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FINDINGS OF FACT AND DECISION
Case Number: 261965
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Oren Varnai
Date of Filing: 9/18/2023
Hearing Requested by: Parent
Date of Hearing: 11/1/2023
Record Close Date: 11/7/2023
Date of Decision: 11/7/2023
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
1. REDACTED for the parent, (hereinafter referred to as “Parent’s attorney”)
For the Department of Education:
1. REDACTED appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
REDACTED TERMS
REDACTED Service Provider
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 261965 THE NEW YORK CITY Oren Varnai DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Background
& Jurisdiction This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 9/18/2023, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). Parent alleges that the Department of Education (“DOE”) failed to implement an individualized education service plan (“IESP”) for the 10-month 2023-2024 school year. The Parent specifically seeks a compensatory education award consisting of: a. Special Education Teacher Support Services ("SETSS"), in a group setting, 5 times per week, period duration.
II. Procedural History
I was appointed on 10/3/2023. A settlement conference before an impartial hearing officer not appointed to adjudicate this action was held virtually on 10/27/2023. The Due Process Hearing (“DPH”) took place on 11/1/2023, whereby Parent presented documentary evidence, and the testimonial evidence of Service Provider, and DOE presented no evidence. The Parties agreed that Pendency lied in the 8/14/2019 IESP.
In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the 8/14/2019 IESP, thereby denying the Student access to equitable services for the 2023-2024 school year, and that the relief Parent seeks, funding for the provision of services directly to the Student consistent with the IESP, is appropriate compensatory relief. [1]
III. Finding of Facts and Decision After a full review of the record generated at hearing, I make the following findings of fact and determinations.
It is uncontested that the Student and Parent reside in New York City and the Student attended the parental placement school during the 2023-2024 school year. Furthermore, it is uncontested that the parental placement school is located within the geographic boundaries of the DOE. The Parent did not challenge the content of the 8/14/2019 IESP, merely the delivery of the recommended services. See 11/1/2023 Hearing Transcript. [2] Moreover, the parties agree to the following operative facts:
1. The 8/14/2019 IESP is the operative program for this student for the 10-month 2023-2024 school year.
2. The DOE did not implement the IESP’s mandates.
3. DOE did not present any evidence or argument as to what an appropriate rate should be, and any services provided to Student during the 10-month 2023-2024 school year pursuant to the recommendations of the IESP should be funded at a “reasonable market rate with a provider of Parent’s choosing.” DOE’s position that the reasonableness should be determined by the DOE’s implementation unit, which an order of “reasonable market rate” will effectuate. 4. In considering the above representations, it is clear that the parties agree on the essential nature of the parent’s dispute, to wit: Student is entitled to services as described in the IESP and that the DOE did not provide such services. Moreover, there is no dispute for me to resolve between the parties as to how any IESP services provided to Student should be funded.
A. Burden
Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404(1)(c); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014))
B. FAPE
The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
C. Dual enrollment
A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2)). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c(2)). Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law§ 3602-c(2)(b)(l)).
Here, there is no dispute that Student is entitled to services pursuant to the IESP dated 8/14/2019 with the parties agreeing to the essential, operative facts (see above). Moreover, the implementation of services falls on the district of location insofar as "boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Educ. Law § 3602-c(2)(a)). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (Educ. Law § 3602c(2)(b)(1)). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
D. Compensatory Relief a. A Burlington/Carter Analysis is Inappropriate
Some State Review Officers (“SRO”) in the Office of State Review have stated that Impartial Hearing Officers should apply the 3-Prong Burlington/Carter analysis instead of a compensatory services approach when deciding cases in which the Parent alleges that the DOE failed to implement an IESP.[3] I respectfully disagree for the reasons outlined below.
Section 3602-c is entirely a creature of state law, and it does not have a corollary in the IDEA or other federal statutes. The Burlington/Carter cases involved Parents who (1) rejected the school district’s IEP as inappropriate and (2) unilaterally placed their children in other schools. To apply these cases to a NYS statute is illogical since the Supreme Court dealt exclusively with the IDEA. Relatedly, Parents wishing to challenge administrative decisions vis-à-vis the Education Law appear to require appeals to State Court as opposed to Federal Court, while purely IDEA issues that can be appealed to either venue. In the instance for which Parent seeks a different level of services from those outlined in the IESP, the disagreement is merely a matter of amount rather than of kind. Rather, Parent and the District of Residence (“DOR”) both agree that the student is entitled to services, be it SETSS and/or related services, following the timely request for dual enrollment services for the school year at issue. DOR need merely defend its CSE’s recommendation and, should it fail to meet its burden, then the sought-for remedy remains the same – a search for a mechanism of payment for services to which DOR otherwise agrees that the student is entitled.
In Burlington, the Court references rejection of an IEP when it found that “[t]he first question on which we granted certiorari requires us to decide whether this grant of authority includes the power to order school authorities to reimburse Parents for their expenditures on private special education for a child if the court ultimately determines that such placement, rather than a proposed IEP, is proper under the Act.”[4] Likewise, the Court limited the discussion to schools when it wrote, “it seems clear beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.” [5]
Unlike in Burlington and Carter, in this case, Parent and the DOE agree that the services in the Student’s IESP were appropriate. The dispute between the parties revolves around the DOE’s unwillingness and/or inability to provide to Student with services outlined in their own proposed plan. Also, unlike in Burlington and Carter where the parents placed the students in private schools, in this case, though Student may be in a private school, only the supportive services are requested, not tuition reimbursement. Relatedly, tuition reimbursement is invariably attached to a Parent’s obligation to pay. That obligation is typically for the duration of an entire school year. 3602-C cases are fundamentally different because, even if there were a contract, it is a fee-for-service arrangement whereby payment is due upon each session of special education related services provided to the student. Irrespectively, the below order explicitly provides DOE with a mechanism to extinguish any future payment to a related services or SETSS provider by simply implementing its own IESP. IHO’s order does not obligate DOE to make any payments so long as DOE implements.
Applying a Burlington/Carter analysis to failure-to-implement cases forces Parent into a predicament that is contrary to the purposes of the IDEA and state law. If the district fails to implement the IESP, Parent must either pay for the services the student should have been receiving, in which case the services are no longer “free,” or Parent must forgo the services pending the outcome of the litigation, which is inappropriate as it forces Student to be without services. Ironically, Burlington addressed this exact situation when the Court found that “[t]he Act was intended to give [] children [with disabilities] both an appropriate education and a free one; it should not be interpreted to defeat one or the other of those objectives.”[6] As such, applying Burlington/Carter creates unintended outcomes that defeat the purpose of the IDEA and Section 3602-C. Even more fundamentally, since FAPE is not implicated in 3602-C cases, the above discussion could be reasonably argued as inapplicable, because the caselaw on IDEA specifically deals with FAPE. Therefore, cases addressing FAPE head-on, such as Burlington/Carter, cannot be the legal framework applicable to non-FAPE cases such as 3602-C.
In a recent decision, the Office of State Review favored a Burlington analysis because the “administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry.”[7] However, Burlington/Carter requires IHOs to assess the appropriate cost of a private school’s tuition, thus setting a “rate.” IHOs regularly examine evidence of rates for Independent Educational Evaluations and compensatory services for students who attend public schools and have been denied a FAPE. The administrative due process system was specifically designed to address special education claims and set rates for tuition and services where necessary. The same recent SRO decision stated that the attempts to analyze Section 3602-C failure-to-implement cases “that do not use a Burlington/Carter analysis have tended to lead to chaos,” [8] but I disagree. In my view, these types of cases (including this case) are simple: DOE recommended, agreed to, and was supposed to, provide a service which it failed to provide, so Student is entitled to compensatory services, albeit on a prospective basis due to the ongoing harm.
I also note that the Office of State Review—collectively—has been inconsistent as to whether to apply a Burlington/Carter analysis or compensatory analysis. For example,[9] one SRO used a compensatory services analysis in a Section 3602-C case. Therefore, even some SROs believe that a compensatory services approach is the appropriate approach to deciding these cases.
Using a Burlington/Carter analysis improperly places a burden on the parent. In New York, school districts have the burden of proof –including the burden of production and burden of persuasion – except when a Parent is seeking tuition reimbursement for a unilateral placement.[10] Even then, Parent must only show that the placement they selected is appropriate.[11] The New York State Education Department (“NYSED”) itself recognizes that parents only have a burden related to the appropriateness of a private school.[12] The plain meaning of the term tuition is the cost paid for enrollment in a school. Additionally, the term “placement” in IDEA cases has also meant a school, not services. [13]
Finally, Educ. Law § 4404(5) defines tuition as “instructional services.”[14] The definition of “instructional services, does not include the “related services” sought by parents in these actions. The Commissioner of Education defines related services as “developmental, corrective, and other supportive services as are required to assist a student with a disability.”[15] The definition of SETSS places these services as “related” services not “instructional.” The argument could be made that these services are instructional, but I find that they are not, and they should not be lumped with cases involving the Burlington-Carter analysis.
Clearly, the law regarding the burden in New York was meant to address cases in which a parent unilaterally places the student in a private special education school, not failure-to-implement IESP cases, and to require a Burlington/Carter analysis would shift the burden regarding “prong II” to Parent, which is clearly not what NY Educ. Law § 4404(1)(c) intended to accomplish. As such, when DOE fails to implement the services on a student’s IESP, as it has done here, a compensatory services analysis is the appropriate method of developing a remedy.
b. A Compensatory Relief Analysis is Appropriate
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-C is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA.[16] Under the IDEA, courts can “grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.”[17] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so.[18] Although an award of damages is not available under the IDEA, 19 “a court may award various forms of 19 see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002). retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [20]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. [21] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA.[22] Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" [23]
Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy.[24] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. [25]
While it may very well be permissible for a district to include Parent in the identification of a particular provider, especially if Parent is willing and able to do so, it does not follow that the responsibility to redress Parent’s inability to locate a provider is shifted away from DOE. DOE does not explain why it did not simply schedule the special education services as mandated by the IESP and, in essence, inform Parent where and when the services would be available, and at which time Parent would have the responsibility to produce the student in order to receive the services.
Parent was seeking prospective and ongoing compensatory education until such time as DOE implements the IESP. Once DOE implements the provisions of the IESP, Parent will no longer be entitled to unilateral procurement of services. Any unilateral provision of services up until the date of this Order was covered by Student’s right to Pendency. Nonetheless, Parent provided sufficient evidence to establish that the selected provider was appropriate.
An order allowing Parent to prospectively procure services DOE should have been providing all along is not an enforcement of implementation; it is merely a mechanism that allows DOE to implement the services it had contracted to provide, or to allow Parent to seek out private providers—this is a question of equity upon which IHOs can rule. I also have serious concerns with applying the Burlington/Carter analysis retrospectively. Cases in which Parent is seeking tuition reimbursement when FAPE has been denied is markedly different from Education Law 3602-C equitable services cases.
There is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2023-2024 school year. After considering the representations of the Parties, I find that Student is entitled to the services described in the 8/14/2019 IESP and that it is the DOE’s responsibility, as the district of location, to provide same. Therefore, the DOE must reimburse and/or directly fund the recommended services outlined in this order and must fund the provision of such services at a reasonable market rate.
E. Pendency
Under the IDEA and New York State Law, a student is to remain his or her then current educational placement, unless the student’s parents and the District agree otherwise, for the duration—or pendency—of any due process proceeding relating to the identification, evaluation, or placement of the student.[26] Pendency serves as an automatic injunction, and there is no requirement that the moving party meet the requirements of injunctive relief of irreparable harm, likelihood of success on the merits, or a balancing of the equities or hardships.[27] The stated purpose of pendency is to maintain the Student’s status quo as it existed on the date of the filing of the DPC, and to provide consistency and stability in the education of a student with a disability in order to "strip schools of the unilateral authority they had traditionally employed to exclude disabled students . . . from school."[28] Pendency is also evaluated on its own, without considering the appropriateness of the program the CSE has offered the Student, in that “pendency placement and appropriate placement are separate and distinct concepts.” [29]
Pendency under the IDEA does not necessitate a particular site or location[30] as the “current placement is generally not considered to be location specific,”[31] or at a particular grade level.[32] The inquiry focuses on the student’s then current educational placement which has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP.[33] Pendency "requires a school district to continue funding whatever educational placement was last agreed upon for the child, 34” with entitlement to the stay-put arising when a due process notice is filed. [35]
Educational placement is "the general type of educational program in which the child is placed,"[36] and "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers."[37] If there is an agreement between the parties with respect to placement during the due process proceedings, it would serve to supersede other agreements, and a new IEP need not be
34 Id. created.[38] Finally, a prior un-appealed IHO decision establishes a student's pendency as his current educational placement. [39]
Here, DOE did not dispute that the IESP dated 8/14/2019 constitutes Student’s pendency.
IV. Orders NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that, for purposes of Pendency, which lies in the 8/14/2019 IESP, DOE reimburse and/or directly fund actual hourly rates charged, immediately upon submission of invoices and service provision dates, and a valid contract between the Parent and properly licensed/certified (if applicable) provider of Parent’s choosing, from the date of the filing of the DPC until the date of this order, for the 2023-2024, 10-month, school year, the following:
a. Special Education Teacher Support Services ("SETSS"), in a group setting, 5 times per week, period duration.
2. ORDERED that, until such time as DOE implements the 8/14/2019 IESP, DOE shall reimburse and/or directly fund, immediately upon submission of invoices and service provision dates, and a valid contract between the Parent and properly licensed/certified (if applicable) provider of Parent’s choosing, at a reasonable market rate, for the entirety of the 2023-2024, 10-month, school year, the following:
a. Special Education Teacher Support Services ("SETSS"), in a group setting, 5 times per week, period duration.
DATED: 11/7/2023 SO ORDERED
Oren Varnai, IHO
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 proceedings 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Oren Varnai, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.
DATED: 11/7/2023 CERTIFIED BY
Oren Varnai., IHO
EXHIBITS
PARENT EXHIBITS
A. DPC 9/18/2023 7 pages
B. IESP 8/14/2019 10 pages
C. Letter Requesting Services 5/24/2023 1 page
D. Contract 8/22/2023 4 pages
E. Progress Report 5/11/2023 7 pages
F. Teacher Certification 9/14/2021 1 page
G. Affidavit of Service Provider 10/24/2023 6 pages
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. None None None
Footnotes
[1] There was no discussion of DOE’s failure to develop a more current IESP/IEP, and the Parties assumed that the outdated 8/14/2019 IESP represented Student’s current programming that required implementation.
[2] In that the transcript from the hearing has not been finished, reference to the transcript as a whole is made herein.
[3] Application of the New York City Department of Education, Appeal No. 23-071.
[4] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 369, (1985).
[5] Id, at 369.
[6] Burlington, 471 U.S. at 372.
[7] Application of the New York City Department of Education, Appeal No. 23-071.
[8] Id.
[9] Application of a Student with a Disability, Appeal No. 23-065.
[10] NY Educ. Law § 4404(1)(c).
[11] Id.
[12] See New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy March 2023, available at https://www.nysed.gov/sites/default/files/special-education/nys-608-analysis-updated-march-2023_.pdf (stating “[t]he law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school” at p. 11.) (Emphasis added).
[13] See 34 C.F.R. 300.130 where the definition of parentally placed private school children means placement in schools that meet the definition of elementary or secondary schools.
[14] Education Law § 4401 [5] defines “tuition” as “the per pupil cost of all instructional services, supplies and equipment, the operation of instructional facilities and allocable debt service for the instructional facilities, as determined by the commissioner” [emphasis added].
[15] “Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school nurse services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students.” NYCRR § 200.1(qq).
[16] See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017).
[17] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[18] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[20] Doe v. East Lyme, 790 F.3d at 454.
[21] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[22] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[23] Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[24] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[25] Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
[26] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M., 752 F.3d at 170-71; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 [S.D.N.Y. 2013]; Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. 2005]
[27] Zvi D., 694 F.2d at 906; see Wagner v. Bd. of Educ. of Montgomery County, 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996].
[28] Honig v. Doe, 484 U.S. 305, 323 [1987] Evans v. Bd. of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 [S.D.N.Y. 1996], citing Bd. of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 [E.D.N.Y. 1985].
[29] Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459.
[30] Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents & Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 [2d Cir. 1980].
[31] Child's Status During Proceedings, 71 Fed. Reg. 46709 [Aug. 14, 2006].
[32] Application of a Child with a Disability, Appeal No. 03- 032; Application of a Child with a Disability, Appeal No. 95-16.
[33] Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71
[35] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015]. See Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987]).
[36] Concerned Parents, 629 F.2d at 753, 756.
[37] T.M., 752 F.3d at 171.
[38] see Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].
[39] Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197.