NY IHO #258069: Impartial Hearing...

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CASE NUMBER: 611001- NYC: 258069

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: September 7, 2023

Date(s) of Hearing: December 7, 2023

Actual Record Closed Date: December 13, 2023

Date of Decision: December 21, 2023

Time Sensitive No

Hearing Officer: Robin Levin, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 7, 2023

For the Student:

REDACTED (“Parent’s Attorney”)

REDACTED (“Parent”)

REDACTED (“Program Coordinator at the Service Provider Agency”)

For the Department of Education:

REDACTED (“DOE Representative”)

INTRODUCTION

This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.^[1] This case concerns the Student, who is currently REDACTED years old and is classified as a student with a Speech or Language Impairment.^[2]

On September 7, 2023, the Parent, through the Parent’s Attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”).^[3] In the DPC, the Parents alleged that the DOE failed to develop a procedurally and substantively valid Individualized Education Program (“IEP”) for the Student and failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2023-2024 school year.^[4] Specifically, the Parent alleged that the DOE’s Committee on Special Education (“CSE”) never convened an IEP meeting, never developed an IEP, and never offered the Student a public school placement for the 2023-2024 school year.^[5] The Parent alleged that the last time the CSE convened to develop an IEP for the Student was on February 12, 2020.^[6] Despite the February 12, 2020 IEP being outdated and expired, the Parent also alleged that the recommended program consisting of an integrated coteaching (“ICT”) classroom and related services would not provide the Student with the individualized instruction he needs to make meaningful progress during the 2023-2024 school year.^[7] Since the DOE failed to convene an IEP meeting for the 2023-2024 school and failed to provide the Student with any public school placement, the Parent seeks the continuation of the Student’s last agreed upon program, which includes Special Education Teacher Support Services (“SETSS”), speech-language therapy, occupational therapy, and physical therapy.^[8]

The Parent seeks an award of direct funding for the Student’s SETSS unilaterally obtained by the Parent, direct funding at an enhanced rate for the Student’s speech-language therapy, and related service authorizations (“RSAs”) for the Student’s physical therapy and occupational therapy services. As discussed below, I find that the DOE denied the Student a FAPE for the 2023-2024 school year. I find that the last agreed upon program which was unilaterally continued by the Parent is sufficient to meet the Student’s needs. I find that the equities support the Parent’s request for direct funding in full for SETSS and speech-language therapy, and the DOE shall issue RSAs to fund the Student’s physical therapy and occupational therapy services.

PROCEDURAL HISTORY AND POSITIONS OF THE PARTIES

On September 18, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On November 3, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). The matter was scheduled for a pendency hearing and a DPH, and I granted a joint request to extend the compliance date due to witness availability.^[9]

A virtual DPH was held on December 7, 2023. It was a closed hearing. The Parent was present and represented by the Parent’s Attorney. The DOE Representative was also present. The DOE Representative declined to give an opening statement.^[10] The Parent’s Attorney gave an opening statement.11 The DOE Representative submitted three exhibits, all of which were admitted into the hearing record without objection.^[12] The Parent’s Attorney submitted^[11] exhibits, all of which were admitted into the hearing record without objection including affidavit testimony from the Parent and affidavit testimony from the Program Coordinator at the Service Provider Agency.13 The DOE Representative declined to call any witnesses at the hearing.^[14] The DOE Representative cross-examined the Program Coordinator at the Service Provider Agency and the Parent.^[15] The Parent rested, and both parties gave closing statements.^[16] The record was closed on December ^[13], 2023 after receipt of the hearing transcript.

In the DOE’s closing statement, the DOE Representative argued that the District should not be obligated to pay for some of the costs associated with operating the Service Provider Agency such as “professional development and materials, fringe benefits, administrative costs, technological equipment, and developmental costs, and overhead costs.”^[17] In addition, the DOE Representative argued that the Parent failed to show that the services are appropriate for the Student or establish that the Parent has a financial obligation to pay for the services.^[18] Lastly, the DOE Representative argued that the Parent “failed to provide any information regarding the market rate as to whether or not … $195 an hour was a fair market rate” for SETSS.^[19]

The Parent took the position that the DOE failed to meet its burden in showing that the Student was provided a FAPE for the 2023-2024 school year.^[20] In addition, the Parent’s Attorney argued that the SETSS provided to the Student are appropriate for him and allow him to make progress.^[21] Lastly, the Parent’s Attorney argued that the Parent cooperated with the CSE, but a program and placement were never offered to the Student for the 2023-2024 school year.^[22]

LEGAL FRAMEWORK

The Parent in this case is not seeking tuition funding for the Private School where the Student is parentally placed. Instead, this case concerns the Parent’s request that the DOE directly fund private services unilaterally obtained by the Parent including the cost of the Student’s SETSS and speech-language therapy at enhanced rates, and the Parent requests an order requiring the District to issue RSAs for the Student’s physical therapy and occupational therapy services for the 2023-2024 school year.^[23] State Review Officers (“SROs”) have applied the Burlington/Carter test in matters similar to the case at hand.^[24] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school or unilaterally obtain services for the Student and seek funding from the school district by filing a due process complaint.^[25] 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.”^[26] A school district must pay for the cost of the tuition or services selected by the Parent if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school and/or services selected by the Parent are appropriate; and (3) the equities favor an order of reimbursement or direct funding.^[27]

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.^[28] 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.^[29] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.^[30] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.^[31]

Furthermore, the IDEA contains a “Child Find” obligation, which is the duty to identify, locate and evaluate students who are suspected of having a disability and who need special education and related services.^[32] The obligation extends to all students suspected of having a disability requiring special education, “even if they are advancing from grade to grade.”^[33] The school district, parents, or other agencies can trigger the duty to evaluate a student.^[34] Once an evaluation request is made, the IDEA requires the school district to evaluate the child within sixty days to determine whether the student is a student with a disability under the IDEA.^[35] A school district must begin the evaluation process within a reasonable time after the district is on notice of a likely disability.^[36] A violation of the Child Find obligation is a violation of the IDEA.^[37]

In a due process complaint, parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.”^[38] 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.”^[39] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”^[40]

Moreover, a school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.^[41] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.^[42] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,43 (2) provide for the utilization of sufficient special education programs or services,^[44] and then (3) the IEP must be properly and timely implemented.^[45] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.^[46]

In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.^[47] Parents seeking reimbursement or direct funding “bear the burden of demonstrating that their 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). private placement was appropriate, even if the IEP was inappropriate.”^[48] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’”^[49]

A unilateral placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”^[50] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.^[51] Instead, parents must “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.”^[52] In addition, a unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.^[53] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.^[54] A placement must be “proper under the Act.”^[55] This means that a private school or service provider must offer an educational program which meets the Student’s special education needs.^[56]

Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their Prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.^[57] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”^[58] 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."^[59] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”^[60]

Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District.^[61] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid, whether there was any fraud or collusion in generating, or inflating, the amount of money to be charged to the school district, and whether the arrangement was fraudulent or collusive in any other respect.^[62]

“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.”^[63] Furthermore, direct funding is relief encompassed by the equitable remedial powers inherent in IDEA.^[64] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the [district] must pay the cost of the private placement immediately.”^[65]

FINDINGS OF FACT AND DECISION

After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant, and I find all the witnesses credible. I base the following on the record generated at the hearing.

The Student is currently REDACTED years old and is classified by the CSE as a student with a Speech or Language Impairment.^[66] Although he is in the REDACTED grade at the Private School, the Student’s disability affects him in school and he is significantly below grade level in all academic domains.^[67] The Student struggles with attentional issues and language deficits, requiring frequent prompting and redirection in order to stay on task.^[68] The Student learns best in a 1:1 setting with a multi-sensory approach using visuals and manipulatives to learn and maintain new skills.^[69] In reading, the Student struggles with decoding and comprehension.^[70] In spelling and writing, the Student’s encoding skills are delayed and the Student has difficulty organizing his thoughts and sharing information while writing in an organized manner.^[71] The Student also struggles in math, especially when solving word problems due to his Speech or Language Impairment.^[72]

Prong 1

The Parent alleged that the DOE denied the Student a FAPE for the 2023-2024 school year because the DOE never convened an IEP meeting, never developed an IEP, and never offered the Student a public school placement for the 2023-2024 school year.^[73] The Parent alleged that the last time the CSE convened to develop an IEP for the Student was on February 12, 2020.^[74] Despite the February 12, 2020 IEP being outdated and expired, the Parent also alleged that the recommended program consisting of an ICT classroom and related services would not provide the Student with the individualized instruction he needs to make meaningful progress during the 2023-2024 school year.^[75]

As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Representative offered into evidence the last IEP for the Student which is dated February 12, 2020.^[76] Therefore, the Student was previously classified by the CSE and was known to the District. However, there is no evidence in the hearing record showing that the CSE reconvened since February 12, 2020. While it was not the burden of the Parent to show that the DOE failed to provide a FAPE to the Student, the Parent testified credibly that the last IEP meeting for the Student was on February 12, 2020, corroborating the DOE’s own evidence of its failure to provide a FAPE.^[77] The law requires IEPs to be reviewed at least annually, and the District was required to have an IEP in place for the Student at the beginning of the 2023-2024 school year.^[78] The District failed to do so and also failed to provide any public school placement for the Student.

Moreover, the Parent did not agree with the CSE’s recommendations in the February 12, 2020 IEP or the CSE’s failure to reconvene to develop an IEP for the 2023-2024 school year, and thus, the Parent sent the DOE a letter (“Ten-Day Notice”) on August 21, 2023 explaining her concerns.^[79] The DOE did not respond to the Parent’s Ten-Day Notice and the CSE did not convene an IEP meeting for the Student or offer the Student any public school placement for the 2023-2024 school year even after the Parent reminded the District of its failure to hold an IEP meeting since 2020.^[80] Overall, I find that the DOE failed to offer the Student a FAPE for the 2023-2024 school year as the District failed to convene an IEP meeting, failed to create an IEP for the Student, and failed to offer the Student any public school placement. Prong 2

Next, I must consider whether the Parent’s continuation of the last agreed upon program was appropriate for the Student. As a remedy for the DOE’s failure to provide a FAPE for the 2023-2024 school year, the Parent is seeking funding for the services she obtained for the Student unilaterally including SETSS, speech-language therapy, physical therapy, and occupational therapy services during the 2023-2024 school year. The hearing record shows that on August 16, 2023, the Parent executed a Parent Service Contract, enrolling the Student in SETSS for the 2023-2024 school year.^[81] According to the Parent Service Contract, the cost of SETSS is $195 per hour and the Parent is liable for the cost of the SETSS in the event that the Parent does not prevail at the impartial hearing.^[82] According to the Service Provider Agency, for the 2023-2024 school year, the Student is receiving up to 15 hours per week of SETSS for 40 weeks, from September 7, 2023 to June 30, 2024.^[83] The Parent testified that the Parent could not afford to pay for the SETSS in the first instance and seek reimbursement, and her 2021 Tax Return shows an adjusted gross income of $REDACTED.^[84] The Parent also testified that she has been unable to secure a speech-language therapist at the DOE rate, and therefore, is seeking an enhanced rate for the Student to be able to receive speech-language therapy.^[85]

After a full review of the hearing record, I find that the evidence supports a determination that the last agreed upon program continued by the Parent is appropriate for the Student for the 2023-2024 school year. I find that the SETSS provided by the Service Provider Agency meet the Frank G. standard and provide the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of his unique circumstances.

Primarily, the Service Provider Agency provides the Student 1:1 instruction using a multi-sensory approach with visuals and manipulatives to help the Student learn new concepts and new skills.^[86] Additionally, the Service Provider Agency provides the Student with instruction from trained teachers who routinely attend trainings and professional development.^[87] The evidence shows that the Service Provider Agency ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.^[88] Both of the SETSS providers assigned to the Student by the Service Provider Agency are licensed and certified special education teachers.^[89] Therefore, I find that the teachers have sufficient training to teach the Student based on his unique needs and learning profile.

Furthermore, the Service Provider Agency developed a specialized program for the Student with individualized goals and a tailored curriculum to meet the Student’s needs, and thus, the Student had made progress with SETSS. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilaterally obtained services.^[90] While a student’s progress at a private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.^[91]

For example, while the Student struggles with decoding, the SETSS teachers assisted the Student in being “able to identify all vowels and consonants and provide their corresponding sounds. [The Student] is able to decode most diphthongs and digraphs. However, he struggles with blending sounds and has difficulties applying the phonics rules he already mastered when reading.”^[92] The Service Provider Agency developed goals for the Student to address his mastery of phonics and decoding.^[93] Moreover, while the Student has now mastered writing simple sentences, he has difficulty with writing paragraphs or essays, and the SETSS teachers are working with him to better organize his thoughts while writing and to improve his grammar and punctuation.^[94] Similarly, the Student has challenges with comprehension and the SETSS teachers are working with the Student to improve his ability to make “simple predictions, state cause and effect, sequence events and draw inferences in a story.”^[95] The SETSS teachers also work with the Student to address his challenges in math. The Student is working on multiplication, division, and fractions, and has various goals to meet to improve his basic understanding of mathematical concepts.^[96] I find that the tailored curriculum provided to the Student by the SETSS teachers assigned to the Student by Service Provider Agency is critical to enabling him to learn and make progress.

Additionally, I find that the related services of speech-language therapy, occupational therapy, and physical therapy are appropriate for the Student. The evidence shows that the Student is a student with a Speech or Language Impairment.^[97] He has articulation difficulties which further limit his expressive language skills and “he is highly distracted by his own mind and external stimuli.”^[98] He has difficulties with visual motor activities and difficulty planning, organizing, and sequencing complex and unfamiliar body movements in a coordinated manner.^[99] According to the last IEP dated February 12, 2020, the Student requires speech-language therapy, occupational therapy, and physical therapy to access his education.^[100]

Overall, the hearing record establishes that the Student’s unique special education needs have been met by the services obtained by the Parent. The instruction offered by the Service Provider Agency is “reasonably calculated to enable the child to receive educational benefits.”^[101]

I find that the Parent has met her burden under Prong 2 of the Burlington/Carter standard. Prong 3

Next, I must consider the equities. Overall, I find that the equities favor the Parent. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent fully participated in the last IEP meeting which was held on February 12, 2020.^[102] The Parent’s cooperation and participation weighs in favor of the Parent’s request under Prong 3 of the Burlington/Carter standard.^[103] Here, the Parent shared her concerns with the CSE and provided the necessary Ten-Day Notice of her intent to unilaterally obtain services for the Student if the DOE failed to convene an IEP meeting and create an IEP for the Student.^[104] The DOE did not submit any evidence at the hearing describing its response to the Ten-Day Notice.

Furthermore, the DOE did not provide any evidence of what constitutes a reasonable rate for SETSS or speech-language therapy for the 2023-2024 school year. The Program Coordinator at the Service Provider Agency testified that the rate of $195 per hour “includes one-on-one instruction, supervision, education resources and support, professional development and materials, fringe benefits, administrative costs, technological equipment and developmental costs and overhead costs.”^[105] While the DOE Representative argued that the District should not be required to pay for the costs listed above, I find that the rate of $195 per hour for SETSS is reasonable and supported by the hearing record. In addition, the Parent has been unable to locate a speech-language therapist at the DOE rate, and the Service Provider Agency testified credibly that related services are $250 per hour.^[106] I find this rate reasonable provided that the speech-language therapist is a licensed speech-language pathologist in the State of New York.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

1. ORDERED that the New York City Department of Education shall fund fifteen (15) hours per week of one-to-one SETSS by directly paying the Service Provider Agency or another service provider of the Parent’s choosing at a rate not to exceed $195.00 per hour for the 2023-2024 school year. The DOE shall pay the provider directly within 35 days of receipt of an invoice for the services rendered. The entire amount billed for SETSS for the 2023-2024 school year shall not exceed $117,000.00.

2. ORDERED that the New York City Department of Education shall fund three 45-minute sessions per week of speech-language therapy by directly paying a service provider of the Parent’s choosing at a rate not to exceed $250.00 per hour for the 2023-2024 school year.

The DOE shall pay the provider directly within 35 days of receipt of an invoice for the services rendered and proof that the speech-language therapist selected by the Parent is a licensed speech-language pathologist in the State of New York.

3. ORDERED that the New York City Department of Education shall issue Related Service Authorizations to fund two 45-minute sessions per week of individual physical therapy services for the Student for the 2023-2024 school year.

4. ORDERED that the New York City Department of Education shall issue Related Service Authorizations to fund two 30-minute sessions per week of individual occupational therapy services for the Student for the 2023-2024 school year.

SO ORDERED.

DATED: December 21, 2023

Robin Levin, Esq.

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.

APPENDIX A – EXHIBITS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 9/7/2023 3 pages

B. CPSE IEP 1/6/2015 14 pages

C. Ten Day Notice Letter and Email Confirmation 8/18/2023 2 pages

D. Enrollment Contract 8/16/2023 2023-2024 1 page

E. Affidavit of Services 11/14/2023 1 page

F. Provider Certifications Undated 2 pages

G. Invoice 11/05/2023 1 page

H. Progress Report 11/23/2023 4 pages

PARENT

I. 1040 Tax Return Testimony via Affidavit – Program Coordinator at 2021 3 pages

J. the Service Provider Agency 11/28/2023 3 pages

K. Testimony via Affidavit- Parent 11/28/2023 2 pages

DOE EXHIBITS

1. IEP 2/12/2020 31 pages DOE

2. IEP Attendance Page 2/12/2020 1 page DOE

3. Progress Report 3/13/2023 7 pages DOE

IHO EXHIBITS

None

Footnotes

[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Due Process Hearing will be referred to as “DPH Tr.” followed by the page number(s) within the transcript as needed.

[2] Ex. 1-1; Ex. A.

[3] Ex. A.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. It is undisputed that the last agreed upon IEP for the Student is dated January 16, 2015 (see Ex. B).

[9] See Order of Extension dated November 3, 2023. The pendency hearing scheduled for November 17, 2023 was cancelled because the parties reached an agreement on pendency (see Pendency Implementation Form signed on November 3, 2023).

[10] DPH Tr. 26.

[11] DPH Tr. 26-28.

[12] DPH Tr. 23-24.

[13] DPH Tr. 24-26. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”

[14] DPH Tr. 29.

[15] DPH Tr. 33-51.

[16] DPH Tr. 51-58.

[17] DPH Tr. 53.

[18] Id.

[19] DPH Tr. 58.

[20] DPH Tr. 54.

[21] DPH Tr. 54-55.

[22] DPH Tr. 56.

[23] Ex. A.

[24] Application of the New York City Department of Education, Appeal No. 23-071.

[25] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).

[26] 20 U.S.C. § 1415(b)(6)(A).

[27] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[28] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[29] 34 C.F.R. §300.13.

[30] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[31] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).

[32] R.E. ex rel. M.E. v. Brewster Cent. Sch. Dist., 180 F. Supp 3d 262, 268 (SDNY 2016).

[33] 34 CFR §300.11(c)(1).

[34] 20 USC §1414(a)(1)(B); 8 NYCRR §200.4.

[35] 34 CFR §300.301; 8 NYCRR §200.4(b).

[36] P v. West Hartford Bd of Ed., 885 F3d 735, 750 (2d Cir 2017).

[37] Id.

[38] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).

[39] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[40] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).

[41] Endrew F.,137 S.Ct. 988, 999.

[42] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).

[44] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).

[45] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.

[46] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

[47] NY Educ. Law § 4404(1)(c)).

[48] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).

[49] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[50] Frank G., 459 F.3d at 364-65; Gagliardo, 489 F.3d at 112.

[51] Frank G., 459 F.3d 356, 364; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).

[52] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.

[53] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

[54] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.

[55] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).

[56] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.

[57] See Carter, 510 U.S. at 16.

[58] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).

[59] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[60] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).

[61] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

[62] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[63] Carter, 510 U.S. at 16; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

[64] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 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”).

[65] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)

[66] Ex. 1-1.

[67] Ex. K-1.

[68] Id.

[69] Ex. H-1.

[70] Id.

[71] Ex. H-2.

[72] Id.

[73] Ex. A.

[74] Id.

[75] Id.

[76] Ex. 1.

[77] Ex. K-1.