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NYSED # 605038 - NYC #252500
Findings of Fact and Decision
Case Number: 252500
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., REDACTED Service District REDACTED Impartial Hearing Officer: Kevin T. McGrath
Date of Filing: August 10, 2023
Hearing Requested by: REDACTED (Parents)
Date of Hearing: November 30, 2023
Record Close Date: December 7, 2023
Date of Decision: December 7, 2023 Findings of Fact and Decision i
Names and Titles of Persons Who Appeared on November 30, 2023: For the Department of Education (DOE): REDACTED, Esq. Agency Attorney
For the Student:
REDACTED, Esq., REDACTED
REDACTED – Parent and Witness REDACTED, Director of REDACTED - Witness by affidavit only
INTRODUCTION
Parents filed a Due Process Complaint (DPC) on, or about, August 10, 2023. In the DPC, Parents allege that the Department of Education (DOE) failed to offer Student[1] a free appropriate public education (FAPE) for the 2023-2024 school year. [2]
Parents seek an Order that the DOE reimburses/directly funds 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 2023-2024 school year. The DPC asserts the DOE failed to provide Student with a FAPE for the 2023-2024 school year when its Committee on Special Education (CSE) failed to create an Independent Educational Program (IEP) and to provide an appropriate school location. [3]
As detailed below, I hold: (1) concerning the 2023-2024 school year, the DOE denied Student a FAPE, (2) that Private School meets Student’s individual educational needs; and is an appropriate placement for Student; and (3) the equities in the action favor Parents. Accordingly, Parents’ request for tuition reimbursement/direct funding is GRANTED.
PROCEDURAL HISTORY
I was appointed as the Impartial Hearing Officer on August 14, 2023. The DOE did not hold a resolution meeting in this action. A Due Process Response was served on August 16, 2023.[4] A Pre-hearing Conference was held on September 11, 2023, and a Pre-hearing Conference Summary and Order was issued the same day.[5] Status Conferences were held on October 11, 2023 and October 25, 2023 with Status Conference Summaries and Orders being issued the same day.
A merits hearing was held before me on November 30, 2023.[7] The DOE did not produce any exhibits and declined to make an opening or closing argument, present testimony evidence, or crossexamine the witnesses. Also, at the November 30, 2023 hearing, Parents’ Representative presented [8]
18 exhibits, all admitted into the record without objection. Parent #1 appeared at the hearing to 9 [10] provide testimony on Student's behalf.
Id.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student was REDACTED years old at the start of the 2023-2024 school year and is currently 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 “Autism.”[11] Additionally, Student has been diagnosed with autism spectrum disorder, infantile spasms/seizure disorder, severe global developmental delays, and glycosylation.[12] Student is described as being non-verbal, relying on caregivers to complete all daily living skill activities (including bathing, grooming, dressing, and oral hygiene), requiring supervision to eat and drink, and requiring the immediate intervention of medication when suffering a seizure. [13]
An IEP for the 2022-2023 school year was created for Student on October 18, 2022, that included placement in a classroom with six (6) students, one (1) teacher, and three (3) assistants (6:1:3) at an NYSED approved non-public residential facility. The Committee for Special Education (CSE) placed the Student at School #1. With little notice, in June 2023, Parents were informed that School #1 was closing. On June 30, 2023, the DOE sent a letter designating School #2 as Student’s [14] new placement location for the 2023-2024 school year.[15] An IEP was not created for Student for the 2023-2024 school year.
After receiving a school placement location letter, Parents investigated School #2 on July 6, 2023 [16], and spoke with the school’s Program Director. Parents maintains that School #2 is not appropriate for Student because: 1) School #2 would hold the “bulk of instruction” in small groups of 2-6 students and that the school cannot accommodate a student who needs 1:1 instruction; 2) School #2 was not presently hiring paraprofessionals (and could not indicate when a paraprofessional would be available for Student); 3) when hired, a paraprofessional cannot collect data unless the data is related to a student’ behavior reduction plan; 4) School #2 cannot address Student’s daily living skills (such as not being able to have Student shower to teach Student how to bathe independently); 5) School #2 cannot provide Student with opportunities to practice skills in a real live community setting; 6) School #2 would not provide a quiet space without distractions and disruptions for Student to use or to acquire new skills; 7) Program Director and School #2 instructors “have little experience working with dually diagnoses students who have significant medical and developmental issues;” 8) Program Director indicated School #2 has “challenges staffing the classrooms, and classrooms sometimes have 1 teacher and 2 teaching assistants;” and 9) Program Director was unable to confirm that School #2 would be fully staffed for the first day of the school year. [17]
On July 7, 2023 Parents sent the DOE an email objecting to Student’s placement at School #2 and requesting another program placement.[18] On July 13, 2023, the DOE sent a correspondence that again designated School #2 as Student’s school placement location for the 2023-2024 school year.[19] After that, on July 13, 2023, Parents sent a “Ten-day notice” stating their intent to place Student at Private School.[20] Student was then enrolled at Private School for the 2023-2024 school year. [21]
Private School Private School Representative testified to the curriculum and Students' progress at Private School. Private School Representative is the “founder and director” of Private School.[22] They possess a Ph.D. in Learning Processes and Behavioral Science and an S.A.S. in School Administration and Supervision.[23] Private School Representative’s responsibilities include training and supervising staff, hiring staff members, admitting and placing new students, communicating with parents, and implementing an organizational system for disseminating information and state-of-the-art intervention across classrooms.[24] They are involved with Student’s programs and the “ongoing analysis of the appropriateness and effectiveness of intervention strategies employed.” [25]
Private School serves students with autism.[26] The school utilizes ABA methodology, and classrooms can access a Board-Certified Behavior Analyst (BCBA).[27] Instructional staff are certified teaching assistants who are also Registered Behavior Technicians (RBT) or are completing the RBT certification. Private School Representative is familiar with Student’s special education needs from their training of staff and analyzing Student’s performance data.[28] Student is currently placed in a class of six (6) students, with one (1) teacher and three (3) assistants. [29]
Student is progressing in all areas (i.e., academic, behavioral, communication, and socioemotional) due to the education at Private School.[30] Parents executed an enrollment contract with Private School for the 2023-2024 school year. Tuition at Private School is $135,407.00. Parents
31 [32] paid $10,000.00 towards the tuition for 2023-2024 school year. The enrollment contract contains a [33] provision allowing for the release from the agreement if Parents accept an appropriate public-school placement. Parents acknowledge they remain responsible for the total tuition regardless of the [34] outcome of a due process hearing. Parent#1 states it would be a financial hardship for them to fund [35]
Ex. R at ¶52. the tuition at Private School directly. [36]
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 representative of 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.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, establishing a denial of 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. In New York, [37] 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. [38]
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.[39] When the local education 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.[40] To meet its substantive FAPE obligations, a school 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.”[41] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [42]
Prong I
As detailed herein, the DOE did not establish a FAPE was provided under Prong I standard to Student for the 2023-2024 school year.
The DOE declined to 1) offer any documents as evidence, b) provide witness testimony, c) cross-examine the witnesses, or d) present an opening or closing statement. At the hearing, the DOE’s Representative did not admit that Student was denied a FAPE for the 2023-2024 school year. [43] Nonetheless, the absence of any 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 a FAPE was provided to Student.
The record demonstrates the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2023-2024 school year. The DOE has not shown School #2 could implement Student’s IEP.
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1.[44] However, the IEP, among other requirements, must establish annual 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 reflects
[45] the results of evaluations to identify the student's needs,[46] offers sufficient special education services, [47] [48] and is properly implemented. To demonstrate a FAPE, the DOE must offer “an IEP that 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 [49]
‘meaningful’ benefit.” The DOE failed to demonstrate that it created an IEP that outlined the [50]
Student’s needs, established goals, and provided a program likely to produce progress for the 2023-2024 school year. The unchallenged and unimpeached testimony establishes that School #2 could not provide 1:1 instruction; could not guarantee the proper staffing of paraprofessionals; could not provide Student with opportunities to practice skills in a real live community setting; could not provide Student a quiet space without distractions and disruptions could not confirm they would be fully staffed for the first day of the school and able to provide a student/teacher ratio of 6:1:3 as required in the IEP. The U.S. Court of Appeals, Second Circuit, has held that a parent can challenge the placement location if the placement school is "facially deficient" and "cannot satisfy the IEP's requirements."[51] Accordingly, I find that the DOE denied Student a FAPE because the DOE failed to establish that the designated school could implement Student’s most recent IEP.
As detailed above, the evidence demonstrates that Student was denied a FAPE for the 2023-2024 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.”[52] This means that Private School must offer an educational program that meets students’ special education needs.[53] A parent seeking tuition reimbursement has the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. When determining whether a unilateral placement is appropriate, [54] the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.” A private placement is appropriate if it provides instruction designed to meet [55] a student’s unique needs.[56] The parent must also demonstrate that the placement provides educational 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. [57]
Taken as a whole, the testimony and documentary evidence show Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” to the Student that will enable them to make progress. The evidence demonstrates Private School is an appropriate placement because they: (1) have hired specially trained teachers to educate students with difficulties in the acquisition of reading and writing skills and with special education needs; [58] (2) provide Student with a student-to-teacher ratio of 6:1:3 for academic instruction, and 1:1 intervention to support Student; (3) individualizes instruction for Student in education instruction; 59 [60] and (4) have shown Student is making objectively established progress. [61]
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.
Accordingly, I hold that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under the Burlington/Carter Prong II standard.
Id. at ¶7, 21, 31, and 36.
Prong III
As detailed herein, the equities favor Parents under the third Burlington/Carter standard.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. “[A] major consideration in deciding whether the third factor is satisfied is whether
62 the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.” 63 Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notifying the DOE about the unilateral placement
decision.
In this matter, Parents attended the 2022 IEP meeting. They discussed Student’s education plan, conveyed their concerns about the change in the school placement, and detailed their objections to School #2. Parent#1 toured Private School to inspect and inquire about services and class
65 structure offered and communicate with school employees to discuss Student’s education needs. 66 Parents provided the DOE with their concerns about the DOE's failure to offer Student a FAPE in the TDN in a timely manner. 67 Furthermore, the DOE was timely notified of Parents’ intention to place Student at Private School unilaterally. 68
Parents seek reimbursement for their Private School tuition costs. This is an available remedy under the IDEA and permitted without showing a financial hardship. Parents signed a contract
69 70 with Private School for the 2023-2024 school year. Parents remain liable for all tuition if a claim
[71] under IDEA is unsuccessful.[72] The evidence demonstrates that parents would suffer financial hardship without the DOE directly funding the unpaid portion of Private Schools' tuition. I find the [73] costs associated with Private School, including tuition, are reasonable. Moreover, I hold that the evidence establishes that Parent cooperated with the DOE and the CSE’s efforts to develop the 2022 IEP and recommendations, such as by having representatives from Private School attend the IEP meeting; providing the CSE Private School’s progress updates; and investigating the DOE’s recommended placement location. [74]
Gagliardo, 489 F3d at 112. 63
Bettinger v. N.Y.C Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY 2007). 64
See D.A. v. N.Y.C. Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011). 65
Ex. R at ¶14-15, 33; Ex. D; Ex. F. 66
Ex. R at ¶18-32. 67
Ex. R at ¶33; Ex. D. 68
Id. 69 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”). 70 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.”)
ORDER
NOW, THEREFORE, BASED ON THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2023-2024 school year, and IT IS FURTHER ORDERED THAT:
(2) Parent’s request for the reimbursement/direct funding of Student’s tuition for the unilateral placement at Private School is GRANTED for the 2023-2024 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 2023-2024 school year in a combined amount not to exceed $135,407.00 within 35 days of receipt of the invoice from Private School or Parent.
So Ordered.
Kevin T. McGrath Dated: December 7, 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 Program Director
REDACTED School #1
REDACTED School #2
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
None
PARENTS EXHIBITS
A. Request for Impartial Hearing 08/10/2023 4 pages
B. Due Process Response 8/16/2023 3 pages
C. School Location Letter 07/13/2023 2 pages
D. Ten-Day Notice 06/30/2023 1 page
E. Developmental Pediatric Report 09/01/2021 1 page
F. Email Exchange – Parents and District Various dates 4 pages
G. Life Plan 09/21/2022 12 pages
H. IEP 10/18/2022 38 pages
I. REDACTED Program Description Undated 1 page
J. Occupational Therapy Evaluation Report 09/02/2023 5 pages
K. Speech and Language Evaluation Report 09/28/2023 5 pages
L. Enrollment Contract 07/09/2023 7 pages
M. Attendance Report 2023-2024 1 page
N. Payment Affidavit 07/19/2023 1 page
O. Alternative Education Schedule 2023-2024 1 page
P. Progress Report 1 11/07/2023 10 pages
Q. Affidavit of Direct Testimony – REDACTED 11/13/2023 10 pages
R. Affidavit of Direct Testimony – REDACTED 11/07/2023 7 pages
IHO EXHIBITS
I. Pre-hearing Conference Summary and Order 09/11/2023 1 page IHO
II. Status Conference Summaries and Orders various 5 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] Ex. B.
[5] IHO Ex. I.
[6] IHO Ex. II.
[7] Tr. at 66-67.
[8] The DOE Representative was late in appearing at the hearing, but given the opportunity to present an opening/closing or examine witnesses who had already testified.
[10] Only Parent #1 provided an affidavit and testimony evidence. There was no suggestion in the record of a disagreement between the two parents regarding the facts, observations, conclusions, and opinions provided by Parent #1. Therefore, the decision will refer to Parent #1’s testimony collectively for both parents.
[11] Id.
[12] Ex. R at ¶2.
[13] Ex. R at ¶3-7.
[14] Ex. R at ¶13.
[15] Ex. R at ¶14.
[16] Ex. R at ¶18.
[17] Ex R at ¶20-32. These allegations, opinions, and statements claimed by Parent #1 were contained in the DPC and repeated during Parent’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate.
[18] Ex. R at ¶33.
[19] Ex R at ¶33; Ex C.
[20] Ex. R at ¶33; Ex D.
[21] Ex. R at ¶34.
[22] Ex. Q at ¶1.
[23] Ex. Q at ¶2.
[24] Ex. Q at ¶3.
[25] Ex. Q at ¶3.
[26] Ex. I.
[27] Ex. Q at ¶6-7.
[28] Id. at ¶13.
[29] Id. at ¶7.
[30] Ex. Q at ¶30-44; Ex. R at ¶36-51; Ex. J; Ex. K; Ex. P. These allegations, opinions, and statements claiming progress at Private School were contained in the DPC and repeated during the witness’s testimony. The DOE failed to present any witnesses to challenge the veracity of the allegations, either in the case-in-chief or rebuttal. Accordingly, while the allegations are hearsay, they will be strongly weighted in favor of being accurate.
[32] Ex. R at ¶52; Ex. L.
[33] Ex. N.
[34] Ex. L at ¶8.
[35] Ex. R at ¶53.
[36] Ex. R at ¶53-56.
[37] 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).
[38] NY Educ. Law § 4404(1)(c).
[39] See 34 C.F.R. § 300.13.
[40] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[41] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[42] 20 U.S.C. § 1415(b)(6)(A).
[43] Tr. at 53.
[44] 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”).
[45] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[46] 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.
[47] 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.
[48] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[49] Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130.
[50] Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192.
[51] M.O. v. N.Y.C. Dept. of Educ., 793 F.3d 236, 244 (2d Cir 2015); see also E.B. v NY City Dept. of Educ., 2016 US Dist LEXIS 90311, at 17 (SDNY 2016).
[52] Carter, 510 US at 12, 15; Burlington, 471 US at 370.
[53] Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998).
[54] 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).
[55] Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115.
[56] 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).
[57] Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
[58] Ex Q at ¶6-8.
[60] Id. at ¶18-27.
[61] Id. at ¶31-44; Ex. J: Ex. K; Ex. P.
[71] Ex. R at ¶52; Ex. L.
[72] Ex. R at ¶53; Ex L at 7.
[73] Ex. R. at ¶53-56.
[74] 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).
[279] and model forms are available at http://www.sro.nysed.gov.