v. Douglas County School District RE–1, 580 U.S. 386 (2017).
[95] (1) Was the district’s program legally adequate? (2) Was the parent’s proposed placement appropriate? (3) Would it be equitable and fair to require the district to pay? Burlington School Committee, et al. v. Massachusetts Department of Education et. al., 471 U.S. 359 (1985); Florence County School District Four, et al. v. Shannon Carter, 510 U.S. 7 (1993).
[96] Endrew F., 580 U.S. at 404.
[97] Exhibit IHO-iv at p. 37.
[99] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[100] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[101] Gagliardo, 489 F.3d at 112.
[102] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[103] Frank G., 459 F.3d at 364-65.
[104] Id. at 364; see Gagliardo, 489 F.3d at 115.
[105] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[106] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[107] Exhibit P-B.
[108] Id.
[109] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[110] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[111] Exhibit P-C.
[112] Id.
[113] Exhibit IHO-iv at p. 62.
[114] Id. at 38.
[115] Exhibit P-H at p. 3.
[116] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[117] Exhibit P-A at p. 5-6.
[118] 20 U.S.C. § 1401[26]; 34 CFR 300.34[a], [c][16].
[119] NYS Educ. Law §§ 4401(1) (emphasis added); 4402(4)(a); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[120] See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994)(emphasis added); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992).
[121] Exhibit D-16.
[122] Id.
[123] Exhibit IHO-iv at p. 51.
[124] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).