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NYSED # 604736 - NYC #252292
Findings of Fact and Decision
Case Number: 252292
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Service District #[REDACTED] Impartial Hearing Officer: Kevin T. McGrath
Date of Filing: August 01, 2023
Hearing Requested by: [REDACTED] (Parent)
Date of Hearing: December 04, 2023
Record Close Date: December 13, 2023
Date of Decision: December 13, 2023 Findings of Fact and Decision i
Names and Titles of Persons Who Appeared on December 4, 2023: For the Department of Education (DOE): [REDACTED], Independent Consulting Hearing Representative
For the Student:
[REDACTED], Esq., Law Office of [REDACTED]
[REDACTED] – Parent and Witness by affidavit only
[REDACTED], [REDACTED]. - Witness
INTRODUCTION
Parent filed a Due Process Complaint (DPC) on, or about, August 1, 2023. In the DPC, Parent alleges that the Department of Education (DOE) failed to offer Student[1] a free and appropriate public 0F education (FAPE) for the 2021-2022 school year.[2] 1F
Parent seeks an Order that the DOE reimburse/directly fund Student’s tuition at Private School, a program at a non-approved school within New York State for the education of students with disabilities, for the 2021-2022 school year. The DPC asserts the DOE failed to provide Student with a FAPE for the 2021-2022 school year when its Committee on Special Education (CSE) failed to create an Individualized Education Program (IEP) before the beginning of the 2021-2022 school year; ultimately created an IEP which contains an inappropriate class size recommendation; failed to create sufficient goals in the IEP; and the DOE failed to provide an appropriate school location. 3 2F
As detailed below, I find: (a) the DOE failed to meet its burden and failed to offer Student a FAPE for the 2021-2022 school year; (b) Private School offers Student specially designed instruction sufficient to meet Student’s needs; and (c) the equities support Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on August [3], 2023. The DOE did not hold a resolution meeting or serve a due process response. A Prehearing Conference was held on September 5, 2023, and a Prehearing Conference Summary and Order was issued the same day. 4 A Status 3F
Conference was held on September 21, 2023 with Status Conference Summaries and Orders being issued the same day. 5 By mutual agreement of the parties, the merits hearing initially scheduled for 4F
October 31, 2023 was rescheduled due to witness unavailability.
A merits hearing was held before me on December [4], 2023. The DOE produced no exhibits and declined to present testimony evidence or cross-examine Parent. At the hearing, Parent’s Representative presented 13 exhibits, all admitted into the record without objection.[6] Private School 5F
Representative appeared at the hearing to provide testimony on Student's behalf. The parties then presented closing statements. Three Orders of Extension were issued in the action.[7] 6F
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.[5] et seq.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student is [REDACTED] years old at the 2021-2022 school year’s start and currently is placed at Private School. Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student presents with a “Learning Disability.” Additionally, Student has been described as having a short attention span, anxiety, difficulty sustaining attention and focus, ADHD, and compromised language skills.[8] 7F
The DOE did not develop an IEP for Student before the start of the 2021-2022 school year.[9] 8F
On August 18, 2021 Parent sent the DOE a “Ten-Day Notice” objecting to the DOE’s failure to hold an IEP meeting or make a school placement designation and stating their intent to place Student at Private School.[10] Student was then enrolled at Private School for the 2021-2022 school year. [11]
9F 10F
On October 14, 2021, over a month after the start of the school year, the Committee for Special Education (CSE) conducted a meeting to develop an IEP (2021 IEP). Pursuant to the 2021 IEP Student was recommended to be placed in a 12:1:1 classroom and receive related services.[12] 11F
During the IEP meeting, Parent objected that the placement in a 12:1:1 classroom would be too large for Student and would not provide Student with 1:1 learning and behavioral support.[13] 12F
Following the IEP meeting, the DOE sent a letter designating Public School as Student’s placement location for the 2021-2022 school year.[14] Parent investigated the location and spoke with 13F the school’s parent coordinator. The Parent could not tour the facility, but based on their conversation, they decided the school was too large and lacked a proper peer grouping in the classroom.[15] On 14F
October 27, 2021 Parent sent the DOE another letter objecting to Student’s placement at Public School and stating their intent to continue Student’s placement at Private School.[16] 15F
Private School Private School Representative[17] testified to the curriculum and Student’s progress at Private 16F
School. Private School Representative is a speech pathologist and serves as the school's Language Curriculum Coordinator and Director of Related Services.[18] They possess a Master of Science degree
17F in Speech and Language Pathology and NYS licenses as a speech-language pathologist and general education teacher.[19] Private School Representative’s responsibilities include administering and 18F analyzing speech-language assessments; preparing and implementing language programming; training teachers on incorporating language-based lessons; observing students; collaborating with Private School is a non-graded co-educational school for students aged five to fifteen with language-based learning disabilities.[21] The school curriculum is based on New York State Common
20F
Core standards, and teachers are trained in using the Orton-Gillingham Approach.[22] Student also 21F received related occupational therapy, three (3) 30-minute sessions per week; speech language therapy, two (2) 30-minute sessions per week; and counseling one 30-minute session per week.[23] 22F
Private School Representative is familiar with Student from their regular communication and collaboration with Student’s teachers and therapists, review of Student’s work, and student classroom observations.[24] At the beginning of the 2021 school year, Student had “very compromised” language
23F skills; delays in expressive, receptive, and pragmatic language; delays in executive function, and social skills; struggled with sensory processing, fine motor, gross motor, graphomotor, and motor planning skills; anxiety; distractibility; difficulty with attention and focus; and difficulty with regulating emotions. 25 Student progressed and benefited from placement at Private School and the 24F different methodologies used.[26] 25F
Parent executed an enrollment contract with Private School for the 2021-2022 school year.[27] 26F
Tuition at Private School was $77,900.[28] Parent paid $10,000 towards the tuition for 2021-2022
27F school year.[29] The enrollment contract contains a provision allowing for the release from the 28F agreement if Parent accepts an appropriate public-school placement.[30] Parent acknowledges they 29F remain responsible for the total tuition regardless of a due process hearing’s outcome.[31] Parent states 30F it would be a financial hardship for them to fund the tuition at Private School directly.[32] It was noted 31F that Private School provides religious prayers for five (5) minutes a day (or[25] minutes a week), which equates to 1.23% of Student’s total schedule.[33] 32F
Credibility
I determine the following upon considering the evidence, including all admitted documents and witness testimony. In accepting the documents, I found them all relevant and represent the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the statement’s veracity or the relevant opinion's earnestness, and therefore, I find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis.
Ex. L at ¶6.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, establishing the denial of a FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parent.
A school district must pay for the cost of a student’s tuition at a private school if the Burlington/Carter’s three-prong test is satisfied, in that: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[34] In New York, 33F 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 a 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.[35] 34F
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.[36] When the local education 35F district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[37] To meet its substantive FAPE obligations, a school district
36F 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.”[38] The due process complaint may address “any
37F matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[39] 38F
Prong I
As detailed herein, the DOE did not establish that a FAPE was provided under Prong I standard to Student for the 2021-2022 school year.
The DOE declined to 1) offer any documents as evidence, b) provide any witness testimony, or c) cross-examine one of the witnesses. At the hearing, the DOE’s Representative did not admit that Student was denied a FAPE for the 2021-2022 school year.[40] Nonetheless, the absence of any 39F testimony or documents from a member of the IEP team limits the impact of DOE Representative’s arguments because without any clarifying information, the DOE has failed to meet its legal burden to show that it provided a FAPE to Student.
Nonetheless, the record supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2021-2022 school year. The DOE has not shown a public-school placement was offered before the start of the school year or that Parent was able to sufficiently evaluate the untimely recommended school.
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1. However, the IEP, among other requirements, must establish annual [41]
40F goals designed to meet the student's needs, resulting from the student's disability, and must provide appropriate special education and services. “Appropriateness” means that the IEP accurately [42]
41F reflects the results of evaluations to identify the student's needs, offers sufficient special education [43]
42F services,[44] and is properly implemented.[45] To demonstrate a FAPE, the DOE must offer “an IEP that 43F 44F is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.” In addition, the IEP must be “reasonably calculated to provide some [46]
45F
‘meaningful’ benefit.” [47]
46F
The DOE fails to show they provided Student with a school capable of implementing the IEP. The unchallenged and unimpeached testimony establishes that an IEP and placement location were not created until after the school year started and that Parent was denied a tour of the facility. Under the IDEA, the local education agency is required to provide the "frequency, location, and duration" of the "services" to be provided.[48] Despite the reference to "location" in Section 300.320(a)(7), the 47F
Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow.[49] Still, the school designation cannot come so late
48F that it impedes the parents' ability to participate meaningfully in the school selection process.[50] For 49F instance, a procedural violation occurred where the equivalent of a school location letter was sent "on June 15 for a school year beginning on July 6,”[51] "on June 18 for a school year beginning on July
50F
5,"[52] and on “June 18 for a school year beginning on July 2.”[53] “[T]he crux of the right to 51F 52F meaningfully participate in the school selection process is the right to ‘evaluate the school assignment,’ i.e., the right to acquire relevant and timely information as to the proposed school.”[54] 53F
Particularly salient here, as in the F.B. case, was the need for Parent to identify and evaluate the particular classroom, teacher, and resources that would be provided to Student.[55] In sum, "the IEP 54F could not be meaningfully evaluated independent of the proposed placement's ability to implement it."[56] In failing to provide a school placement letter or to provide Parent with information about the 55F actual classroom and curriculum to which Student would be assigned, the DOE impeded Parent’s ability to participate meaningfully in the school selection process. Accordingly, I find that the DOE denied Student a FAPE.
As detailed above, the evidence demonstrates that Student was denied a FAPE for the 2021-2022 school year.
Prong II
As detailed herein, Parent sufficiently established that Private School was a proper placement for Student.
A private school placement must be “proper under the Act.”[57] This means the Private School 56F must offer an educational program that meets students’ special education needs.[58] A parent seeking 57F tuition reimbursement has the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.[59] When determining whether a unilateral placement is appropriate, 58F the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[60] A private placement is appropriate if it provides instruction designed to meet
59F a student’s unique needs.[61] The parent must also demonstrate that the placement provides educational
60F instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction.[62] 61F
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” to Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because they: (1) have hired specially trained teachers to educate students with special education needs; (2) provide Student with 1:1 intervention to support Student; (3) individualizes instruction for Student in education instruction; and (4) have shown Student is making objectively established progress.
Private School provides education services to address the individual needs of Student. Specifically, Private School Representative and Parent have demonstrated that Student is progressing academically. Further, DOE Representative’s cross-examination did not establish any evidence to dispute the claims that Student was making progress.
Accordingly, I hold that Parent has met their burden in proving that Private School offered an educational program that met Student’s needs under the Burlington/Carter Prong II standard.
Prong III
As detailed herein, the equities favor Parent under the third Burlington/Carter standard.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. 63 “[A] major consideration in deciding whether the third factor is satisfied is whether
62F the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.” 64 Specifically, equitable considerations include a parent’s participation in IEP meetings, 63F visits to the proposed school placements, and notifying the DOE about the unilateral placement decision. 65 64F
In this matter, Parent attended the 2020 and 2021 IEP meetings. They discussed Student’s education plan, their concerns about the change in school placement, and objections to Public School. 66 Parent attempted to tour Public School, inquire about the services and class structure
65F offered, and communicate with school employees to discuss Student’s education needs. 67 Parent 66F timely provided the DOE with their concerns about the DOE's failure to offer Student a FAPE in the Ten-Day Notice. 68 Furthermore, the DOE was timely notified of Parent’s intention to place Student
67F at Private School unilaterally. 69 68F
Parent seeks reimbursement for their private school tuition costs. This is an available remedy under the IDEA 70 and permitted without showing a financial hardship. 71 Parent signed a contract with 69F 70F
Private School for the 2021-2022 school year.[72] Parent remains liable for all tuition if a claim under
71F the IDEA were unsuccessful.[73] The evidence demonstrates that Parent would suffer a financial
72F hardship without the DOE directly funding the unpaid portion of Private School’s tuition.[74] I find the 73F costs associated with Private School, including tuition, are reasonable. Moreover, I hold that the evidence establishes that Parent cooperated with the DOE’s efforts to develop IEPs and recommendations.[75] 74F
Gagliardo, 489 F3d at 112. 64
Bettinger v. N.Y.C Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY 2007). 65
See D.A. v. N.Y.C. Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011). 66
Ex. M at ¶7-10; Ex. B; Ex. C. 67
Ex. M at ¶9-10; Ex. C. 68
Ex. M at ¶10; Ex. C. 69
Id. 70 See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). 71 See Cohen v. N.Y. City Dept of Educ, 2023 U.S. Dist. LEXIS 171815 (SDNY Sept. 26, 2023).(“Plaintiffs were not required to establish financial hardship to seek direct retrospective payment—after the district failed to provide M.C. with a FAPE for the 2018-2019 school year—because such a burden would contradict the IDEA's core purpose of "ensur[ing] that all children with disabilities have available to them a free appropriate public education[.]" 20 U.S.C. § 1400(d)(1)(A). To require parents to fund their children's education in the first instance, unless they demonstrate an inability to pay—as the SRO did here—skews the equities underlying the IDEA and cases applying that law. Direct payment to the school simply requires the DOE to belatedly fund expenses that it was obligated to pay all along. E.M., 758 F.3d at 453. Thus, where, as here, a private school is willing to enroll the student and the risk that it will take years to obtain payment, parents who satisfy the Burlington factors have a right to retroactive direct tuition payment. See Mr. & Mrs. A., 769 F Supp 2d at 428.”) Reduction of the tuition based on religious instruction
It is uncontested that part of the education at Private School involves religious instruction for five (5) minutes per day, which is 1.23% of the school day.[76] The DOE Representative agreed to this 75F calculation covering the religious part of the daily instruction.
The intent of the IDEA is to authorize reimbursement for the cost of private special education services when a school district fails to provide a FAPE.[77] Further, Courts have held that while the 76F ultimate decisions about a disabled child's education “rest in the hands of the parents, this right is not absolute.”[78] The Court continued to state that: "[I]n opting unilaterally to place [the child at a private 77F
Jewish school], though he was otherwise entitled to receive a [FAPE], [the parents] must accept that public monies will not fund it."[79] Similarly, here, Parent unilaterally selected a program that contains
78F a portion of daily religious instruction, and the funds intended under the IDEA for special education instruction should not be used to subsidize this instruction. Accordingly, the award relating to the Private School tuition shall be reduced by the amount of religious instruction, which equates to a tuition reduction to $76,941.83.
ORDER
NOW, THEREFORE, BASED ON THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2021-2022 school year, and IT IS FURTHER ORDERED THAT:
(2) Parent’s request for tuition reimbursement/direct funding for Student’s unilateral placement at Private School is GRANTED for the 2021-2022 school year. The DOE shall reimburse Parent for any out-of-pocket expenses paid to Private School for tuition. The DOE shall also directly pay to Private School tuition for any outstanding balance owed for the 2021-2022 school year in a combined amount not to exceed $76,941.83 within 35 days of receipt of the invoice from Private School or Parent.
So Ordered.
Kevin T. McGrath Dated: December 13, 2023 Kevin T. McGrath, Esq. (signed electronically) Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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
APPENDIX A – REDACTION IDENTIFICATION PAGE
[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Date of Birth [REDACTED] Student’s I.D. Number (OSIS) [REDACTED] Parent [REDACTED] DOE Representative [REDACTED] Parent’s Representative [REDACTED] Private School [REDACTED] Private School Representative [REDACTED] Public School
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
None
PARENT’S EXHIBITS
A. Due Process Complaint 08/01/2023 5 pages
B. Ten-Day Notice Letter 08/18/2021 2 pages
C. Follow-up Notice Letter 10/27/2021 4 pages
D. Class Schedule 2021-2022 1 page
E. Progress Report Sept-Dec 2021 4 pages
F. Progress Report Jan-June 2022 5 pages
G. Attendance Record 2021-2022 1 page
H. [REDACTED] Description Undated 1 page
I. [REDACTED] Contract 09/01/2021 2 pages
J. Payment Affidavit 07/12/2022 1 page
K. 1040 Tax Form 02/19/2021 2 pages
L. [REDACTED] Testimony Affidavit 11/23/2023 14 pages
M. [REDACTED] Testimony Affidavit 11/24/2023 6 pages
IHO EXHIBITS
I. Prehearing Conference Summary and Order 09/05/2023 9 pages IHO
II. Status Conference Summary and Order 09/25/2023 15 pages IHO
III. Order of Extension Various 3 pages IHO
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Ex. A.
[3] Id.
[4] IHO Ex. I.
[5] IHO Ex. II.
[6] Id.
[7] IHO Ex. III.
[8] Ex. L at ¶17.
[9] Student’s previous IEP was from March 17, 2020.
[10] Ex. M at ¶5; Ex B.
[11] Ex. M at ¶10; Ex. C.
[12] Ex. M at 6.
[13] Ex. M at 7.
[14] Ex. M at ¶8.
[15] Ex M at ¶9.
[16] Ex. M at ¶10; Ex C.
[17] The submitted documents and affidavits detail the academic and work experiences of Private School Representative. Given the extensive academic training and experiences of the witness in the field of special education, I find they qualify as an expert witness in the area.
[18] Ex. L at ¶1.
[19] Ex. L at ¶2-3 related services providers; reviewing evaluations and progress reports; and working with the school’s psychologist and administration to implement Student support. 20 19F
[21] Ex. L at ¶7.
[22] Ex. L at ¶9-10.
[23] Ex. L at ¶72.
[24] Ex. L at ¶16
[25] Ex. L at ¶19.
[26] Ex. L at ¶80-81.
[27] Ex. M at ¶10; Ex. I.
[28] Ex. I.
[29] Ex. N.
[30] Ex. L at ¶8.
[31] Ex. M at ¶22.
[32] Ex. K.
[33] The DOE did not challenge the calculation of religious studies including 1.23% of instruction at Private School. Tr. 56.
[34] See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993).
[35] NY Educ. Law § 4404(1)(c).
[36] See 34 C.F.R. § 300.13.
[37] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[38] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[39] 20 U.S.C. § 1415(b)(6)(A).
[40] Tr. at 30-31.
[41] Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent.l Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[42] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[43] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs.
[44] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[45] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[46] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130.
[47] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192.
[48] 34 C.F.R. § 300.320(a)(7).
[49] V.A. v City of NY, 2022 US Dist LEXIS 84556, at 14-15 (EDNY 2022); T.Y. ex rel. T.Y. v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); C.F., 746 F.3d at 79.
[50] S.Y. v. N.Y.C. Dept. of Educ., 210 F. Supp. 3d 556, 574-75 (SDNY 2016).
[51] Id., citing FB v. N.Y. City Dept. of Educ., 132 F. Supp. 3d 522, 541-43 (SDNY 2015).
[52] Id.
[53] Id.
[54] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541-42, quoting V.S. ex rel. D.S. v. N.Y. C. Dept. of Educ., 25 F. Supp. 3d 295, 299 (EDNY 2014); S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 573-575.
[55] FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541 (Finding that the information sought by Parents was directly relevant to their ability to assess the proposed placement and its capacity to implement the IEP).
[56] Id. at 544.
[57] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[58] Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[59] Gagliardo, 489 F3d at 112 (“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.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006).
[60] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[61] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014).
[62] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[72] Ex. M at ¶21-24; Ex. I.
[73] Ex. M at ¶24; Ex. I.
[74] Ex. K.
[75] See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014).
[76] Ex. L at 44; Tr. at 56.
[77] See Forest Grove, 557 U.S. at 247; Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, 78 (Dist. Conn 2012).
[78] See Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78, citing J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606 (SDNY 2011).
[79] Id.
[279] and model forms are available at http://www.sro.nysed.gov.